Irwin Cotler

[Jobs, Growth and Long-term Prosperity Act, May 3rd, 2012]

Mr. Speaker, I am pleased to rise to address Bill C-38 on behalf of my constituents in Mount Royal.

While my constituents might understandably assume that the bill relates to the budget, in fact this 400-plus-page omnibus bill actually has very little to do with the budget. Many of the proposals therein have particularly deleterious consequences for the environment. Accordingly, I will be splitting my time with our environment critic, the hon. member for Etobicoke North.

A related problem is that while this budget implementation bill is supposed to flow from the budget speech, which itself is not only a financial statement but a statement of values and a reflection of priorities, this budget, in its reflection of priorities, does not note or even utter the words “social justice”. It does not note or even speak of “fairness” or “equality”. It does not note or even reference the Charter whose 30th anniversary we celebrate this year, nor does it reference or note anywhere the word “humanitarian”.

While the budget speech did outline certain measures that we see legislated in Bill C-38, this budget implementation omnibus bill goes above and beyond anything we have seen and beyond any of the enabling authority of the budget itself.

In its 400-plus pages, there are amendments to more than 60 statutes. It covers everything from fisheries to nuclear safety, from territorial borrowing limits to air transport. It is an enormous hodgepodge, bundling together legislation not unlike Bill C-10 that does not allow for the necessary differentiated parliamentary discussion and debate, let alone the necessary oversight of the legislation. It imbues the executive with arbitrary authority to the exclusion of Parliament, thereby serving as a standing abuse to the canons of good governance, transparency and accountability. Indeed, this alone should be cause for its defeat.

As Andrew Coyne has put it, and I quote, “The scale and scope is on a level not previously seen, or tolerated”. He notes that this bill makes “a mockery of the confidence convention” and that there is no “common thread” or “overarching principle” between the legislative items therein, let alone its standing contempt for Parliament in matters of process and procedure.

Moreover, and again on the crucial issues of parliamentary process and procedure, which are principled concerns, while the bundling together of disparate pieces of omnibus legislation as a confidence bill is problematic enough on its own, this bill is slated to go to the finance committee in its entirety. Accordingly, the review of the environmental regulations therein, which overhaul, weaken and undermine the Canadian Environmental Assessment Act and environmental protection as a whole, will thus not be reviewed by the Standing Committee on Environment and Sustainable Development, where it belongs. The provisions that abolish the First Nations Statistical Institute and make changes to the First Nations Land Management Act will not be the subject of examination and study by the Standing Committee on Aboriginal Affairs and Northern Development, where it belongs. I can go on with numerous examples in this regard.

If circumventing proper and thorough parliamentary review in committee was not enough, the government, as we saw earlier, has invoked time allocation to limit the amount of time and discussion on this bill.

I am not suggesting that invoking time allocation, as the government has done again and again, or the use of an omnibus vehicle, as has occurred with Bill C-10, are against the legislative rules. What I am suggesting, as have many commentators, is that its use here and now on this particular omnibus bill is unnecessary, prejudicial, suprisingly undemocratic, in effect, unparliamentary and otherwise unsubstantiated and unwarranted.

Surely if Parliament had to debate something like going to war, it would be easy to see why we might time-allocate to ensure we get to the most pressing debate first, or if there were court decisions that affected many statutes, we might easily welcome an omnibus bill that would make the same change to many statues. What is so disconcerting with Bill C-38 is that the government need not be in a rush. There is no coherent or compelling theme to the omnibus proposals contained in the bill.

The opposition is not opposed to some of what is in Bill C-38. For example, the proposed changes to the custom and tariff rules sound reasonable. What we are opposed to is the take it or leave it, one size fits all omnibus approach to legislating that does not allow the necessary differentiated and deliberative oversight or review, or review by the particular and appropriate parliamentary committees. The government and the opposition can co-operate if the government would simply respect the opposition and be responsive in debate.

Again, I will remind my colleague that the government assumes that its legislation in every instance is perfect and, in so doing, believes there are no amendments that need even be tendered let alone adopted. This occurred in the case of Bill C-10 when, in response to amendments I introduced at the time, the government summarily rejected them because they came from the opposition, it seemed. It reintroduced the amendments on its own, a matter that could have been avoided, as the Speaker then noted in terms of the procedural complications that then ensued. Moreover, while I will be voting against this bill in large part because of the way it was introduced and how it is being pushed through Parliament, in terms of matters of process and its abuse, I will use my remaining time to outline some of my objections to the substance of the bill. Regrettably, time is limited and I therefore cannot address every flaw of this legislation.

First, Bill C-38 marginalizes low-income seniors by increasing the qualifying age for OAS from 65 to 67. While the government claims this change is necessary, and it did so just now in debate, for the sustainability of OAS, this contradicts Canada's chief actuarial officer and the PBO, who agree that the change is unsound and unnecessary as the current situation and system is sufficiently sustainable.

Second, the government proposes to close the files of federal skilled workers who applied prior to 2008, without any chance on their part to review or appeal this decision. It is not surprising that some have announced plans to take the government to court over this as a matter of fundamental fairness and due process. Indeed, all who apply to Canada should have their applications judged on their merits, not an arbitrary deadline set by the minister and applied in a retroactive fashion.

Third, cuts are being made to various food inspection agencies. These agencies keep Canadians safe and secure while ensuring the food chain is not contaminated. The government has yet to explain how these cuts would not prejudice the health and safety of Canadians or how food safety would be maintained in the absence of complete and adequate funding.

Fourth, the true nature of public service cuts in this bill still remains unknown. The Canadian Centre for Policy Alternatives estimates that in addition to the 19,200 positions being eliminated in budget 2012, there will be a further 6,300 jobs cut as a result of the government's previous strategic reviews that have yet to be implemented, and a further 9,000 cuts as a result of the government's budget operating freeze. That would create a total of 34,500 federal public service job cuts associated with this budget cycle alone. As well, the Parliamentary Budget Officer agrees that the government's figure of 19,200 public service jobs being cut does not represent the full number. He said, “...additional job losses will be required. ...we're actually talking about cuts on top of cuts”.

I raise this in particular to note that we are being asked to rubber-stamp the government's agenda without the necessary information, in a manner that precludes the necessary oversight and review and when it is clear that there are inconsistencies with what the government is saying and what independent experts assert. Parliamentarians must be afforded the facts and figures upon which they are being forced to pronounce, as was the case in Bill C-10. We did not receive it then and we are not receiving it now. This, in effect, amounts to a kind of standing contempt of Parliament.

Fifth, and my colleague from Etobicoke North will speak further to this in a moment, this bill rewrites Canada's laws on environmental assessment and repeals the Kyoto Protocol Implementation Act, weakening our environmental regulations but with consequences far beyond this.

In an email just this morning, a constituent wrote this. Considering that when environmental damage is caused, it has a domino effect on our food and water and thus affects Canadians' health and livelihood, these issues are actually also human rights issues. We have the right to safe clean water, safe accessible food and the myriad of other essential benefits we get from a properly functioning ecosystem.

Sixth, we have the elimination of a series of libraries and archives throughout different departments as part of the latest budget cuts, including the Canadian Council of Archives, which may close as soon as this Friday. This would affect historians, researchers, the media, Parliament and the public who deserve to have information preserved in addition to access to this information.

While I do not have time to elaborate on what this bill includes, I will close with a note about what is not in this bill. This bill does not address that which must be addressed. First and foremost is job creation, not just loss of jobs. Nor does it address the issues that matter most to my constituents in terms of social justice, access to justice and the promotion and protection of fundamental rights and freedoms.

Accordingly, and with this I close, whether it is marginalizing low-income seniors by increasing the qualifying age for OAS or cutting funds to regional development programs that create jobs or not announcing any new funding for affordable housing when the existing program funds are set to expire soon, this budget is simply wrong-headed, misguided, prejudicial and disconnected from the needs of Canadians and from my constituents.

In short, Bill C-38 marks a sad chapter in Canadian parliamentary history.

[World Press Freedom Day, May 3rd, 2012]

Mr. Speaker, I rise today to mark World Press Freedom Day reminding us of the profound importance of freedom of expression, the lifeblood of democracy, consecrated as a core freedom in the Canadian Charter of Rights and Freedoms and international law, while the rise of the Internet and social media have underpinned and propelled the Arab Spring.

Yet we cannot ignore the obverse side, the criminalization of freedom of expression, as in the case of Egyptian blogger Maikel Nabil, or the targeting and murder of journalist Marie Colvin in Syria, or the establishment of an Internet firewall, as in Iran, to quarantine Internet freedom, or that the same Internet that transports the best of free speech also transports the worst of assaultive speech, including even state-sanctioned incitement to genocide, thereby warranting remedy and sanction.

Let us join together in celebrating World Press Freedom Day in the hope that freedom of expression will be protected, that journalists who are imprisoned for exercising it will be released, and that those who attack this freedom will be held accountable.

[Criminal Code, May 1st, 2012]

Mr. Speaker, while the debate this evening is on Bill C-394 and criminal organization recruitment, it reflects and, indeed, invites initial comment on the overall approach to criminal policy by the Conservative government in general.

In this bill, we see the problems of this generic approach to criminal law, namely, that everything is a matter for the criminal law even if there already exists an offence in the Criminal Code on this issue, that the only way to address these criminal matters is through the prism of punishment and that the best approach to punishment is through the use of mandatory minimums.

Frankly, this is a variance with long-standing principle, policy and an evidence-based approach to criminal justice. The government's preoccupation with this type of legislating is not only somewhat disingenuous but also ineffective, wasteful, prejudicial, constitutionally suspect and, simply put, bad public policy.

I realize that colleagues in this place may be somewhat surprised that I am beginning with this type of approach and perspective. However, I believe that as a chamber, given this whole approach to policy-making, that we must take a step back and gain some perspective on what we are doing.

I know the government is very quick to pounce on these types of critiques and to label those who make them, be it the Liberal Party, others or myself, as being soft on crime. We all have a shared commitment to combatting crime. The issue is how we combat it, whether we are smart and effective on crime or whether we are in a situation where we are simply legislating for the sake of legislating and sending a signal as if we are tough on crime when in fact the very subject matter may already be present in the Criminal Code.

If one looks at the legislation, it proposes to punish anyone who ”recruits, solicits, encourages or invites a person to join a criminal organization”. This offence would become the new section 467.11 of the Criminal Code, but, and this is the important point, enhancing the ability of a criminal organization is already a crime under the Criminal Code.

Section 467.11 of the Criminal Code, the very section to which this bill adds a subsection, clearly states:

Every person who, for the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other Act of Parliament, knowingly, by act or omission, participates in or contributes to any activity of the criminal organization is guilty of an indictable offence....

I have no problem with legislation that sometimes seeks to make a necessary clarification to the law or to enhance the law, but what is being suggested here is that somehow without this bill there will be no offence with respect to gang recruitment. Yet recruitment previously was one of the issues on the minds of the legislators themselves in this House, as evidenced by the fact that when enacting section 467.11 in 2001, the then-minister of justice, Anne McLellan, said in this place upon the introduction of what is currently in the Criminal Code, in order to reference that this was already anticipated and then implemented as law:

We know that successful recruitment enhances the threat posed to society by criminal organizations. It allows them to grow and to more effectively achieve their harmful criminal objectives. Those who act as recruiters for criminal organizations contribute to these ends both when they recruit for specific crimes and when they recruit simply to expand the organization's human capital.

Thus, the express provisions of the proposed participation offence make it clear that the crown does not, in making its case, need to link the impugned participation, in this case recruitment, to any particular offence. In fact, these words could have been spoken by the introducer of this particular bill because that particular section in the Criminal Code already covers what this bill purports to do, as reflected in the words of the then justice minister at the time. Indeed, this is the current state of the law.

Section 467.11 of the Criminal Code goes on to note that in the prosecution of an offence under subsection (1) it is not necessary for the prosecutor to prove that, and it goes through a whole series of factors which, for reasons of time, I will not enter into here. If one looks at the offence, one will see that it already covers that which this bill purports to do.

I do not therefore wish to dwell on some of those technical points of law. Suffice it to say that the behaviour the new offence seeks to criminalize is something already criminal under another provision of the Criminal Code. Whatever act that would give rise to this proposed section would also likely be criminal under another section, such as the offences relating to counselling, aiding, abetting, conspiracy and the like.

As such, Bill C-394 is both duplicative and arguably duplicitous as well, duplicative in that it essentially repeats what is already in the Criminal Code and somewhat duplicitous in that it is being presented as if this were our only option with respect to combatting gang recruitment and as if there were no present offence that deals with this issue before us, and that those who will oppose this piece of legislation are again somehow soft on crime or do not care about street gangs and the like.

As I mentioned in my introduction, Conservative crime policy is regrettably all about punishment, yet we should be seeking to prevent young people from joining gangs to begin with. This involves an understanding and appreciation of the serious initiatives that need to be taken with respect to education, social services and the like, in order to allow people to stay in school for as long as they can to provide them with employment opportunities, so that young people are shown that there are alternatives to gang life.

Yet this would involve, and this is the core of my remarks here this evening, addressing the underlying causes and concerns relating to gang crime: housing, poverty, income inequality, employment, minority inclusion and access to education, and an understanding of why young people join gangs.

There are no young people in Canada contemplating gang life because they believe there is no offence against it or their recruitment in the Criminal Code.

There are plenty of offences in the Criminal Code, an ever-expanding list that has grown tremendously with the adoption of Bill C-10, and yet these do very little to address the root causes and concerns of crime. In fact, many of them will only lead to an increase in crime.

Here I am speaking in particular of mandatory minimum penalties, something which Bill C-394 seeks to add to the Criminal Code in the matter of gang recruitment. While I have spoken many times in the House on this point, once again one finds an ignoring or marginalizing of the evidence with respect to the fallout of mandatory minimums.

Simply put, not only do we know that mandatory minimums do not deter crime, rather they tend to increase crime both within prisons, which become schools for crime, and outside prisons. They do not deter crime. This is not my conclusion. This is a conclusion reached by studies the world over and even our own justice department here in Canada.

They remove necessary prosecutorial and judicial discretion, leading to pleas for lesser offences or forcing trials where there may have been none. This clogs the courts. The Canadian Bar Association has warned us that with the addition of more mandatory minimums, we may end up in a situation where more accused are set free contrary to the intention and objectives of the government's legislation to begin with simply because their charter right to a fair trial within a reasonable period of time has been violated.

Moreover, mandatory minimums will lead to further overcrowding in prisons, yet prisons in this country are already overcrowded. We have seen in U.S. court judgments that overcrowding amounts to cruel and unusual punishment.

Lastly, though perhaps most important, such sentences also invite constitutional critiques and have been struck down, as we saw recently in the Ontario courts, for being cruel and unusual, arbitrary, disproportionate, outrageous and intolerable.

While I do not have time to elaborate further, I would like to conclude by simply reminding members that criminal law should be as much about prevention as it should be about punishment. Our approach to social evils should be as much to ensure that individuals and groups have a viable way of avoiding that which leads them into gang recruitment through all the causes and concerns that I addressed earlier in this regard.

[Criminal Code, April 27th, 2012]

Madam Speaker, I too am pleased to rise to speak to Bill C-310, an act to amend the Criminal Code (trafficking in persons), introduced by my colleague, the member for Kildonan—St. Paul. As my colleague from Gatineau has just done, I will take this opportunity to commend the member for her ongoing initiatives and engagement in this regard, of which this bill is but the latest example.

As I have said in the House and as this bill seeks to do, there is an ongoing need to combat this scourge of human trafficking, this pernicious, persistent and pervasive assault on human rights, this commodification in human beings, whereby human beings are regarded simply as cattle to be bonded and bartered. Indeed, this pernicious evil continues to be as persistent and pervasive as ever.

If we look at the situation, we will see that just this week Yuri Fedotov, the head of the United Nations Office on Drugs and Crime, estimated that as many as 2.4 million people are victims of trafficking worldwide at any given moment in time. His comments came as the heads of various UN organizations associated with tourism condemned human trafficking in that sector and proposed a series of reforms.

Of course, it is not in just one agency, be it the UN, or in one sector, be it tourism, where we need to act. The OSCE special representative and coordinator for combatting trafficking in human beings, Marcia Grazia Giammarinaro, recently noted in her address to global parliamentarians that human trafficking is “not a marginal phenomenon, but a new form of slavery on a massive scale in which people lose their freedom of choice, and are reduced to commodities for the benefit of their exploiters”.

In fact, if we look at the situation, the evidence speaks for itself. We know that this grotesque trade in human life generates upwards of $15 billion a year. We know that trafficking is so profitable that it is the world's fastest-growing international crime. We know that the majority of victims being trafficked each year are girls and women under the age of 25 and that many trafficking victims are young people, including children. We know that the victims of trafficking are desperate to secure the necessities of life, and as a result their lives are mired in exploitation and rooted in the greed of those who prey upon them.

We know that UNICEF continues to remind us that 1.2 million children are trafficked globally each year and that the ILO estimates that 2.5 million children are currently in situations of forced labour as a result of being trafficked. We know that no matter for what purpose they are trafficked, every trafficked person suffers deprivation of liberty and physical, sexual and emotional abuse, including threats of violence and actual harm to themselves and to their family members.

Although all of those numbers taken together represent compelling and cumulative evidence of this scourge of human trafficking, we must always remember that behind each of the statistics and behind every number is a face, a life, a world shattered by this evil of human trafficking.

Lest it be thought that there is no Canadian connection to this, the U.S. State Department earlier this year released a chilling report on human trafficking, which found:

Canada is a source, transit, and destination country for men, women, and children subjected to sex trafficking and forced labour. Canadian women and girls, particularly from aboriginal communities, are found in conditions of commercial sexual exploitation across the country. Foreign women and children, primarily from Asia and Eastern Europe, are subjected to sex trafficking....

Indeed, some Canadians have a hand in human trafficking, and it is therefore important, as this legislation seeks to do, to send a message that complicity in the trafficking of persons is not only not acceptable in any way but that we in fact will pursue those traffickers, be they Canadians, here and abroad. This therefore includes extending the reach of our laws to actions that occur beyond our borders.

Last year, Canada prosecuted a child sex tourist, a Canadian who abused girls in Cambodia and Colombia, for violating subsection 7(4.1) of the Criminal Code. Bill C-310 would expand this provision to apply not only to sexual offences against children, as it does now, but to offences related to trafficking in persons.

We should note that just this week the news from Britain reflected the situation where a young woman was trafficked for organ harvesting. So, while our minds may think of human trafficking only for the purposes of sexual exploitation, it exists in other contexts that are no less reprehensible. Indeed, our Criminal Code must stand for the proposition that such trafficking is unacceptable for any person anywhere, for any reason, at any time.

With specific regard to Bill C-310, I will cite World Vision's characterization of it. It reads:

This bill is a significant and necessary step in responding to human trafficking, and a vital part of a broader strategy to tackle trafficking at home and overseas from the key internationally recognized intervention angles: prevention, protection, prosecution, and partnerships.

As I referred to earlier, this was initially introduced legislation and the four Ps for combatting trafficking.

While the bill we are debating this afternoon is an important step in the right direction, there is much more that needs to be done to address all aspects of the trafficking process. In this regard, I would like to note two items among a number of them that the U.S. report of this year found with respect to Canada. I reads:

Canada's law enforcement efforts reportedly suffer from a lack of coordination between the national government and provincial and local authorities, which prosecute most human trafficking cases.

That is something that was noted before but which needs to be continuously addressed.

Simply put, changing the law, while important, will not be enough without adopting a national approach to its enforcement that includes co-operation with provincial and local authorities. I know that the sponsor of this bill has a number of proposals in mind for how we can combat trafficking beyond the legislation before us and has spoken to these other recommendations and needs before. I and other members of this House look forward to working with her on the next steps involved, particularly with respect to coordination between actors at the federal, provincial and local levels.

Referring again to the U.S. report, it was also found that in Canada:

...there were no nationwide protocols for other government officials to proactively identify trafficking victims among vulnerable populations, such as women in prostitution or migrant workers. Victim support services in Canada are generally administered at the provincial level. There were no dedicated facilities or specialized programs for trafficking victims.

That reminds us yet again of the importance of the protection function of the protection of victims, at the same time as we seek to prosecute the perpetrators and always, foremost, the prevention of trafficking to begin with.

Indeed, we must ensure that we are not only looking at human trafficking with a view toward the punishment and prosecution of those involved, but with an ongoing appreciation of the victimization of those who are, have been and continue to be victimized in the process. We must ensure that programs for their protection are fully funded, that they provide services in a variety of languages and they assist toward rehabilitation and reintegration into society for those who have been victims of trafficking.

Trafficking constitutes an assault on our common humanity. Accordingly, it must be seen first and foremost as a human rights problem but with an ongoing human rights face reflected in all of the individual victims and being the very antithesis of what the universal declaration of human rights is all about.

As Professor Harold Koh put it, while dean of Yale Law School:

By their acts, traffickers deny that all persons are born free and equal in dignity and rights; they deny their victims freedom of movement, freedom of association, and the most basic freedom: to have a childhood.

I am delighted to stand in this place and support the legislation.

[Criminal Code, April 24th, 2012]

Mr. Speaker, I rise to speak to Bill C-273, an act to amend the Criminal Code in relation to cyberbullying.

As my colleagues have noted in the debate thus far, Bill C-273 would amend the Criminal Code to broaden the scope of crimes constituting criminal harassment, defamatory libel and false messaging. My colleague, the member for Vancouver Centre, has explained the definitions with respect to each of these crimes. The current law provides, for example, that an individual is libel for false messaging if he or she deliberately spreads false information through the mediums of letter, telegram, telephone, cable, radio and the like. However, there is no provision that prohibits false messaging through the newest and most widely used medium, the Internet.

Before I proceed any further, I want to commend the hard work of my colleague, the member for Vancouver Centre, and her remarkable foresight in bringing this matter to public attention years ago and for her ongoing dedication to rectifying what is certainly a vital issue in our increasingly technologically-oriented Internet society.

With the proliferation of potential uses and abuses of the Internet, the crime of Internet harassment presents challenges for law enforcement personnel, legislators, educators, parents and the like. Indeed, given its immediacy, anonymity and accessibility, the Internet offers a forum, through social networking sites and the like, for harassment and other social ills committed against minors.

Accordingly, Bill C-273 is an important step in the right direction as the current legislation does not adequately protect Canadians and, in particular, young persons from such online abuse.

In 2009, Professors Faye Mishna and Robert MacFadden from the University of Toronto undertook a survey of roughly 2,200 students from 33 schools in the greater Toronto area in order to gauge the effects of cyberbullying. The results were alarming. They determined that over 50% of the students had been bullied online and that the bulk of cyberbullying occurred between students who attended the same school and knew each other in person. More important, the results revealed that individuals who would tend not to bully others face to face would be far more likely to engage in bullying over the Internet.

Professor Qing Li from the University of Calgary found that, as a result of the impersonal nature of the Internet, whereby we do not experience the same feelings of regret or shame that come hand-in-hand with personal interaction, not only are more people likely to engage in cyberbullying, but those who do so feel that they can say whatever they want without any fear of repercussion or sanction. Simply put, the ability to cloak oneself in the shadows of cyberspace removes barriers, decreases the likelihood of punishment and, thus, results in more bullying and more victims.

In a word, the veil of separation, distance and anonymity that the Internet provides has amplified the problem of bullying simply by expanding the arena of threat far wider than the public sphere to which it was once confined. Indeed, children who are victims of cyberbullying can no longer even seek refuge in the comfort of their own homes.

Addressing cyberbullying is an issue of the utmost importance, as has been set forth in the comments this evening. Protecting our youth is one of the most vital responsibilities that not only we as parliamentarians but society as a whole share: protecting, in effect, the most vulnerable among us. When I was minister of justice, the first piece of legislation that I tabled before the House at the time was a bill to protect children and other vulnerable persons. The bill then sought, as we do now, to provide protection for those who are the victims of such hateful and harmful crime.

Unfortunately, it is not always the case that legislation, criminal law in particular, is able to keep pace with the technological developments in our society. As I have said elsewhere, while science races, the law lags and very often the scientists beat the lawyers. The lack of comprehensive legislation in this regard, coupled with the lack of consequences for online bullies, only further enables cyberbullying by incentivizing online abuse as an alternative to physical bullying.

In 2009, Statistics Canada reported that eight out of ten Canadian households owned a computer and had access to the Internet and that the number of Canadian Internet users was increasing.

A recent study by comScore found that Canada continues to lead the world in online engagement, with visitors spending an average of 45 hours per month online.

The statistics about cyberbullying are particularly troubling and I do not wish to repeat many of the numbers we have heard this evening. I want to focus on two high-profile cases that arose from the U.S. and illustrate quite vividly the problem that this legislation seeks to address.

The first is the tragic case of Megan Meier, a 13-year-old Missouri girl who committed suicide as a result of cyberbullying. What is so shocking about Megan's case is that the bullying was not at the hands of one of her peers but was committed by an adult. In that case, the mother of a former friend of Megans set up a fake Myspace page pretending to be a boy, Josh, who had just moved to the area and was home-schooled. Within a few weeks of Megan becoming friends with this Josh and communicating extensively online with him, the tone of his messages dramatically changed, Eventually, Megan hung herself in the closet. While the mother who orchestrated the fake account was acquitted of murder, the case sparked numerous U.S. states and Congress to consider changing their statutes. The bill before us, Bill C-273, does not limit its application to young offenders.

Another high-profile case, mentioned earlier in discussion by the member for Vancouver Centre, was that of Tyler Clementi, an 18-year-old student at Rutgers University in New Jersey, who committed suicide in 2010 by jumping from the George Washington Bridge. Members may recall it at the time. It was later revealed that Clementi's roommate secretly filmed Clementi's sexual encounter with another man and broadcast it on the Internet without anyone's knowledge. Clementi, who had not yet made his sexual orientation public, took his own life in consequence.

We see, through troubling incidents such as these and others that have been described in debate this evening, that cyberbullying is real and can have devastating consequences. Parliament needs to act to adopt this legislation but parents and legislators must also intervene to denounce cyberbullying and discuss appropriate technology use with our children. While this legislation cannot, in and of itself, prevent cyberbullying, it can deter and dissuade people from it, as well as sanction those engaged in it, something that the current law does not provide.

In the time remaining, I will briefly discuss a few particular concerns that might form the basis for some discussion in committee and potential amendment. Some reference has already been made to this regard.

The first is that there is a lack of uniformity in the terms surrounding the problem, be it cyberbullying, cyberharassment or cyberstalking and the like, or any such variation thereupon. The proposal before us uses none of these but it may be useful to define such terms for greater clarity.

Second is something that is difficult to address. There is the question of the jurisdictional limits and the anonymity of the Internet. As we have observed, even with our own House investigation into threats made by the group Anonymous, it can be difficult for law enforcement personnel to identify, locate, arrest and prosecute alleged offenders.

Third is the issue of harm, as some argue that cyberbullying has only emotional consequences, unlike the physical scars that may result from traditional bullying. Certainly both are problematic and must be addressed and redressed but it may be that online activity requires different wording than what is presently in the Criminal Code. I look forward to submissions in that regard as well.

This bill is a necessary addition to our criminal law to address the ever-growing problem of harassment over the Internet by text message and the like. I look forward to its deliberation in committee and its subsequent passage through the House.

This is but the start of a larger dialogue that we need to engage in as a nation with respect to trying to determine the ethical limits of the conduct and misconduct and the related and appropriate use of technology, as we as parents are now forced to tackle issues that were inconceivable when we were children. I am sure I speak for many of my colleagues when I express the hope that the society which we build should seek to be one in which our children are not targets of harassment and abuse either in person or online.

[Citizen's Arrest and Self-defence Act, April 24th, 2012]

Madam Speaker, the question reflects a broader concern that needs to be addressed. We will have to take it up in the other place. However, it reflects the broader concern that sometimes we legislate in response to a particular ad hoc situation. This legislation grew out of a particular ad hoc situation. The legislation is warranted. We have been able to take that ad hoc situation and address legislation which is problematic in the complexity and the cumbersome nature of its provision with respect to property and self-defence.

However, because we had that particular frame in mind when we approached the legislation we did not take up the different possibilities and contingencies in the matters of leaseholders and the like that have just been referred to by my hon. colleague. Those will have to be addressed.

I still believe that the action of private security firms may be one of the more difficult concerns to address. While that was not the phenomenon that gave rise to the legislation, it will very much be addressed in and by this legislation.

[Citizen's Arrest and Self-defence Act, April 24th, 2012]

Madam Speaker, the amendment that was proposed by the Green Party, which did not move forward in the House, should be addressed in the other place. I might add that both the Canadian Bar Association and the Quebec Bar Association supported the proposed amendment. While we did not move forward with it in this House, we should address in the other chamber.

A citizen's arrest is a very serious and potentially dangerous undertaking. Unlike a police officer, a private citizen is neither tasked with the duty to preserve and maintain the public peace, nor properly trained to apprehend suspected criminals. In most cases an arrest consists of either seizing or touching a person's body in an effort to detain them, or the person submitting to the arrest. A citizen's arrest that is made without careful consideration of the risk factors may have serious unintended consequences for those involved. When deciding whether to make a citizen's arrest, a person should be aware of the current law and consider the following: the person's safety, or the safety of others; reporting the information to the police, which is usually the best course of action instead of taking action on one's own; and ensuring that the person has correctly identified the suspect and the suspect's criminal conduct.

These and other considerations need to be properly communicated and understood so they can be properly acted upon. Another consideration that we might look at in the House is an educational campaign to have a full appreciation of the law.

[Citizen's Arrest and Self-defence Act, April 24th, 2012]

Madam Speaker, I welcome the member for Gatineau as justice critic for the New Democratic Party. We have worked together in committee on this bill and on other matters of common concern. I welcome her expertise and experience in this regard.

I am pleased to participate in the debate on Bill C-26 at third reading. While I have often taken issue with the government's approach to criminal justice, I do support the principle behind the bill, which would simplify and update the Criminal Code both with respect to self-defence and defence of property.

As I noted during debate on the bill previously, the current Criminal Code provisions on these matters are complex and judges have noted that the law at present is as confusing as it is confounding.

In particular, the Criminal Code contains four provisions on the issue of self-defence and six defence of property provisions. The legislation we are debating today would simplify these provisions into two Criminal Code sections, one on self-defence and one with respect to defence of property.

I am a long-time supporter of law reform, and during the period that I was minister of justice and attorney general I called for a comprehensive and principled approach to law reform in our country. We need a comprehensive review and simplification of the entire Criminal Code, which is long overdue, and I have stood in this place before to regret the fact that we have yet to embark on such a comprehensive and principled approach to law reform.

Some of the government's actions have taken us away from an approach to principled and comprehensive law reform. I refer, among other things, to doing away with the Law Commission of Canada, which was a principled instrument that assisted the House and me when I was minister of justice and attorney general of Canada with regard to a principled approach to criminal law reform, as well as, regrettably, the elimination of the court challenges program. That program supported access to justice and representation on matters, including those that dealt with principled approaches to criminal law reform. We are missing that instrumentality as well.

Therefore, I hope the bill signals a perspective shift in the government's approach to criminal law, namely that it will support sensible approaches to criminal law reform and to the simplification of the criminal law and move us away from what has been an ill-founded focus not only on punitive and incarcerative approaches to criminal justice, but in a legislative approach that is organized around an ad hoc response to the criminal justice case du jour rather than, as I said, a comprehensive and principled approach to the overall issues of criminal law reform. This would allow us to revisit the notion of the introduction of newer mandatory minimums or enhancing existing mandatory minimums, notwithstanding the fact that the evidence has been clear with respect to the fact that such mandatory minimums do not serve as a deterrent, are ineffective, end up being prejudicial and have a disproportionate prejudicial impact on vulnerable groups in our country, let alone the manner in which they may end up prospectively in breach of rights protected under the Charter of Rights and Freedoms, the 30th anniversary of which we celebrated just last week.

Bill C-26 would be a useful addition to the criminal law in the manner in which I indicated before, and will proceed again to elaborate upon. It would provide greater clarity for prosecutors, judges and juries presented with cases that involve self-defence or defence of property. It would also help private citizens understand the situation in which they may defend their person or property. In this regard, I look forward to the government's plan to educate citizens on this area of the law in an effort to ensure that vigilantism, of which concern has been expressed in debate this morning and heretofore, is not encouraged by the passage of this legislation.

Certainly there might be some who may see this bill as an opportunity to take the law into their own hands. Again, I reiterate that citizens should always seek the assistance of our trained and uniformed emergency services personnel when possible, rather than risk their own personal safety or engage in ill-advised approaches in vigilantism.

One thing that should be made clear to Canadians is that it is not as though without this bill there would be no right of self-defence or the right to make a citizen's arrest. Both exist as a matter of the common law. Self-defence has existed in that regard for centuries. Both have now been codified as statute. Indeed, even if we did not have a statutory basis for these elements of our criminal law, we could nonetheless embark upon the legislative reforms before us today.

As we are now at third reading, I would like to address three particular issues with respect to this bill. The first is that of private security firms, which took up a good deal of necessary discussion and debate before our Standing Committee on Justice and Human Rights. The second is with respect to the bill's use of “gender”. The third is the amendment proposed by my colleague, the member for Saanich—Gulf Islands.

Simply put, with respect to the first issue, that of private security firms, the concern is that these individuals are private citizens who by virtue of their employment often take on police-like functions. Arguably, the bill can serve to enhance their powers and this may not necessarily have positive consequences in that regard.

As the Canadian Bar Association stated in its submission:

We believe that anything which could unnecessarily expand the (perceived) mandate of private security officers and ordinary citizens to make arrests should be avoided.

Indeed, the CBA goes on to express its concern that the legislation might “encourage unjustified arrest by private security personnel, not subject to public oversight”, noting that:

Such personnel often lack the necessary range of equipment or adequate training to safely and lawfully make arrests in a manner proportionate to the circumstances, in the regular course of their duties.

This was a recurring issue during our committee hearing. I do believe the government should be quite mindful of this issue, both in terms of its efforts to educate individuals about the ramifications of this bill but also with respect to the potential introduction of legislation specific to security personnel, such as to ensure proper training and understanding of the law.

I noted earlier in my remarks with respect to the anniversary of the Canadian Charter of Rights and Freedoms that we must ensure that these security personnel are well-versed in the protections inherent in the charter and court pronouncements in relation to such protections, such as to minimize the risk of their violation in respect of persons believed to have engaged in criminal acts.

As a final point in this regard, the concern was raised by two law professors who appeared before the committee that a consequence of the bill would be to make security guards, to use their words, “de facto police officers” by allowing them to delay before making an arrest. This too is a point that I will address more specifically in a moment within this context and the related context in matters of delay.

The second issue I want to address briefly is that of gender, which has been addressed as well in debate this morning, which this bill lists as a factor that can be considered by a judge in assessing the reasonableness of a self-defence action.

At committee it became clear that one of the things this legislation was meant to address was the problem of battered spouses syndrome, a defence linked to the current provisions of the Criminal Code. In this regard, I am pleased that all parties joined in accepting my amendment before committee to create a specific factor “any history of interaction or communication between the parties to the incident”, which, as my colleague for Gatineau pointed out, may also help victims of cyberstalking and cyberbullying.

While I am hopeful this will be enough to ensure that battered spouses are protected, I must reiterate what I said during previous debate about the inclusion of gender in criminal law legislation, namely that it opens the door to the resurgence of a series of myths and stereotypes, which have, regrettably, sometimes undermined our criminal law in areas such as sexual assault. Simply put, I am hopeful that no attorney or judge will advance any arguments that rely on inappropriate or prejudicial gender stereotypes, be it the weak, defenceless woman or the overpowering man, to determine the reasonableness of an action thereby suggesting that a woman should not have fought back or that a man should have fought back harder. Put another way, its continued presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves, and I am not persuaded that gender is the determinative factor as opposed to other factors in the statute such as physical capacity or whether the person was armed.

The final issue I would like to address, and with this I draw to a close in the matter of substantive critique of this legislation, is the issue of allowing for a delay before an arrest is made. This point is indeed problematic, as evidenced by the many proposed NDP amendments at committee and indeed the proposed amendment by the Green Party this morning. I sincerely hope this issue can and will be taken up by the Senate as it is not immediately evident that the current language of the bill that one “make the arrest within a reasonable time after the offence is committed” is sufficient to guard against arbitrary detention or other situations whereby, for example, someone is followed across town by a security guard attempting to effectuate an arrest.

As Professor George Rigakos of Carleton University put it:

Bill C-26 therefore will create de facto private police officers, not in name, but in function, as they will use discretion, investigate, and build a case based on their new-found authority to delay arrest. I'm quite confident that this is not the intent of the committee.

Certainly this would not reflect my own intent and I am hopeful that this will be addressed in the other place. Indeed, the Barreau du Québec's submission on this point was quite instructive. It noted:

...the fact that a citizen's arrest must be made “within a reasonable time” after the commission of the alleged offence leaves the way open for a possible abuse of power. Any arrest includes elements of unforeseeability arising from the use of the force that is needed in order to make an arrest, peaceful though it may be. By definition, an arrest implies the use of force: a person who makes an arrest must physically control the person and restrict their movements and, if necessary, may use reasonable force to compel the person to submit to their authority. When the police make an arrest, they are identified by their uniform or otherwise, and persons arrested by police know that the police are entitled to make arrests, even if they believe the police are in error in their case, and police are required to inform the person arrested of the grounds for the arrest and of their rights. The police are trained to make arrests, and even with their training and skills, arrests sometimes go wrong, even where the persons involved are not criminals. A member of the public does not have the training and resources available to police forces. The power of arrest is an important power that must be exercised in accordance with the law, and the rights of a person who is arrested must be respected.

Again here we see the issue of constitutional rights, potentially and prospectively violated by those making use of this section without being fully aware of the juridical context in which citizen's arrest properly operates. I hope this matter will be addressed in the other place.

Another issue that can be addressed in the other place, and with which the committee had difficulty as well, was how to balance objective and subjective factors in the determination of the reasonableness of a self-defence action. Certainly in the circumstances of a criminal act, one may perceive the situation differently from the clarity that is afforded by hindsight. I am not persuaded that this bill often strikes the right balance in this regard. I appreciate the submissions from numerous groups that raised this concern. I trust that needed refinements can be made in the other House.

While I have not addressed much of the defence of property provisions in this legislation, I do support the principles behind them. We are all aware of the Toronto incident, to which reference has been made during the debate this morning, that gave rise to this bill. Generally, while it is not advisable to legislate on one particular case, and we have sometimes burdened our criminal law by legislating only as a result of one particular case, the overall principles behind this bill are reasonably acceptable and serve the overall aims of prospective law reform.

While I do still have some reservations, as I have outlined in the course of the discussion and my remarks this morning, and while I still hope some modifications may be made in the other place, I look forward to the simplification and reform of what are now overly complex and cumbersome Criminal Code provisions, with respect to both self-defence and defence of property. I hope that this might herald a comprehensive approach to a principled criminal law reform of other cumbersome and complex provisions in our Criminal Code, which we continue to amend on an ad hoc basis in response to a particular cause du jour, but which need a comprehensive and principled approach, not only for the simplification of our criminal law but to making it into a more principled approach that could be better understood by all actors in the criminal justice system.

[Canadian Human Rights Act, April 5th, 2012]

Mr. Speaker, I rise today to speak to Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code on the matter of gender identity and gender expression.

As my colleagues have noted, Bill C-279 would amend the Canadian Human Rights Act to add both gender identity and gender expression as prohibited grounds of discrimination. In addition, the bill would also amend the Criminal Code in the matter of its anti-hate provisions to include gender identity and gender expression in the definition of what constitutes an identifiable group, as well as adding gender identity and gender expression to the Criminal Code's list of aggravating factors that affect sentencing.

Accordingly, Bill C-279 constitutes an important effort to provide human rights protections to a group that remains the victim of significant discrimination in our society. I would be remiss if I did not note the hard work in previous Parliaments of the former member for Burnaby—Douglas and the current member for Vancouver Centre, both of whom have introduced similar versions of this legislation in previous Parliaments, and the member for Esquimalt—Juan de Fuca today for his legislative initiative and eloquent and comprehensive presentation of this issue on matters of fact and law.

The Ontario Human Rights Commission has noted:

There are, arguably, few groups in society today who are as disadvantaged and disenfranchised as the transgendered community. Trans-phobia combined with the hostility of society to the very existence of transgendered people are fundamental human rights issues.

The statistics on trans-phobia, which my colleague from Esquimalt—Juan de Fuca pointed out in his remarks today, speak for themselves. Indeed, 95% of transgendered students feel unsafe at school and 9 out of 10 have been verbally harassed due to their gender expression, according to Egale Canada.

Further, statistics from the United States reveal the significant incidence of de facto discrimination experienced by transgendered individuals. A recent national survey found that transgendered respondents experienced unemployment at twice the rate of the general population and were significantly more likely to be homeless and low-income earners. In particular, and this is shocking, 97% of transgendered respondents in a recent survey reported experiencing harassment or mistreatment at work on the basis of gender identity or expression.

By adopting the amendments that have been proposed in Bill C-279, Parliament can send a strong message of support to transgendered Canadians, affirming their identity and acknowledging their struggles. Indeed, this legislation, again as my colleague from Esquimalt—Juan de Fuca pointed out, ensures that they will enjoy the legal protections accorded to other targeted groups. I enjoyed his quote from Oscar Wilde in this regard.

It is most appropriate that this debate is taking place on the eve of the 30th anniversary of the Canadian Charter of Rights and Freedoms, the centrepiece of our Constitution, that has promoted and protected rights, particularly those of the disadvantaged and discriminated against. I note with regret that, thus far, the 30th anniversary of our charter has gone without notice from the government. It is clear that the charter has had a transformative impact not only on our laws but also on our lives, not only on how we litigate but how we live. In particular, the charter enshrines equality rights such as we see in section 15. It is in this spirit of equality that I join in the support for Bill C-279.

A crucial equality rights issue raised in Bill C-279 is the protection of transgendered individuals against hate speech. Indeed, the promotion of hatred and contempt against an identifiable group results in prejudicial harm to the individual and group targeted by that hate speech. This harm-based rationale, as the Supreme Court characterized the Keegstra, Smith and Andrews and Taylor cases, in which I intervened as counsel on behalf of the intervenant amicus curiae, supports the sanction of hate propaganda as protective of equality. As the court put it, the concerns resulting from racism and hate mongering are not simply the product of its offensiveness, but the very real harm that it causes. Thus, by affording protections to transgendered Canadians under section 319 of our Criminal Code, this House would promote their equality rights under the charter.

Fears that the inclusion of gender identity in Canada's hate speech laws may spark vexatious litigation, thereby creating a chill on free expression, are, simply put, without any foundation.

The Criminal Code has a built-in filtering mechanism that requires the Attorney General's consent to prosecutions for the wilful promotion of hatred under subsection 319(2). Moreover, prosecution for criminal incitement to hate under subsection 319(1) is subject to a high threshold whereby the incitement must be “likely to lead to a breach of the peace”.

Bill C-279's proposed amendment to subparagraph 718.2(a)(i) also constitutes a worthy effort to promote the equality rights of the transgendered. The amendment would mandate judges to consider in sentencing whether a hate crime was carried out on the basis of gender identity or gender expression.

Given what we know about the discrimination that transgendered individuals face, the failure to recognize them in section 718 would send the courts a problematic message that an attack targeting some vulnerable groups, such as ethnic and religious minorities, is more worthy of the court's special consideration in sentencing than an attack targeting other vulnerable groups, namely, transgendered people.

The proposed amendment to the Canadian Human Rights Act is equally worthy of adoption. To quote Justice La Forest of the Supreme Court of Canada, gender equality and gender identity must be included as a protected ground in the Canadian Human Rights Act because “to leave the law as it stands would fail to acknowledge the situation of transgendered individuals and allow the issue to remain invisible.” This is a clear and compelling consideration with respect to the inclusion of this ground.

Some members of the House have argued that Bill C-279 is unnecessary because transgendered people are already protected under the existing categories of sex and disability. With respect, this position is misinformed.

First, gender identity and gender expression do not refer to biological sex or sexual orientation. Rather, the terms refer to an inner feeling of being male, female, both or neither. Second, gender identity and gender expression are not a disability. Rather, they are a sense of self and a source of identity. To confound gender identity and gender expression with sex and disability is to ignore the unique experiences of discrimination and disadvantage that are faced by transgendered Canadians.

Finally, to borrow again the language of Justice La Forest of the Supreme Court of Canada, a failure to explicitly refer to gender identity in the Canadian Human Rights Act leaves transgendered people “invisible”. By amending the Canadian Human Rights Act to include gender identity and gender expression as prohibited grounds, Parliament would enable the Canadian Human Rights Commission to keep statistical account of incidents of discrimination against transgendered individuals. The ability to compile and analyze data on discrimination against transgendered persons would be crucial in confronting the scourge of discrimination that they continue to face in our society and might also guide educational efforts in the broader community.

The Canadian Human Rights Act is more than just an act of Parliament. It is an act of recognition, a statement of our collective values, and a document that sets out a vision of a Canada where all individuals enjoy equality of opportunity and freedom from discrimination.

However, the Canadian Human Rights Act will only achieve this remedial purpose if it grants recognition and protection to the most vulnerable groups in Canadian society. I am proud that in 1996, guided by these principles, the Liberal Party amended the Canadian Human Rights Act to include sexual orientation as a prohibited ground of discrimination. I am delighted that members of the House continue to carry on the fight against discrimination on this, as we mark the 30th anniversary of our Charter of Rights and Freedoms, by seeking to add to the prohibited grounds both gender identity and gender expression and provide remedial protection to this most vulnerable and disadvantaged group.

[National Day of Reflection on the Prevention of Genocide, April 5th, 2012]

Mr. Speaker, Parliament unanimously declared April 7 as the National Day of Reflection on the Prevention of Genocide, where we remember and reflect on the 18th anniversary of the Rwandan genocide that in less than 100 days, beginning on April 7, 1994, one million Rwandans, mostly ethnic Tutsis, were slaughtered, victims of a government-orchestrated campaign of incendiary incitement and unspeakable violence.

However, what makes this genocide so unspeakable is that it was preventable. No one can say that we did not know. We knew, but we did not act. As the Security Council and the international community dithered and delayed, Rwandans were murdered.

Indeed, the great tragedy is not so much how many Rwandans were murdered, but how so few intervened to save them.

And so, we promise: never again will we be indifferent to racism and hate; never again will we be silent in the face of evil; never again will we indulge mass atrocities. But we will speak and we will act to combat impunity, to promote international justice and to ensure that Canada does not become base and sanctuary for these great perpetrators of genocide. Never again.

We remember.