Joe Comartin

[Afghanistan, May 4th, 2007]

Mr. Speaker, what we want is for the government to admit that it hid from the House and from Canadians the fact that torture was going on, that it knew about it and that it did nothing about it.

When Colonel Noonan was being cross-examined on Wednesday he brought out the fact that it would have been a simple situation for us with our allies in Afghanistan to build a facility to hold prisoners. It would have held 200 prisoners. It would have taken a very short period of time to construct. The reason he gave for not doing it was that they thought they might be creating another “Abu Ghraib situation”.

Is the reason that we have done nothing about the torture that has been going on simply for PR reasons for the government?

[Afghanistan, May 4th, 2007]

Mr. Speaker, the House leader just does not get it. What this House wants to know is when the Minister of National Defence, the Prime Minister and the other ministers, who have repeatedly stood in this House and said that they did not know anything about torture in Afghanistan, knew about this. This is not about protecting our troops. This is about protecting themselves.

We again ask the Minister of National Defence to stand in this House and tell us when he knew about the torture. Colonel Noonan made it very clear that he passed that information on. When did the minister know? Why did he not tell the House?

[Criminal Code, May 3rd, 2007]

Mr. Speaker, I rise today to speak to Bill C-22, which has as its principal design to increase the age of consent for sexual relations from age 14 to age 16.

The critics of the bill have characterized it in a number of ways: social engineering run amok; the attempt on the part of the legislature and on the part of the state to enter into the bedrooms of the nation, once again; to discriminate against our youth; and an attempt to impose morality, which is the one that we hear most often, by those individuals in our society who believe youth of ages 14 and 15 should not engage in sexual relations.

If we study the history of the legislation and, in particular, a number of the private members' bills, there is some validity to that last charge with regard to those prior bills. It is not valid with regard to this legislation.

Because it is to some degree an issue of conscience, we as a party will treat the bill as one that will not be whipped, that individual members of our party will vote according to their values and their conscience.

I will be voting in favour of the legislation. If we go to the essence of the legislation, it is says that at this time in our history as a country, as a society, it is appropriate in order to protect our youth of the ages of 14 and 15 from being exploited by predators. The best mechanism for doing that is this legislation.

It has two significant components. We are raising the age from 14 to 16 in terms of consent to sexual activity. We are also putting in what is known in legal terminology as a near age defence, and this is absolutely crucial.

The near age defence will allow individuals, couples, to have sexual relations where the age gap between the two persons is no more than five years. That will not constitute criminal activity. If it is beyond five years, then it will be criminal activity and will call for the sanctions that are provided for in the statute and in the Criminal Code more generally.

To give a quick history, the age of consent originally in Canada until the early 1900s was 12. I know this comes as a shock to a lot of people. We got that age from England, as we took its statutes and as our jurisprudence broadened itself, and we drew the age 12 into Canada. It stayed there until the early 1900s when it was raised to age 14.

There was more tinkering with the legislation and then fairly substantial was work done on the age of consent through the late seventies, into the eighties and early nineties.

The approach at that time was to look at the relationship and to pass legislation that said in effect that this relationship, because it is inherently exploitive, would be illegal. As an example, if the relationship was one of authority to one of subservience, that was exploitive by its very nature and therefore illegal. Therefore, a number of sections were passed during that period of time.

Interestingly, in the legislation we dealt with in the last Parliament, Bill C-2, which was really the child pornography legislation, we took a fair amount of evidence on the age of consent.

What came out from the prosecutors and police who had to pursue the exploitive type of crimes was that the sections were grossly ineffective in dealing with that type of exploitation and in particular with the 14 year olds and 15 year olds. The charges are rarely laid any more because we simply cannot get convictions. That was the word we got from the prosecutors and it is backed up by strong statistics in that regard.

There is a bit more history in terms of legislative attempts. The Reform, the Alliance, even the Conservative members of Parliament primarily but not exclusively have brought forward legislation over the last 10 to 15 years to increase the age of consent. Without exception they did not put in any near age defence. We have to appreciate what we are talking about in terms of numbers.

In the last few years there are roughly 815,000 youth in that 14 year old and 15 year old category. The estimate is that approximately 125,000 of them are engaging in various forms of sexual relations. They would be caught by this legislation. Roughly 2,500 to 3,000 are or have been in relationships where the age gap was greater than five years, moving on from six and above. Those are the numbers.

The legislation that we saw coming before the House in private members' bills would have had the effect of criminalizing some of our youth. We have to appreciate in the legislation that simply raising the age from 14 to 16, would have had the effect of criminalizing 125,000 of our youth. Both parties to the relationship would have been engaged in criminal activity because one of the parties was having sexual relations with somebody who was under 16. That was a real problem and one that I have to say those parties in their various positions did not appreciate.

I finally convinced the former justice minister from Manitoba, who is now the President of the Treasury Board, to move an amendment to Bill C-2. We did it jointly. The amendment would have had the effect of raising the age with the five year near age defence. It took some convincing. I think his staff was fairly instrumental in convincing him but that is a bit of an aside.

I am making this point because I want to take a shot at the Liberals. When the amendment came before the justice committee in the last Parliament, the Liberals and the Bloc both voted against it and the amendment went down. It never got to the House. When I heard the Liberal member from Montreal ranting about delay, the reality is this particular piece of legislation could have been incorporated into Bill C-2. The attempt was made and it would have been in effect now for the better part of two years.

If there is any delay, it certainly lies in the lap of the Liberals and the Bloc for not supporting the amendment at that time. Interestingly, two years later, I think because of a great deal of political pressure, they finally have come on side.

There are still some problems with this legislation. We have heard that today. I am going to quickly go through it. I moved amendments on each one of these in committee, two of which were ruled out of order, one of which the Liberals had also moved. That dealt with the section that is clearly discriminatory, so found by a number of our courts including two courts of appeal, in Ontario and Quebec.

With regard to the discriminatory nature of section 159, which prohibits anal intercourse under the age of 18, male or female, that has been struck down repeatedly. Neither the Liberal Party in the 13 years when it was in power nor the Conservative government currently has seen fit to move to amend the code and take that section out. By the way, I introduced a private member's bill yesterday on this. In any case, it was ruled out of order in terms of amending Bill C-22.

There is another amendment that I moved. We heard a good deal of evidence about the concern of the legislation deterring young people in the age category of 14 years and 15 years from coming forward to get health care if they suspect they have a sexually transmitted disease because their partner may be five or more years older than they are. What I was trying to do in that amendment was to provide a protection within the Canada Evidence Act.

An example is if an individual came forward and said that he or she had a disease and needed treatment. Because provincial legislation requires the doctor or counsellor who is treating the individual to report that the other individual, the older person, has that disease, the younger person may decide that he or she is not going to give out that information and therefore will not get treatment or counselling.

The legislative amendment I proposed to the Canada Evidence Act was to provide people with the privilege that if they gave that kind of information, it could not be used against them or their partner in any subsequent criminal prosecution. Again, that was ruled out of order. I have prepared the amendment by way of a private member's bill, which I will be tabling in the House probably next week.

The final amendment I made was with respect to what I saw as a jurisdictional conflict between the federal government and the provincial government having to do with marriage where the age gap is greater than five years. There are jurisdictions that allow judges, along with parents and guardians, and/or ministers, usually attorneys general, to allow an individual who is younger than the stated age in the legislation, which generally is 16 to 18 across the country, to marry, usually when the couple is expecting a child.

If a judge allowed the marriage to go ahead even though the age gap was greater, the police and the prosecutors could bring that couple back, and the senior person in the relationship could end up being charged with a criminal offence. The judge would have to decide whether to convict that person. There is that anomaly.

I moved an amendment which was accepted by the committee. If a couple has the authority to get married even though the age gap is greater than five years, there is that kind of authority from the provincial government so that it would not be an infringement of this section of the Criminal Code.

In conclusion, this piece of legislation is not based on the imposition of a particular set of morals. It is about protecting our children.

Around the globe roughly 60% of the population lives in jurisdictions where the age of sexual consent is 16 or older. There is no clear pattern. We cannot say that some countries are more liberal or that others are more conservative; it does not seem to follow any pattern.

My analysis of it from some of the countries I have looked at is that we simply base it on facts, not on morality, and we say that at this time in our society we require this type of protection for our youth. That is what we have done here. It is appropriate that we have done so. As I have said earlier, I will be supporting this bill when it comes to its final vote.

[Criminal Code, May 2nd, 2007]

moved for leave to introduce Bill C-438, An Act to amend the Criminal Code (consent).

Mr. Speaker, I wish to thank my seconder, the member for Parkdale—High Park, for her support.

This bill is brought forward to deal with the problem we have within our legislation; specifically, section 159 of the Criminal Code. This section of the Criminal Code has been struck down by a number of courts, including two courts of appeal, as being against the Charter of Rights and Freedoms. It, unfortunately, continues to sit on our books. Both the previous government and the current government, even though they have had opportunities, have not brought forward amendments to the Criminal Code taking that out completely.

The purpose of this bill is to do just that. It is a bit lengthy in the sense that it is deleting one specific paragraph, paragraph 159, but it also has a number of consequential paragraphs that need to be amended. That is the reason for the length of the bill.

(Motions deemed adopted, bill read the first time and printed)

[Criminal Code, April 30th, 2007]

Mr. Speaker, I read the article this morning and unfortunately the reporter made the same mistake that the Prime Minister does all the time of using statistics selectively. I go back to what I just said in response to the member for Wild Rose. The rate of crimes involving the use of guns by organized crime groups, by street gangs, in particular in our inner cities in fact has gone up. That is what we need to be focusing on. That is what this bill does with the amendments that I pushed the government to accept.

With regard to the second point in the question, my friend is very correct. The Conservative Party has so focused itself on penalities and getting people after they have committed crimes, that the Conservatives are not spending enough money, time, or analysis on what is really needed to prevent the crime from occurring in the first place. There are lots of programs that should be in place. I have been critical of the government that the promises the Conservatives made in the election and in last year's budget in terms of some very minor preventive dollars that were available, they did not even spend until near the end of the year because they did not know how to spend them. I do not think they are doing much better this year. They need to spend a lot more in that area.

Of course we have heard from representatives of the police association and how offended they are by the fact that there was this promise of 2,500 police officers on the street. Not one has been put there. There is not one agreement with the provinces to do it and here we are 15 to 16 months into this administration. That was promised both in the election and in the last budget. We still have not seen it. In fact, they are trying to stick the provinces with part of the cost for that and in a number of cases the provinces cannot afford it.

[Criminal Code, April 30th, 2007]

Mr. Speaker, the member for Moncton—Riverview—Dieppe raised the issue of numbers. The reality is that the use of handguns and rapid fire guns has increased. As opposed to what most of the Conservatives think, gun crimes overall have not.

Back to the point that I made, there are numbers that justify our focusing on this, and in particular focusing on those groups. Our responsibility as legislators here is to protect our society. That is our absolute number one responsibility. Any crime is one that we have to work and see if there are ways we can stop it or prevent it from ever happening. We should not play with the numbers too seriously. We have to look at programs and campaigns that will reduce the amount of crime in this country, down to zero hopefully some day.

[Criminal Code, April 30th, 2007]

Mr. Speaker, with regard to the use of mandatory minimums, the history in Canada has been, for a long period of time, to look with great concern on the use of that technique in dealing with sentencing individuals who have been convicted of crimes.

It has been generally frowned upon, both by historical legislatures at this level and by our courts. I think back to a period of time, which was a long time ago, going through law school and having the mandatory minimum of seven years for importing drugs into Canada. Shortly after the charter came into effect in 1982, that was struck down by our courts.

In a riding like mine, which has a large number of people moving back and forth between Canada and the United States on a daily basis, one can imagine the number of individuals who were convicted and sentenced to jail for seven years for the simple possession of a small quantity of marijuana.

When the charter came into effect, the courts took the opportunity to strike that down. That is a good example of a mandatory minimum that was grossly inappropriate to the crime and the consequences of the crime.

When we look at mandatory minimums we must ask ourselves when it is appropriate to use them. I will use an example of when it was appropriate in a campaign that worked extremely well, which was with regard to impaired driving as a result of the consumption of alcohol.

What happened, historically, was that large groups of people, MADD in particular, but also our police forces, our judiciary and the legislature, recognized that we had a major problem with impaired driving due to alcohol consumption and that we needed to do something about it, which we did.

We introduced massive education programs to determine the seriousness of the problem and to deter people from using alcohol. We introduced legislation for mandatory minimums, fines, suspension of licences and, in certain cases, jail time. These things had a significant and effective impact. It has tabled off in the last few years but it significantly dropped the rate of impaired driving in this country.

When we hear the Liberals and the Bloc stand and say that it never worked, we need to think of the impaired driving program and that campaign which was effective in driving the rate of that crime down significantly.

What we are faced with today is the use of firearms by a small group of people, which is one of the reasons we were prepared to push the Conservative government strongly to back down from the extreme positions it has taken with some of the provisions of Bill C-10 and brought forth these amendments that are contained in the motions that are currently before us.

Where the principles lie when we use mandatory minimums is to focus on the specific crime and determine whether the use of mandatory minimums will have some impact. We know that it only has an impact if there is an overall campaign, and there is that campaign in this country. We are saying to criminals who are prepared to use guns to commit a crime, serious violent crimes in particular, that we as a legislature will penalize them for the crime. Our police officers are saying that on the street and our judges are saying that in the courtrooms. What we are doing here is being part of that overall campaign to drive the use of guns in violent crimes, in particular, completely out of the country.

We are focused on the specific crimes, which is what the bill does. It looks specifically at serious violent crimes and uses mandatory minimums to say that we condemn the use of guns in those circumstances. We are telling criminals that if they insist on pursuing that type of activity they will face a serious penalty if, at the end of the day, they are convicted of that crime. It fits within the scheme of when we would use it.

I am particularly critical of the Liberals and a little critical of the Bloc in this regard. The use we can make of this has been watered down because the Liberals used it so often when they were in power. In excess of 60 crimes now have mandatory minimums. This will add a number more. Quite frankly, a number of those 60 crimes do not need mandatory minimums, but that was done under the Liberal administration.

When I deal with the Conservatives on these issues, I tell them not to make the same mistakes. If they are going to use mandatory minimums they should use them sparingly, appropriately and in a focused fashion. If they were to do otherwise, they might as well not bother because mandatory minimums would not have any impact whatsoever. A mandatory minimum worked in the impaired driving situation, but had we done that on a whole series of other crimes of that nature, its effectiveness would have been extremely limited and reduced.

I told the Conservative Party, on behalf of the NDP, that as we promised in the last election, and as opposed to what the Liberals did, we kept our promise, that is what we did here, but we were not prepared to go to the extreme to which the Conservatives were prepared to go. That is why we have these amendments. It is quite clear in my mind and from all the opinions that we have heard, if we had included the mandatory minimum of 10 years on the third offence, it would have been struck down under our charter. Our courts have sent us clear messages that they are not prepared to allow mandatory minimums to go that far even on these serious crimes.

I proposed that amendment to the government. It accepted that. It was an acceptance of the reality of our jurisprudence at this period in time.

That is not to say at some point we may not move to a mandatory minimum of greater than the seven years which we have now, but at this point in time, with our jurisprudence in our courts in terms of proportionality of sentencing and under the charter, that is as far as we can go. I believe it is as far as our courts would allow us to go. Quite frankly, I agree with our courts in that regard.

If we pass these amendments, what clearly will go out is the message that we are serious when it comes to the use of guns in serious violent crimes. To some degree, the bill targets the street gangs and organized crime more extensively because most of the guns are smuggled into this country through more traditional organized crime groups and are sold to street gangs. We are telling those groups that we are not tolerating that any more. If they do not stop using guns in crimes, they will go to jail for an extended period of time. There is no discretion. They will go to jail for an extended period of time. That message has to be communicated.

I will finalize my comments with direction to the government. As with the mandatory minimum used in impaired driving, we have to have a very clear and focused educational program directed to those two groups that this is what is going to happen. We have to carry that out.

[Criminal Code, April 30th, 2007]

Mr. Speaker, I sat through the justice and human rights committee hearings both in this Parliament and in the previous Parliament and, in the previous Parliament, the Liberals consistently supported mandatory minimums in numerous areas and passed laws to introduce them. Even though they heard the same evidence, they went ahead and introduced mandatory minimums. In fact, during their 13 years in government they introduced 40 to 45 mandatory minimums into the Criminal Code.

I would just like the member's comments on the position the Liberals are taking now, which is that we cannot have any mandatory minimums or at least that we should have no mandatory minimums of this scale. It is similar with the Bloc members where, in the last Parliament, they voted in favour of mandatory minimums.

I am wondering under what circumstances the member would see it as appropriate for us to have mandatory minimums.

[Criminal Code, April 30th, 2007]

Mr. Speaker, I rise on a point of order and refer to the page on subamendments that appears in Marleau and Montpetit at page 454. It states that:

Sub-amendments must be strictly relevant to the amendment and seek to modify the amendment, not the original question; they cannot enlarge on the amendment, introduce new matters foreign to the amendment or differ in substance from the amendment.

Every single one of these amendments clashes with that ruling in Marleau and Montpetit. They either destroy the intent of the amendments that were moved by the parliamentary secretary or change them so dramatically as to have the same effect.

These clearly are not proper subamendments. They should be ruled out of order. We should get on with the debate on the basic issues that are in fact properly before the House.

Again, Mr. Speaker, those words are at page 454 of Marleau and Montpetit. I would recommend that they be taken into consideration in making your determination, Mr. Speaker, as to the admissibility of these subamendments.

[Criminal Code, April 30th, 2007]

Mr. Speaker, I have a comment more than a question for emphasis.

I am reading from the Liberal platform, which was a speech delivered by the prime minister of the day. In talking about tougher penalties for gun crimes, he stated:

A Liberal government will reintroduce legislation to crack down on violent crimes and gang violence, and to double the mandatory minimum sentences for serious gun-related crimes.

The effect of that is that there would be an eight year mandatory minimum--