Irwin Cotler

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, we worked together when we were allowed to do so. Most of the time the Conservatives rejected all of the amendments proposed by the opposition, whether they were from the NDP or the Liberals. The Conservatives even rejected amendments regarding the victims of terrorist acts. It is shocking to see that the Minister of Public Safety is now prepared to present these amendments in the Senate, when he had the opportunity to agree to them when we proposed them in committee. I must say that this is a disgusting policy.

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, I was referring with respect to the principle of consultation with the provinces and territories.

One can always cherry-pick and single out a particular attorney general. What was Jean-Marc Fournier, the Quebec minister of justice, basically doing? He was trying to propose amendments to improve the legislation. He was not seeking to reject it. He was trying to improve it. In fact, the Quebec model is one that is internationally respected and replicated by other provinces. He was putting forth a model, which has, in fact, been adopted, and saying, “Don't, at this point, jettison this model”.

The Quebec model is a prevention model, a model with respect to rehabilitation of the offender, a model with respect to the protection of the victim, and that is being replaced by the three Ds model. The three Ds being denunciation, which ends up being the denunciation of the victim through the lack of publication bans and the like, to deterrence, which will not exist because we have less recidivism in Quebec than in any other province, and with respect to the overall concern of this legislation, the third D, which is detention, when we could have had prevention and they would not have had to be in prison to begin with.

[Safe Streets and Communities Act, December 2nd, 2011]

Mr. Speaker, as soon as Bill C-10 was introduced, and throughout the shortened debate on this legislation, the government tried to justify its safe streets and communities act as if the title alone of this legislation proved its relevance. Whenever we raise issues or criticize the bill, the government keeps repeating, as a sort of mantra, like it did this morning, that it has the mandate to pass this legislation.

All governments and all parties have a mandate and a duty to ensure that streets and communities are safe. The real issue that needs to be debated is the merits of the approach chosen by the government. Indeed, one can raise the constitutionality of the bill. For instance, we cannot enact legislation that is unconstitutional and say that these measures are necessary to ensure that our streets and communities are safe. We cannot justify bad policy by repeating a mantra about a mandate. The legislation must be reviewed based on its merits and constitutionality.

Unfortunately, the omnibus bill on crime proposed by the Conservatives will lead to more crime, weaker justice, increased costs, fewer rehabilitation opportunities for offenders, and lesser protection for victims who, and I regret it, will have a harder time being heard.

I want to deal briefly with some of the main flaws in this bill.

Indeed, when I speak of defects in Bill C-10, I have to mention yet again that we are not talking about one particular bill. We are talking about nine principal bills, each of which deserves, but did not receive, its own differentiated appreciation. A best case study is that which the parliamentary secretary began with this morning in repeating yet another mantra not only that the government has a mandate to put forward this legislation, but that this legislation is organized around the protection of victims, and we of course concur about the importance of that, although the Conservatives continue to speak as if they alone seek to protect victims.

There is one ironic case study to which reference has been made, but perhaps has not been fully appreciated. It is with respect to the first piece that the parliamentary secretary brought up this morning, justice for victims of terror. I proposed at the legislative committee a series of amendments to this piece of legislation. May I add parenthetically that I support the legislation in principle; in fact, I tabled my own private member's bill several years ago on this matter. When I proposed amendments that were intended to protect the victims of terror, the very thing the government says this legislation was organized around, those amendments were summarily rejected. Discussion was not even allowed on them. They were summarily rejected.

The government did not take the time initially and moved quickly to report stage, but at report stage the Conservatives suddenly had an appreciation of the amendments. They saw the light and tabled at report stage the very same amendments that they had rejected at committee stage. The Speaker, understandably, rejected them for that reason.

The parliamentary secretary stood today and said that this is historic legislation, and I agree. I referred to it as such at committee when I tabled those amendments. It is historic because we are protecting victims. However, we do not yet have any initiative by the government to implement those very amendments that we now agree upon: the ones that I tabled and which were summarily rejected; the ones the government then sought belatedly to table but were understandably rejected for procedural reasons. We do not yet have the measure and means by which the victims and in particular the victims of terror, can look forward to having those amendments enacted into law as part of the bill.

I will now summarize seriatim and as quickly as possible the main defects in the bill. I sought just by that case study to show how we did not have time for the sufficient appreciation that each of these pieces of legislation warranted in the name of the protection of the victims, in the name of the objective that the government purports to seek by this legislation, namely, safe streets and safe communities. I remind members that the title alone cannot validate the legislation. The fact that the government says it had a mandate from the people, which it did not specifically have for this legislation, cannot validate legislation which may be unconstitutional or which may be bad policy and the like. Let me summarize these lacuna.

First, even before this legislation was tabled, there was a serious problem of prison overcrowding with some provinces already reporting prisons at 200% capacity. We know that overcrowding at over 137.5% leads to more crime within prisons and more crime outside prisons. In fact, the U.S. Supreme Court has found that the overcrowding at 135% can even constitute cruel and unusual punishment.

Regrettably, this legislation in its ill-considered fashion will only exacerbate the problem in Canada, both as a matter of policy and as a matter of the Constitution.

I would add that, with respect to corrections policy, the legislation dropped the term and the threshold principle that with respect to prison management and corrections we are to use “the least restrictive measures”. This constitutional principle was excised from the legislation to imbue a form of arbitrary discretion in the exercise of an authority that previously had a constitutional principle for its threshold exercise.

My second concern is a particularly important one.

I mentioned that prison overcrowding has an attendant concern respecting cruel and unusual punishment. In other words, it raises a constitutional concern. However, it is not the only constitutional concern raised by this legislation, if one looks at the expert testimony that we had before us and does not dismiss it summarily as the amendments were equally dismissed summarily. Speaking as a former minister of justice and attorney general of Canada, a minister of justice of whatever party has a constitutional responsibility to ensure that any legislation that is tabled comports with the Canadian Charter of Rights and Freedoms.

When we look at this legislation we see a series of constitutional concerns. We have the problem of excessive, severe, injurious, disproportionate and prejudicial mandatory minimums. We have the problem of vague and over-broadly worded offences. We have the problem of undue and arbitrary exercise of discretion. We have the problem with section 11 concerns and pretrial detention and the like.

When I asked the Minister of Justice about these concerns in debate in the House, and when I asked him to table the legislation by way of the advice in order to demonstrate how it had gone through a constitutional filter, his answer was to refer to the fact that the government tabled legislation to protect against the molestation of children and to protect against organized crime. Surely, we all agree about those specific objectives.

My point was whether the specific constitutional concerns that I reiterated in the question had been addressed. I asked the minister to address those. His response was, “We have been given a mandate by the Canadian people to proceed in this direction, and that is exactly what we are going to do”. By way of response, I say that mandate does not authorize the tabling of legislation that has unconstitutional provisions, but it mandates the Minister of Justice to ensure that legislation that is tabled will comport with the Canadian Charter of Rights and Freedoms.

When I asked the minister to table the constitutional opinions that the government received in that regard to demonstrate to us that the government had put it through that constitutional filter in order to determine that Bill C-10 comported with and adhered to the Canadian Charter of Rights and Freedoms, I did not get, and still have not received, any response in that regard.

This leads me to a third concern that I wish to raise. It is with regard to the question of costs.

Not only have the costs of the nine bills not been adequately assessed and disclosed, but the Parliamentary Budget Officer has yet to receive, at his request, the specific costing. Members will recall that in the previous Parliament one of the bills which was adopted was costed at $5 billion over five years. Recently, with respect to the issue of corrections, it was determined that the budget with respect to corrections just at the federal level is half a billion dollars more than what was assumed just for the last year alone.

However, it goes beyond the mere question of undisclosed costs. This raises yet another constitutional and policy concern because we, as members of Parliament, have a constitutional responsibility for the oversight of legislation. In particular, we have a responsibility for the oversight of the spending power and the public purse. How can we exercise that responsibility when these costs are not disclosed to us as they must be?

I might add, in case we have forgotten, that the last election was triggered by a contempt of Parliament vote in this chamber. The contempt of Parliament was organized around the fact that the government had not then disclosed the costs with respect to criminal law legislation. Now that the Conservatives have a majority, they consider that they do not have to disclose the costs and can do so with impunity.

Therefore, this first import is not only a constitutional issue in terms of us having our responsibility to have a constitutional oversight addressed, it also raises a question of ongoing contempt for Parliament as an institution in not disclosing the costs.

That leads me to a fourth concern and one that we have seen throughout the evidence that has been disclosed. There has been insufficient consultation with the provinces and territories that will be assuming these costs at the expense of other government services that they need to dispense and would help ensure also that the focus would have been on crime prevention and not just on punishment. That is what the Quebec minister of justice, Jean-Marc Fournier, attempted again and again to convey to the Minister of Justice. He wrote a letter on September 30 to the minister in which he states:

... that, despite much correspondence and one meeting, the concerns I raised with you have not been addressed in Bill C-10.

That was written on September 30. We know that this pattern of inattention and absence of consultation, particularly with respect to the concerns as publicly and continuously expressed by the Quebec minister of justice, were simply not responded to.

When I tabled amendments to the Youth Criminal Justice Act, I tabled those amendments both as a Quebecker, as someone supporting the work of the Quebec minister of justice, Jean-Marc Fournier, and as somebody who, as minister of justice, worked with Quebec and other provinces on the Youth Criminal Justice Act. However, all those amendments, again, were summarily dismissed.

This brings me to the fifth concern, which is the bundling of bills together in one omnibus piece of legislation. This in itself showed a kind of contempt for the necessary deliberations of Parliament, which were augmented by time allocation in the chamber on the tabling of the bill, time allocation at the committee stage where all amendments were summarily rejected, and then time allocation at the report stage in the abbreviated debate that we have had here.

This brings me to a sixth concern that I have. Even in its approach to deterring crime, the government complicates the issues on both a constitutional and policy level in the matter of protecting victims and the rehabilitation of offenders with its approach to mandatory minimums.

In the course of the government's omnibus bill, it introduced both new mandatory minimums and enhanced existing ones even though Canadian studies, evidence from Department of Justice reports themselves, and evidence from international studies from South Africa, Australia, New Zealand, the United Kingdom and, most recently, from the United States in the comprehensive report of the United States sentencing commission, which was released just a month ago, show that these penalties do not deter crime but have an excessive, injurious and prejudicial impact on the criminal justice system, as well as a differential discriminatory impact on vulnerable groups, in particular, aboriginal peoples where, for example, of the women in prison, 34% of them are aboriginal.

The seventh concern is on the whole question of privacy. The Privacy Commissioner, Jennifer Stoddart, sent a letter to our committee to address the issue of privacy concerns. She did not say that she was opposed to Bill C-10. She simply said that there were privacy concerns that needed to be addressed and she outlined, in six detailed pages, what those privacy concerns were. We were never even able to address them. I raised them in debate, which the committee summarily dismissed.

With respect to evidence, as Jean-Marc Fornier put it, the subjectivity of the government but not actual objective evidence based consideration, as I showed with respect to mandatory minimum issues, was true with regard to other matters.

With regard to mental health, this is a particularly important concern. We had witness testimony from Mr. Trudell and others who came and pleaded for the bill to address the issue and concerns respecting mental illness. We had a debate in this House and adopted a national suicide prevention strategy because we knew that some 90% of the people who commit suicide, tragically, have problems with mental illness.

We also know that offenders have problems with mental illness. However, when we asked for an exemption with respect to those with mental illnesses that could be treated, which would be better for the offender, better for the criminal justice system, better protection for victims and so on, they were not even addressed in the committee because they were summarily dismissed.

I just want to add that the whole concern with regard to mental health does not appear at all in the bill. That is a scandal, given all the witness testimony that we heard on this. That is a scandal, given the witness testimony we heard from victims that the government itself spoke about.

In closing, I will just mention that even a recommendation with regard to a national crime--

[Human Rights, December 2nd, 2011]

Mr. Speaker, this week I participated as a Canadian member of the parliamentary delegation in the annual parliamentary hearing at the United Nations.

In the session on political accountability, including that of the United Nations itself, I called upon the UN Security Council to invoke its responsibility to protect doctrine to protect against murder, brutality and torture, including the torture of children and hospital patients, forced disappearances and the like in Syria. I called on it to heed the calls of the Arab League for the protection of Syrian civilians, which the Syrian government responded to with more murder and which has since been sanctioned by the Arab League.

In the second session on youth participation, particularly in the Arab Spring, I called upon the United Nations to help secure the immediate release of a young Egyptian blogger, Maikel Nabil, one of the early voices of the Egyptian Arab Spring, who then became the first political prisoner in the post-Mubarak era. Today as we meet, he languishes in prison on the 102nd day of a hunger strike for seeking to do that which the Arab Spring was hoping for. He has emerged as a symbol of the hope yet betrayal of the Arab Spring.

[Justice, December 1st, 2011]

Mr. Speaker, during committee deliberations on Bill C-10, I introduced a series of amendments to the important justice for victims of terrorism act, but these amendments were regrettably rejected by the Conservative majority on committee. The government then tabled the same amendments at report stage in the House, which the Speaker rightfully ruled out of order.

Now that we agree that these amendments are warranted and that they should never have been rejected in the first place, what will the government now do to see that these desirable amendments are in fact implemented?

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Madam Speaker, the hon. member has been very attentive and present at the deliberations of the Standing Committee on Justice and Legal Affairs, and knows of what she speaks.

I hope that when our committee deliberations return, we will do so in a way that permits for the informed and considered appreciation of legislation before us. I still believe the real problem with regard to the deliberations on Bill C-10 was that it was not, as some feel when they look at it, one bill; it was nine bills. They should have been unbundled. We should have addressed each of them separately.

My colleague mentioned the justice for victims of terror bill. I proposed four amendments, which were rejected by the committee. The government then reintroduced those same four amendments that it had rejected in committee. The Speaker, understandably, ruled them out of order. Maybe if we had time and consideration to put on that one bill alone, we could have come up with a better bill. The bill, as I have said, is transformative legislation that would have had a positive historical impact to give victims of terror a civil remedy that they had not yet had. It would have allowed them to hold their perpetrators liable.

I believe that is the same with the other eight bills that we had to consider altogether in one big bundle.

I would like to see the government take that principle of bundling and attach it to the whole question of a comprehensive reform of our criminal law, which is long overdue. Also, we need to reinstate the Law Commission of Canada to assist us in this very compelling, overdue and necessary task of comprehensive law reform in our country.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Madam Speaker, as I mentioned, I was addressing most of my remarks to the issue of self-defence. I was not addressing the matter of property, which I felt was not the particular provisions that were eliciting concern.

I do believe the issue of reasonableness, as my hon. colleague mentioned, while being the generic principle, would apply clearly to both self-defence and in relation to property and proportionality in matters of self-defence.

I also tend to regard the notion of proportionality as being a relevant principle, if not also a generic principle and may also be applicable in matters of property as it is with regard to self-defence.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Madam Speaker, I do think those are considerations that are important because different issues can play out in different contexts in different places. Therefore, the notion of what constitutes reasonableness may vary given the context, both geographical and otherwise, as well as what may determine proportionality, these being the two main criteria in this regard.

I will take this opportunity to address another factor that may pose a concern, which is (h), which reads:

whether the act committed was in response to a use or threat of force that the person knew was lawful.

The question is whether “knew was lawful” is enough or should it be “knew or ought to have known”.

I can imagine a situation with an undercover police officer and the person saying that he or she did not know the action was lawful and therefore he or she was justified in assaulting the officer in self-defence. Again, this may be another factor we may want to clarify. Therefore, should “including whether the person identified his or her lawful authority” be added, or is “knew or ought to have known” be sufficient?

The question points out, and I have used this particular consideration or factor by way of response, that there are a number of issues that will be best addressed in committee.

As the Supreme Court said, the contextual principle is crucial with regard to the interpretation and application of legislation and would it apply with regard to that geographical context and in relation to that contextual principle and the application of the notion of reasonableness and proportionality.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Madam Speaker, I tried to include these considerations in my remarks. The question is whether the response is rational and proportionate. This bill is an improvement over the existing legislation, which, as the case law shows, includes some vague and complex provisions. It is thus very important to have a debate to talk about the principles of the bill and to discuss the bill in committee, where witnesses can come and share their expertise on these issues.

[Citizen's Arrest and Self-defence Act, December 1st, 2011]

Madam Speaker, I am pleased to rise to participate in this debate on Bill C-26, the citizen's arrest and self-defence act. While I may not agree with much of the government's crime and punishment agenda, this legislation is something that I can support in principle, although I do have some concerns that I believe may be able to be adequately addressed in committee.

As my colleagues have noted, this legislation replaces the current Criminal Code provisions on self-defence and defence of property. This change is welcome, because Canada's self-defence laws are complex and out of date, as the jurisprudence itself has demonstrated. This has been further highlighted by recent high-profile cases that have produced some less than ideal results, as already referenced in the chamber debate this morning. The bill would provide greater clarity, therefore, for prosecutors, judges and juries, as well as for those who may find themselves in a circumstance requiring them to defend themselves or their property.

Simply put, I support this necessary law reform. Indeed, a review and simplification of the entire Criminal Code is needed, as I indicated during the period that I served as Minister of Justice and Attorney General. I trust that the government will commit itself to a comprehensive criminal law reform and in that regard reinstate the Law Commission of Canada, which I and others found to be a very valuable resource in this regard.

While this legislation fixes on one particular section of the Criminal Code, much more remains to be done. It is important to point out, for example, that although it was raised at committee, a textual inconsistency that we have yet to correct in Bill C-10 adds, perhaps inadvertently, another error to the Criminal Code. Indeed, in the committee deliberations we found at least four errors in the French text of the Criminal Code as it is now, and errors with respect to the English and French texts when compared to each other. My point is that if we are going to add another piece to the Criminal Code, as in Bill C-10, we should correct it to the extent that we can.

Returning to Bill C-26, the changes to the self-defence provisions would repeal the current complex self-defence provisions, which are spread over four sections of the Criminal Code, and create one new self-defence provision. Currently sections 34 to 37 of the Criminal Code provide distinct defences to those who use force to protect themselves or another from attack, depending on whether they provoked the attack or not and whether they intended to use deadly force. In that particular regard, the use of deadly force is permitted only in very exceptional circumstances, such as when it is necessary to protect a person from death or grievous bodily harm.

The new legislation in Bill C-26 would, as one section of the Criminal Code alone, permit persons who reasonably believe themselves or others to be at risk of the threat of force or of acts of force to commit a reasonable act to protect themselves or others. The act outlines factors to consider when assessing reasonableness, something I will address shortly.

With regard to defence of property, sections 38 to 42 of the Criminal Code currently outline multiple defences for the “peaceable possession” of property. The defences respecting the type of property relate to whether the property is either personal or real property, the possessory right of the possessor and of the other person, and the issue of proportionality in the threat to the property. In addition, the code requires that one consider the amount of force used when a property defence is raised.

I do not intend to address in particular the legislation with respect to these property defences in particular. Briefly, Bill C-26 would repeal what jurisprudence and experts have held as the confusing defence-of-property language, now spread over five sections of the Criminal Code, and remove in part the distinction between defence of real and personal property.

Under Bill C-26, one new defence-of-property provision would be created, eliminating the many other distinctions that currently exist in the code and arguably serve no purpose but to confuse and confound the matter. Simply put, the new provisions would permit a person in peaceable possession of a property to commit a reasonable act, including the use of force, for the purpose of protecting that property from being taken, damaged or trespassed upon.

In particular, my concern is not with the defence of property provisions, with which I agree, but rather with the new self defence provision, which I believe, while I support again this approach to amendment, may in and of itself arguably be overbroad.

I will state at the outset that it is not as though, without the bill, there is no right of self defence or citizen's arrest. Both exist as a matter of the common law. Both have been codified as statutes. Indeed, if we did not have a statutory basis, we would have the common law. Statutory reform now would in fact refine and, hopefully in this instance, improve our approach and understanding of this matter.

Primarily, the concern is that the current Criminal Code provision with respect to self defence provides that, “Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling, force by force”. Thereby, confining self-defence to assault situations and noting that it could not have been the result of provocation.

This new legislation would remove the assault requirement entirely, speaking of force or threat of force, and also would remove provocation. This is where I believe that committee study of the bill will be helpful.

What force or threat of force is contemplated by the new legislation? While one may consider that it refers to physical force, we might want to specify that, or we might also want to ask the question whether the legislation also envisages the threat of economic force in a bargaining situation, for example. This is not to say that the current limitation of the Criminal Code is self-defence only in assaults is the correct approach, but it may be that we would inadvertently be opening the door to other claims and concerns.

The legislation offers a list of factors to consider when determining whether or not the action taken was reasonable in the circumstances, and where the current Criminal Code, as I noted, speaks of provocation, something which this legislation would remove, the new legislation includes in its factors the person's role and the incident.

The question is whether this provision is meant to account for provocation. Might we want to amend it to say, “including whether there was provocation on his or her part”. To my mind, that would clarify the rules and what it is meant to address, as it may be inappropriate to eliminate the entire line of jurisprudence surrounding the notion of provocation.

I would like to focus on some of the factors list, as this is where I believe we may have to address it in committee, though again, as I say, I am supportive of the bill in principle.

The most concerning or disconcerting factor here is found in (e) in what would become section 34.2 of the Criminal Code. The factor, again with respect to determining the reasonableness of someone's self defence action, refers to the size, age and gender of the parties to the incident. Size and age I can appreciate. As one of the older members in the House, I can attest that people sometimes make certain assumptions about age, including sometimes about the imminent retirement of a member, which may be far from the mark.

The use of gender in this factor warrants a certain approach or critique. Indeed, some might call it a feminist critique, but I propose it just as a critique on the merits. What does “gender” itself have to do with reasonableness? If we are trying to address a size imbalance between the parties to a incident, is not the size factor itself sufficient? If we are trying to address a power or strength imbalance, might we use those words or some other phrase such as perception of potential force that could be exerted. As soon as we put in gender, we may be opening the door to the resurgence of a series of myths and stereotypes, which have, regrettably, undermined our criminal law, as we have observed most notably in the area of sexual assault.

This would open the door to all sorts of assumptions about gender playing out, either in police decisions to prosecute or in judges' rulings and the like.

The concern here is that we may see some relying upon and the furthering of the outdated notion of a weak, defenceless woman. If she is unarmed, we have a factor, as set forth in (d), whether any party to the incident used or threatened to use a weapon. Again, the question is what gender may be adding.

Its presence in the statute implies that there is some fundamental difference between capacities of men and women to protect themselves. While I remain unconvinced that this itself is something we should be addressing in this fashion, the point is that if there is a size or power or weapons imbalance, that is what the issue is, not the gender of the person.

On this point, too, we may have certain stereotypes about masculinity as well. Some men who are attacked or feel an attack is imminent, may respond aggressively, others more passively. Again, the question is whether this factor implies that only one type of response is appropriate. I think this is something that may warrant addressing on deliberation in committee.

A final factor that we may want to address is in (f), which refers to the nature, duration and history of any relationship between the parties to the incident, including any prior use of threat or force and the nature of that force, or threat. I can imagine that this could raise difficulties in conjugal relationships where there is a long and complex history between the partners and the focus of the police service or the judge may be on the physical relationship or force, not taking into account considerations like economic dependency or psychological force that are also important.

Indeed, I have a particular concern here that couples that may have had a disturbing relationship over time and then one partner crosses the line, a judge may pass it off as par for the course instead of addressing it as a serious act of conjugal violence. Again, this is something best addressed in committee.

The final concern I have with the bill has been raised by numerous academics and has been raised this morning as well. It is the potential risk for vigilantism, which we certainly do not want to promote this.

With reference to my comments earlier about the scope of self-defence no longer being just assault and the addition of the word “threat” of force, it may be that we are somewhat overbroadening this bill such that we may give a pass to those who really should not be engaging in matters best left to our informed and uniformed first responders.

I welcome this modification to Canada's criminal law. It would clarify and streamline self-defence and defence of property. However, as I mentioned, I have some concerns with some of the factors enunciated in this legislation. It is my hope that, through thoughtful and informed deliberation and debate in committee, we may be able to address these issues and favourably resolve them. The bill can then enjoy the full support of the House, as it now has, as a matter of principle, but then can be more fully supported with regard to any considerations that may raise some matters for concern.