Irwin Cotler

[Irving Layton, March 14th, 2012]

Mr. Speaker, I rise to pay tribute and celebrate the centenary of Irving Layton, a great teacher, poet, literati, wordsmith and architect of language; indeed, a poetic genius with an abiding jeremiad against injustice. He internalized in his psyche, as well as in his poetry, the romanticism of Shelley, the pantheism of Wordsworth, the dialectics of Hegel and the questioning of Socrates, being also the voice of the voiceless.

Irving Layton was my teacher, mentor and inspiration, who also became my close colleague and friend. He taught me how to think, how to advocate, how to struggle against injustice and, in Leonard Cohen's words, how to live.

May this centenary serve as an occasion for our youth to discover this poetic genius, as well as to inspire us all in the struggle against injustice.

[Town of Mount Royal, March 12th, 2012]

Mr. Speaker, I am honoured to rise today to commemorate the centenary of the Town of Mount Royal.

First conceived as a model city initiative of the Canadian Northern Railway, it is now home to a diverse and dynamic community, rich in history, culture, tradition and sports.

Indeed, this model city was designated a Canadian national historic site in 2008 because it is a “remarkable synthesis of urban renewal movements of the early 20th century.”

Today, the Town of Mount Royal is a veritable green oasis, with 20,000 trees for 20,000 residents and an exceptional quality of life. A series of celebratory events is planned through the hard work and dedication of the Centennial Celebration Society.

On this memorable occasion, I would like to commend the mayor, Philippe Roy, the municipal counsellors, volunteers and residents of Mount Royal.

Here is to the next 100 years.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, I thank my colleague for the question.

There is a particular problem with aboriginal people, especially aboriginal youth. At present, there is an overrepresentation of aboriginals, and especially aboriginal youth, in our prisons. Constitutionality may also be at issue here. In fact, the Supreme Court declared that it would not be possible to apply the principles of the Gladue ruling.

There is another very serious problem, especially with regard to the aboriginal issue. With Bill C-10, the rights of aboriginals would be violated.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, I want to thank the hon. member for the question. As I said at the beginning of this debate, if the government had introduced nine bills instead of just one, we could have studied each one properly. We could have not only studied each bill better, but also focused on the constitutionality of their provisions, which, in my opinion, are unconstitutional. We could have fulfilled our responsibilities as members of Parliament by studying these nine bills separately instead of what we ended up doing.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, in the ordinary conduct of business, the Minister of Justice would have had to refer this matter to the constitutional experts within the Department of Justice. He would have asked them whether the suspect provisions that I have mentioned, or any others, comport with the Charter of Rights and Freedoms. I have full respect for those officials in the Department of Justice. I have my doubts as to whether that question was even put to the officials. If it had been put to them, he would have received the response that those provisions were invalid.

I would ask the minister to refer those matters to his officials and at least suspend the application of Bill C-10 with respect to those provisions that are constitutionally suspect until that advice can be tabled before this Parliament.

If the bill goes ahead, we are going to see a series of constitutional challenges with respect to those constitutionally suspect provisions. This could have been avoided if the Minister of Justice had exercised due diligence. We are going to see additional constitutional challenges at an additional cost to the taxpayer, all undermining the integrity of our process.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, I had the privilege to serve as minister of justice and attorney general of this country. One of my primary responsibilities was to ensure, before I tabled legislation, that such legislation comported with the Canadian Charter of Rights and Freedoms.

As I pointed out in my remarks, there are some six principal constitutionally suspect areas in this legislation. It behooves us, within the responsibility of due diligence that the Minister of Justice has, that he table in the House the advice he received that such legislation is constitutional. I cannot imagine that he would have received advice that these provisions are constitutional. I want to know that they were even discussed to begin with, namely, that due diligence was exercised to ensure compliance with the Charter of Rights and Freedoms. I have my doubts about that.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, the issue of costing would impact not only on the provinces which, in the case of the Province of Quebec, have rejected the principles of this legislation such as in the matter of the youth criminal justice legislation. The provinces would be assuming costs of legislation that they did not agree to. They would not even know what the costs would be because the government has yet to disclose these costs. We know, with respect to the matter of conditional sentencing, there would be an additional $137 million imposed on the provinces with respect to this one piece of legislation alone. It would not only impose a burden on the provinces, it would impose a burden, as I discussed yesterday with the Canadian Association of Police Boards, on the municipalities which have not even been involved in this discussion and debate.

And it would impose a particular burden on us as parliamentarians. We have a constitutional responsibility to be the guardians of the public purse. We cannot be the guardians of the public purse, trustees of the public, if we do not even know what the cost of this legislation would be. Therefore, we cannot exercise our responsibility for constitutional oversight.

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, I will continue where I left off.

As a result of changes in conditional sentencing, the federal government will bear additional costs of about $8 million, and the provincial and territorial governments additional costs totalling about $137 million. Yet the government indicated that there would be no cost to either the federal government or the provincial and territorial governments with respect to this element of the legislation.

Indeed, instead of appreciating the evidence, the government sought to discredit both the Parliamentary Budget Officer and his report, saying it relied on “wild assumptions”. However, the PBO report is peer reviewed, and it notes that its figures “are likely under-estimates. [And] they also include no additional capital costs related to the building of new prisons”. We know that we will need to build more prisons to deal with the fallout of this legislation.

Fifth, and relatedly, there has been insufficient consultation with the provinces and territories and, indeed, the municipalities, where these costs will be imposed at the expense of the delivery of government services. This is particularly true in the case of Quebec, whose youth justice model, a preventive, rehabilitative and protective one, is being replaced by a punitive, incarcerative, and ineffective one.

Moreover, the government pre-emptively dismissed the Quebec model, which had brought about the lowest recidivism rate in Canada, and, equally, dismissed attempts by the Quebec Justice Minister, Jean-Marc Fournier, to mitigate the damage through a series of proposed amendments, while not providing any evidence supporting its legislative scheme.

I am proud to rise here today as a member from the province of Quebec, which has one of the best youth criminal justice systems in the world, a system that many other jurisdictions look to as a model to emulate.

It is inconceivable that the government is trying to deny our program's significant results, while saying that Quebeckers were consulted and support this bill. I say “inconceivable” because surveys clearly show that Quebeckers do not support Bill C-10. I say “inconceivable” because the Quebec justice minister, Jean-Marc Fournier, came to Ottawa several times to explain why he thought this bill was unacceptable, which is the general consensus among most Quebeckers.

It is inconceivable that this government continues to claim that it has the support of the provinces on this issue, when it is patently obvious that Quebec never agreed with Bill C-10, does not agree with it now, and will never agree with it. The Government of Quebec has made it clear that the province will not pay the costs associated with this bill. Other provinces have taken the same position.

What is needed at this point is a federal, provincial, territorial, municipal dialogue in order to address the question of cost and respective burdens as discussed yesterday in my meeting with the representative of the Canadian Association of Police Boards.

Sixth, even in its approach to deterring crime, something all parties want to address, the legislation introduced new mandatory minimums and enhanced existing mandatory minimums. However, Canadian studies and evidence from other jurisdictions show that these penalties do not deter crime. They increase the chance that the offender will reoffend. They are unfair, inconsistent and grossly disproportionate. They invite further constitutional challenges. They have a differential and discriminatory impact on vulnerable groups already suffering from poverty, deprivation and disadvantage, such as our aboriginal peoples. We are witnessing a disproportionate representation of aboriginal people in our prisons, particularly younger aboriginal people. Further, 34% of our aboriginal women are already in prison.

Let me reiterate, this is not a personal conclusion. It is one that is anchored in studies the world over, from the United States, South Africa, from whence I have just come and which discussed and critiqued mandatory minimum sentences, New Zealand and the like. That conclusion is also found in volumes of social science research and evidence.

Perhaps the strongest evidence against mandatory minimums comes from the United States. Legal experts have increasingly critiqued their use. Indeed, just this past month a coalition of American law enforcement officials, judges and prosecutors called upon the Senate of Canada to reconsider the mandatory minimum sentences in Bill C-10 concluding:

We cannot understand why Canada's federal government and some provincial governments would embark down this road.

Indeed, the Ontario court ruling in the Smickle case several weeks ago is proof of this point. The judge struck down a mandatory minimum in that case, saying that its imposition would be “fundamentally unfair, outrageous, abhorrent and intolerable”.

For a government that touts itself as being so concerned with cost cutting, it is surprising that it would embark on a criminal justice plan that would have it defending multiple charter claims at great expense to the Canadian taxpayers without enhancing the integrity of our system and without serving as a deterrent or being fair in its application. Indeed, it is surprising that the government would insist on continuing debate on Bill C-10 without hearing everything the courts have to say on this matter.

Simply put, these laws have helped to fill prisons without increasing public safety. They are seriously constitutionally suspect. It would be highly inadvisable for us to enact legislation with such constitutionally suspect provisions.

Seventh, there has been the abuse of process and abuse of Parliament, as reflected in the raison d'être for this debate and the time allocation. Simply put, the government rejected all amendments proposed by the opposition, including some 40 amendments I introduced in committee and the House, anchored in my own experience as a former minister of justice and professor of law.

I do not say this to be self-serving. These included amendments which I introduced based on expert witness testimony to improve the legislation, to eliminate prospective breaches of the Charter of Rights, to check abuses of executive power, to protect the rights of victims, to provide for treatment rather than incarceration for mentally ill offenders, to address the damage of mandatory minimum sentences, to address prison overcrowding, to protect privacy and to provide for consistency between the English and French versions of the bill.

The government could have at least allowed for debate on these proposals rather than rejecting them out of hand. I do hope that the day will come that, for the sake of the protection of the victims and for the safety of our citizens, some of the more egregious portions of this bill will be amended properly by subsequent Parliaments, while others will be rightfully struck down by the courts.

Eighth, the government did not allow for any discussion of the privacy concerns in the legislation reflected in the letter of the Privacy Commissioner to the head of the justice and human rights committee. Accordingly, there are numerous privacy concerns that remain unaddressed and un-redressed by this legislation. Certainly this is nothing new for a government that has such little regard for Canadians' privacy as one can see in its other legislative proposals, such as Bill C-30.

Ninth, in the government's rush to adopt the legislation and unwillingness to listen to opposition amendments, internal inconsistencies in translation between the English and French versions of the legislation still remain. It is regrettable that we are adding errors into the Criminal Code simply because the government viewed time allocation and haste in adoption as being more important than ensuring the quality of our laws and the integrity of our processes.

Tenth, the manner in which debate was shut down in Parliament, in the legislative committee, in report stage, again this week, as well as the manner in which amendments were summarily rejected and those offering them were accused with the arrogant and offensive rejoinder that the opposition supports criminals and not victims, was all a standing abuse of Parliament and the democratic process. We were required to inhibit discussion with our constituents, something which prejudiced members of Parliament from all parties. The Minister of Justice has said that this bill and the nine bills contained within it were before us in a previous Parliament. The justice for victims of terrorism act was never before this House. Further, there are many members of this House who were not MPs in previous Parliaments. Why should they not have had the right to discuss this legislation? Why should their input not have been solicited? Why should they not have been able to consult their constituents?

Some of these bills were never debated in this House. The justice for victims of terrorism legislation was never even tabled in this place. Given the compelling nature of this bill, once tabled, it deserved more debate so that the important precedential resonance of this legislation could have been appreciated.

Eleventh, this omnibus bill is about principles and priorities. Indeed, it is about values. Simply put, if we spend billions of dollars on building unnecessary prisons while crime is receding and on incarcerating more people for longer periods of time, then that money cannot be used to invest in a social justice agenda of childcare, health care, crime prevention, seniors or social housing.

It is clear that as a result of this omnibus bill we will have more crime, less justice, skyrocketing costs, fewer rehabilitation programs for offenders, less protection voiced for victims and less protection for society. I have said this before, and it particularly resonates today. Adopting this legislation, apart from the justice for victims terrorism act, would mark a sad day for Canadian criminal justice, a betrayal of the very mandate for safe streets and safe communities that all of us in this House share.

[Foreign Affairs, March 9th, 2012]

Mr. Speaker, we know that the Iranian revolutionary guard corps is at the epicentre of the Iranian nuclear weaponization program, its state sponsorship of international terrorism and its massive domestic repression.

The United States and others have sanctioned it as a terrorist entity, but the Canadian government regrettably continues to dither and delay.

Will the government finally list the IRGC as a mega-threat and terrorist entity under Canadian law and thereby sanction it effectively in the protection of international peace and security?

[Safe Streets and Communities Act, March 9th, 2012]

Mr. Speaker, I propose to begin my remarks with my respective conclusion, which also frames the narrative of my intervention, and that is if, at the conclusion of this debate, we adopt Bill C-10, we will be adopting legislation that lacks an evidentiary basis in its pertinent particulars, that is constitutionally suspect, thereby violating our obligations and inviting further charter challenges while the costs remain unknown, thereby breaching our responsibilities for the oversight of the public purse while also burdening the provinces. If we adopt Bill C-10, we will increase prison overcrowding, also giving rise to charter concerns, while, again, not improving the safety of Canadians in any way.

Indeed, adopting the legislation would be a betrayal of the very mandate common to all parties in the House to which all we aspire, namely, ensuring safe streets and safe communities. We will end up, as I said when the bill was first introduced and must reaffirm again, with more crime, less justice, spiralling yet undisclosed costs, less rehabilitation for the offender, less protection for the victims and less safety for our citizens.

I have risen in the House on the bill before when time allocation permitted. I rose also in committee seeking to propose amendments at committee, again when time allocation permitted.

As has been pointed out, even today's debate would not have been necessary had the government simply read my amendments to the justice for victims of terrorism act when I first proposed them.

Simply put, it is as arrogant as it shocking that the government rejected opposition proposals out of pure partisanship rather than considering them on the merits. These Senate amendments, which the government rejected at committee only to attempt their reintroduction at report stage in the House, are themselves proof that the proposals were well-founded.

Let me be clear. I am pleased that the government changed its mind on the need for these amendments. However, government comments suggesting that the amendments when first proposed were imperfect and defeated for that reason, flies in the face of the evidence.

As I indicated in committee, I proposed these amendments to improve the justice for victims of terrorism act, a bill that I not only supported but felt was precedential and necessary to provide victims of terror the civil remedies in domestic courts against their terrorist perpetrators and against such terrorist perpetrators who have previously been shielded, and I would have accepted friendly subamendments at committee.

Yet the government had no such changes to offer. Indeed, the government did not say, “We agree with your amendments, but we want to change their form”. Rather the mocking response was, “Why are you wasting our time when we want to get this bill passed?”, adding, again, in a mocking tone, that only the government cared about victims and the opposition only cared about criminals, a mocking tone that has been repeatedly used in this debate, the whole underpinned by fear-mongering in complete disregard for the evidence and the truth.

Time does not permit for me to detail and document every defect of the legislation. Accordingly I propose to organize the balance of my remarks around the principal defects of the bill, which I remind the House were nine bills put together into one omnibus piece of legislation, and that is the first issue, which is the bundling of nine major pieces of legislation into one omnibus bill and imposing closure in both the House and in committee deliberations as if we were debating only one simple bill. This did not allow for the necessary and differentiated parliamentary discussion and debate, let alone the necessary oversight of the legislation, as required by Parliament in discussion and debate.

That is, in part, the reason we are having this debate today. The government insisted this whole thing had been debated before in a previous Parliament. Yet the government cannot point to a single page of Hansard wherein we discussed the bill that we are amending, the justice for victims of terrorism act. It simply was never considered in the House. Moreover, each separate bill needed individual consideration. Each amendment needed careful review. The government refused to do this and this was reason enough to reject this ill-considered legislation with its pre-emptive preclusion of any review of the legislation.

Second, even before the legislation was tabled, there was a serious problem of prison overcrowding, with some provinces already reporting prisons at 200% capacity. We know that overcrowding leads to more crime within prisons and outside prisons.

The U.S. supreme court has found that overcrowding of over 137% can constitute cruel and unusual punishment. Accordingly this legislation will only exacerbate the problem in Canada, both as a matter of policy and as a matter of the Constitution.

At a time when crime is falling, when the evidence does not warrant it, why are we going down a path that seeks to put more people in prison for longer periods of time and risking a situation where the courts will be forced to set people free because of such overcrowding? It simply does not make constitutional or policy sense. Moreover, in the legislation itself, the requirement that correction administrators use “the least restrictive measures”, again a matter of sound constitutional protection and policy-making, has been removed, generating yet another constitutional concern relative to incarceration.

Third, the Minister of Justice has an obligation to ensure that legislation comports to the Canadian Charter of Rights and Freedoms, yet prison overcrowding and the attending risk of cruel and unusual punishment are not the only constitutional concerns in Bill C-10. The expert witness testimony identified a series of constitutionally suspect provisions, including: severe, excessive, disproportionate and prejudicial mandatory minimum sentences; vague and over-broad offences; undue and arbitrary exercise of executive discretion; unconstitutional pretrial detention issues invoking section 11 concerns; and intrusive privacy concerns, such as those enunciated by the Privacy Commissioner of Canada.

When I asked whether the minister would provide assurances that the legislation comported with the charter, a due diligence responsibility on the part of the minister, the minister repeated the mantra about the mandate and avoided a response to the question.

I will address mandatory minimum sentences more specifically later, but I must note that it is highly undesirable for us to be adopting legislation that puts in place a sentencing scheme which the courts themselves have recently found untenable. Should we not be prudent and wait for the courts to pronounce on matters before it prior to Parliament enacting legislation that presents an affront to our Constitution? This is but one example of constitutionally suspect legislation within Bill C-10.

As I said before, but it is worth repeating, we must consider legislation on its merits. We cannot enact unconstitutional legislation and then say, repeating the mantra, that these measures are necessary to protect safe streets and safe communities. We simply cannot justify bad or unconstitutional policies through the repetition of the mantra about a mandate.

Fourth, we must also raise the important issue of the cost of this legislation. The costs associated with these nine bills have not been disclosed, and when one of these bills was introduced during a previous Parliament, the office of the Parliamentary Budget Officer determined that that bill alone would cost approximately $5 billion.

Canadians and Parliament are entitled to full disclosure and accountability. This lack of disclosure represents not only a denial of the public's right to know but also a breach of parliamentarians' constitutional responsibility to monitor government spending and taxpayers' money.

Since we last discussed this bill, another report from the Parliamentary Budget Officer was released. In the matter of constitutional sentencing alone, the report found that the federal government would bear additional costs of about $8 million and the provincial and territorial governments would bear additional costs totalling about $137 million.