Irwin Cotler

[Petitions, November 30th, 2011]

Mr. Speaker, I am pleased to table a petition wherein the signatories express their concern that the bundling together of nine separate bills in one omnibus bill, Bill C-10, prevents the informed consideration that each bill independently warrants.

They further express concern that the costs for implementing these bills have not been properly assessed, and that the provinces of Quebec and Ontario have expressed their refusal to pay for these measures. The petitioners call upon Parliament to separate the bills and allow members to consider each of the bills separately.

[Justice, November 29th, 2011]

Mr. Speaker, the justice for victims of terrorism act would give victims of terror a civil remedy against their terrorist perpetrators, but it would limit the remedy by immunizing the state perpetrator of terrorism, allowing the remedy to be used only against proxies or agents of the state sponsor.

Why is the government denying Canadians an effective remedy against states that support terrorist proxies or that commit the terrorist acts themselves?

[Justice, November 29th, 2011]

Mr. Speaker, all of the available evidence, including evidence from the Department of Justice, shows that mandatory minimum sentences are excessive, ineffective, disproportionate, costly and do nothing but increase prison populations.

Will the Minister of Justice present to the House the evidence on which he based his decision to support mandatory minimum sentences?

[Safe Streets and Communities Act, November 29th, 2011]

Mr. Speaker, the other parliamentary secretary made reference to the fact that we should be going across the country and listening to Canadians, not engaging in fear-mongering. I have gone across the country and I have listened to Canadians, both in my former capacity as minister of justice and now as an MP, on this bill.

I would like to put two questions. Is it fear-mongering to raise evidence-based critiques of mandatory minimums, some of which are based on evidence contained in Department of Justice publications, as I know them to be?

Second, is it fear-mongering to raise concerns about whether Bill C-10 comports with the Canadian Charter of Rights and Freedoms when the minister of justice, whoever he or she may be, has a constitutional duty to ensure that legislation comports with the Charter of Rights and Freedoms?

[Safe Streets and Communities Act, November 29th, 2011]

Madam Speaker, this is the first time that it is being discussed and debated in this House. A similar piece of legislation was introduced in the other House and debated in the other House, but it was never introduced and debated in this House. The last I looked, we still have two chambers. In this chamber, in the House of Commons, this legislation was only tabled for the first time and debated for the first time in the House and at committee.

It is, as I said, such a piece of transformative legislation that it would have warranted debate, even if it were not for the first time, and extended debate both in the House and in committee.

However, this is the first time that we are debating it and it is bundled together with eight other pieces of legislation. I would say that each of the eight other pieces of legislation, individually and collectively, warrant their own differentiated discussion and debate. Regrettably, we do not have that. We are at least fortunate to be able to address this, albeit for the first time in this House.

[Safe Streets and Communities Act, November 29th, 2011]

Madam Speaker, I always benefit from my exchanges with the hon. member for Scarborough—Guildwood, and here is yet another example. He is exactly right. This legislation does not give the victims of terror an effective remedy against the principals involved in the terrorist action. It would give them a more limited remedy only against their agents or proxies.

If we really want to give the victims of terror the voice that the government purports to wish to give them, then we need to authorize a civil remedy against the state, terrorist, perpetrator themselves. Otherwise, we would not only circumscribe but limit the civil remedy and, indeed, we would continue to immunize the terrorist state from liability.

[Safe Streets and Communities Act, November 29th, 2011]

Madam Speaker, at this stage in the proceedings, the motions that I will be referring to relate to those in Group No. 1, Motions No. 2, 5 and 8 in particular.

In effect, what I will be doing is speaking to a set of motions that relate to one particular part of the bill at this stage in the proceedings, which is among those being addressed. That is the part with respect to justice for victims of terror and amending the State Immunity Act.

I also want to add my voice to the words of my colleague, the member for Saanich—Gulf Islands, in paying tribute to Maureen Basnicki. As a victim of terror, she has been advocating for this type of legislation for years, as has the Canadian Coalition Against Terror. I want to acknowledge their advocacy all these years, and pay tribute to them.

If we look at this piece of legislation, we will see, although it may not appear as such, that this is really transformative legislation. This legislation is historic, which is not a word I use lightly.

If one looks at our laws, particularly in the matter of giving civil remedies to victims of terror against the terrorist perpetrators, which do not exist, the reason they do not exist is that we have a State Immunity Act that immunizes the perpetrators of terror from any civil suit. This is the first time that we will be amending the State Immunity Act to give victims of terror a civil remedy against their terrorist perpetrators. That is why I supported this legislation. I support it in principle. That is why I am moving the amendments. They are not in opposition to the legislation. They are intended to help improve the legislation, to give victims a more effective voice against their terrorist perpetrators, and in fact, to hold the terrorists more expressly accountable for their terrorist acts.

That is the first point as to why this legislation is so transformative. For the first time, we will be amending the State Immunity Act to give victims a voice to hold terrorists accountable.

Second, we will be correcting a historical anomaly in our legislation. As it now stands, there is a commercial exception in the State Immunity Act. By a commercial exception I mean that if a Canadian victim has suffered damages by reason of a breach of contract, he or she will have a civil remedy, but if he or she is a victim of terror, he or she will not have a civil remedy.

We have a situation where our legislation gives an implied preference with respect to actions taken for breaches of contract as against actions taken by victims of terror.

This brings me to the third particular transformative dimension. This is the first time that we will be preferring victims of terror against their terrorist perpetrators, who up to now have been immunized by our law for their acts of terror against Canadians.

I have been framing this as a transformative piece of legislation for the reasons mentioned, and also the reasons I moved the amendments in this regard.

One of the things I find ironic and disconcerting is that such a piece of transformative legislation was bundled together with eight other pieces of legislation. I would have thought that the government would have wished to highlight such a transformative piece of legislation. I would have thought that a government that purports to always be wishing to give a voice to victims, and in this instance to victims of terror, would have wished to frame this as a centrepiece of its criminal justice approach, rather than bundle it together with eight other bills.

I would have thought that the government would have wished to have us consider this both in the House when the legislation was first tabled, and then in committee with all the attention, deliberation and discussion that it warranted for being such a transformative and historical piece of legislation. Accordingly, I supported this legislation. I even had a private member's bill which sought to give victims of terror a civil remedy. Therefore, I was pleased when the government introduced its legislation to do exactly that.

I found it ironic that my purported amendments would have been summarily rejected, since they were put forward for the purpose of improving the legislation that the government had introduced to give victims a voice. The representations made by the government when I put forward those amendments were that it was a filibuster. We had already had an abbreviated debate in the House on the tabling of all nine bills, and then we had an abbreviated debate at committee. I moved those amendments as quickly as possible in the abbreviated time that was provided, only to be told that we were filibustering and to be asked why we were considering this legislation again in this House.

It needs to be stated for the record that this is the first time this legislation is being considered in this House. It was never considered in this House. The government attempted to abbreviate discussion on this legislation, on the grounds that it had been discussed here before, which is not the case. Therefore, it warrants the fullest possible discussion.

I will limit myself now to the specific amendments that I put forward in order to improve the legislation.

The first was to give effective civil remedies to victims of terror against the perpetrators of terror. As this legislation now stands, it still would immunize state perpetrators of terror from any acts, injury or damages caused by their acts of terror, let alone the wrongful deaths that ensued. I find it surprising, and it is another anomaly, that this legislation would give victims a civil remedy against the agents or proxies of the state engaged in state terrorism, but not against the state itself. The situation of Libya and the Lockerbie bombing would have been okay under this legislation, if we could have found an agent or proxy of Libya that carried out the act, some terrorist organization acting on Libya's behalf. However, the victims could not have directly sued Libya because Libya would be immunized under this legislation. Similarly, we could not take an action now against Iran for any state act of terror but only against any of its agents or proxies, such as Hamas and Hezbollah, as listed as terrorist entities under Canadian law. I put forward this motion again in order to give victims an effective voice against a terrorist state.

The second is that it would not allow for an action to be taken against a non-listed terrorist entity in our law which is functionally associated with a listed entity. We should allow for that because terrorists can change names and we would not be able to sue.

The third is to give an effective remedy for purposes of execution of judgments by the plaintiff victims. We do not have the kind of effective remedies in that regard that we need.

Finally, giving the government the power to list the governments that seem to be terrorist states in this regard would be an arbitrary exercise of discretion that we should not give to states. Even the government's own witnesses said, “Don't go there. Don't give that arbitrary power of listing terrorists to the government”.

[Safe Streets and Communities Act, November 29th, 2011]

moved:

That Bill C-10, in Clause 2, be amended by adding after line 6 on page 5 the following:

“(6) In any action under subsection (1), the defendant’s conduct is deemed to have caused or contributed to the loss of or damage to the plaintiff if the court finds that

(a) a listed entity caused or contributed to the loss or damage by engaging in conduct that is contrary to any provision of Part II.1 of the Criminal Code, whether the conduct occurred in or outside Canada; and

(b) the defendant engaged in conduct that is contrary to any of sections 83.02 to 83.04, 83.08, 83.1, 83.11, or 83.18 to 83.231 of the Criminal Code for the benefit of or otherwise in relation to that listed entity.”

[Privilege, November 29th, 2011]

Mr. Speaker, I will respond to the two interventions from the other side.

Some references were made to ten percenters. Mr. Speaker, your predecessor ruled that there was a prima facie breach of my privileges because of false and misleading ten percenters that were targeting households in my riding, at that time targeting only the Jewish households in my riding.

It is part of a pattern. I know the Conservatives covet the riding. I know they would like to win the riding of Mount Royal, but they have to do so on their merits, not by false, misleading, and prejudicial information as took place in the ten percenters, which your predecessor ruled was a prima facie breach of privilege, and with a repetition now with these false and misleading phone calls.

This is not a question of rumours of a byelection. We are all subjected to that kind of thing. People in my riding or in any riding might be asking their member, “I heard you might be resigning” or “I heard you might be going elsewhere”, or whatever. That is part of constituents sometimes asking a legitimate question to their member of Parliament. This is not what is being asked here.

These are constituents who have been told, in false and misleading phone calls, by an agency supported by the Conservative Party that there is an imminent byelection and that the member has resigned or is about to resign. It is not people coming up to me and saying they heard rumours as is part of the normal give and take. However, I should not have to be back in my riding this weekend and have people coming up and saying they were called and told that I had resigned or that they were called and told that there is an imminent byelection going on.

Under the principles of breaches of privilege, that is what is called “sowing confusion in the minds of the electorate”. That is what is called “impeding the member of Parliament in the performance of his duties”.

I can speak with my constituents in regard to rumour, but not when they are telling me that they are getting calls making statements of fact, when these are not statements of fact but false and misleading misrepresentations of fact. That is the fundamental difference. This is not a matter of chilling speech. The opposite member elevated this to absolute freedom of speech.

If we look at our whole constitutional law in this country, there is no such thing as absolute freedom of speech. We have laws with respect to limitations on speech with regard to perjury, so people can have a right to a fair trial. We have limitations on false and misleading advertising, directly on point, so the consumer can be protected against false and misleading advertising. We have laws against obscenity, so people can be protected with respect to their human dignity. I can go through the whole law of free speech. I happen to have a certain degree of expertise, having written on it and pleaded it before the Supreme Court.

This has nothing to do with free speech. This has everything to do with false, misleading, and prejudicial information held out in a representation to constituents and held out as if it were a statement of fact, clearly causing prejudice and clearly undermining the role of the member.

If the members opposite say that they are happy to see that I am very active and involved, yes I am active and involved. That is our responsibility as members, to be active and involved.

However, when constituents believe not only that we are not active and involved but that we are not even a member anymore, that we have stepped down or are about to step down, this transforms the entire relationship between the member and his or her constituents.

Equally, when I was asked this past weekend, after my constituents had heard that I had stepped down, I began to tell them about some of the things I was doing with respect to Bill C-10 in this House, which is somewhat ironic that we are speaking on this today or maybe not so ironic that we are supposed to enter into a discussion on Bill C-10. It is a nice diversionary approach on the government's part. However, let us leave that aside.

The point is that the members of my riding were not aware of the work that I have been doing and that was precisely what I said in my point of privilege. It is not only false and misleading but it overtakes and overshadows, and effectively obscures, if not excises, the work that I am doing and the opportunity to engage in what the government has called political dialogue. I would love to be in political dialogue. I do not mind criticism. I do not mind voters coming up and saying, “Your position on Bill C-10, we totally disagree with it”.

That is fine. That is fair comment. That is fundamentally different from a voter coming up to me and saying, “How come you are not even involved on Bill C-10? You are not even there”. That is where the prejudice is: the reduction of the member of Parliament as if he is no longer a functioning member of Parliament.

There is no knowledge of all the work that I have been doing in the last two weeks, whether it was standing in the House to speak to Bill C-304, a private member's bill on the issue of freedom of speech and hate speech, where I thought the intervention was important, or that I have undertaken the representation of an Egyptian blogger, a leader in the Tahrir revolution, now being played out in Egypt, to have been imprisoned for allegedly insulting the Egyptian military, a rather dramatically important case. My constituents had no knowledge of that. When I held a press conference in that case, the questions that I was asked by journalists were, “Are you resigning? Have you resigned? Is there a byelection?”

Therefore, it did interfere with my work. It interfered in my exchanges with the media. It interfered with my exchanges with my constituents. It interfered with the public perception of the work in which I was engaged.

I want to conclude by saying that there is no suggestion here that any speech be chilled or suppressed. What is suggested here is that I practised a misconduct that misrepresents matters that relate directly to the performance of members in their duties as members of Parliament.

To say that it does not address what is being done in this House, it addresses the capacity of members, not only me, to perform their duties in the House and as members of Parliament when outside the House with their constituents, among the public, the media and the like.

It has a pervasive and persistent prejudicial fallout impeding, if not prejudicing, the members in the performance of their duties. It comes directly within all the principles and precedents that I cited in my two statements respecting the request for a prima facie finding of a breach of privilege.

[Privilege, November 29th, 2011]

Mr. Speaker, I think I should respond to the supplementary remarks of my colleague.