Joe Comartin

[National Security, October 5th, 2006]

Mr. Speaker, today there were disturbing new revelations that show the extent to which the FBI investigates Canadian citizens right here in Canada, largely without the knowledge or permission of Canada's government. The FBI operates its largest foreign operation in Canada. Under the previous Liberal government, the FBI opened two field offices.

Does the Conservative government believe it is okay to let a foreign agency come across our border, onto our soil, and investigate our citizens without our permission? Is the government sanctioning that?

[Criminal Code, October 4th, 2006]

Actually, they did, and we told them it would cost about $100 million a year. What did the Conservatives do? They put in $20 million for two years in the budget delivered in the early part of this year.

When the Minister of Public Safety and the Minister of Justice appeared in front of the committee in the springtime, I asked them how they were going to spend the $10 million allotted for this year. They could not tell me about one point that they were going to spend money on. Not one. The money is inadequate in terms of doing preventative work and the government does not know what it is going to do with it anyway. That is so typical on crime because the government has no idea what it is going to do.

The government brings in pieces of legislation that it knows will not get through the justice committee, yet it just keeps dumping legislation into the House. The Conservatives are not serious about crime. They are misleading the Canadian people. That was their pattern in the election and it is a pattern with them in government.

[Criminal Code, October 4th, 2006]

Mr. Speaker, I thought that was just a speech. I think he forgot the election was over about nine months ago.

It is so typical of the Conservatives not to understand our platform. We were very specific. If we are going to get serious about dealing with crime in this country, which they are not, a series of pieces of legislation just thrown into the House will not solve the problem. There are any number of other ways in which we can deal with crime.

Have the Conservatives done anything yet about delivering on their promise to deal with programs that would prevent crimes from ever occurring?

[Criminal Code, October 4th, 2006]

Mr. Speaker, Bill C-23 is a series of amendments to the Criminal Code with regard to, primarily, criminal procedure but also with regard to some changes in the sentencing provisions in the code and some, what I would see as improvements in the language rights of people who are accused and appearing before our courts.

I know I sound like a broken record but I will be raising, as I have just about every time I have spoken to a bill, particularly a crime bill from the government, the need for a major overhaul of our Criminal Code. It is long overdue. It is not in the process at all. The government has made no serious attempt to bring the Criminal Code into the 21st century. In some respects, this mini omnibus bill is a reflection of the need we have to reform and, in many respects, rewrite our Criminal Code.

The code contains serious contradictions and gross inconsistencies, both in crimes and the sentencing that we apply to crimes, crimes in some cases where the maximum penalty is way out of line with the seriousness of the offence in the sense that it is either way too low or, in other cases, way too high.

This is not just an academic discussion. The courts, all the way up to the Supreme Court, have made it very clear, particularly with regard to the sentencing provisions within our Criminal Code, that there has to be a reasonable proportionality between the seriousness of the offence and the sentence that is imposed. I believe we are at risk at some point of defence lawyers beginning to consistently challenge, I believe ultimately successfully, a number of provisions within the Criminal Code in that the penalties are widely disproportional to the severity of the crime and grossly inconsistent with other crimes that I believe objectively most people would say are less severe but have greater penalties. That is just one example of the problems in the code as we have it.

We have not had a major revision to our Criminal Code since, I believe, sometime in the 1970s. We are getting on close to 40 years since there was an overall to the code, and even that was not a complete revamping of it.

I compare that to the number of times this has occurred in other common law jurisdictions around the globe. A number of states in the U.S., in England, Australia and New Zealand, countries like that, have all done much better, more efficient and more timely work on their criminal codes than we have.

I believe this problem is heightened now by what happened a week ago when the government, in a very arbitrary manner, decided to kill the Law Commission, which was probably, in my opinion, the only body in the country that could have organized the necessary talent and brought it together. I do not think there is one institution, one law school or even the Law Commission itself that would not have had the resources or the talent, quite frankly, to be able to prepare a draft Criminal Code in order to update it and bring it into the 21st century.

The Law Commission will be gone if the government is successful in its meanspirited approach to that particular institution, an institution that is renowned in the common law jurisdictions around the globe. It is interesting to read the number of commentaries that have come in from our Commonwealth partners in particular about the work the Law Commission has done. It has done cutting-edge work that a number of other countries have looked to and, in some cases, used extensively in revamping various parts of their justice system and their laws.

It will be a real shame if the government is ultimately successful in destroying that institution because with the kind of problems we have with our Criminal Code it will no longer be a resource that is necessary to get the draft of the code in place so that it can be considered by the House at some time in the future.

Some of the changes the Conservatives are proposing in this mini omnibus bill reflect the technological advances that have been made but have not been taken into account. I will use a simple example. Under the Criminal Code, as it is now, we can send documentation by fax machine to other jurisdictions and the document that comes out of the fax machine is sufficient for the court to use as proof of the validity of the document and it can then be used in the court proceedings in the new jurisdiction. However, this cannot be done by telecommunication. An email cannot be sent the same way. The bill, assuming it passes, will allow the criminal justice system to use that advance in telecommunications.

Another provision to which I think we are all sensitive is communication equipment, computers, et cetera, that are used for the purposes of child pornography or luring children. The Criminal Code has no provision for that equipment to be seized after an accused has been convicted. It is just a blank because 10 or 12 years ago the Internet did not exist for mass use and, therefore, there was no need for that provision.

This is yet another example of where we need to update the Criminal Code in order for our courts to be able to adequately deal with convicted persons and dealing not only in penalties of imprisonment or fines but also being able to seize the equipment that they used to perpetrate those crimes. Both of those are clear examples where the Criminal Code has not been able to keep up with technological changes in our society.

Another proposed amendment is to modernize how we deal with betting and bookmaking. As it stands right now in the code, there are quite severe limitations on what that means and a great deal of bookmaking at this point is conducted by way of modern technology, telecommunications, computers, et cetera. As those crimes are now defined in the code, when they are performed that way they are almost certainly not crimes under the code. We need to update that and say that the conduct is the same as it would be if one were running numbers and communicating those by way of a computer over the Internet that would now be a crime. It is not at the present time, which is why the code needs to be updated.

All of those are clear examples of the inadequacy of the Criminal Code in this country at this time and they are a clear reflection of the need for a major overhaul of the code. It is so confusing and so complicated it really impairs our ability to run an efficient justice system.

However, because the government is much more concerned with the hot button items, we consistently see, time after time, very short bills coming through dealing with one hot button crime to draw attention in the electorate, but, quite frankly, in a very cynical way, having no intention of dealing with the problems in this Parliament.

We were doing some scheduling work in the justice committee yesterday and it will not see this bill, assuming it gets through second reading and out of the House, until the fall of next year and it may even be into 2008 before the committee sees it because it is that backlogged. We have many bills and we have been told that we will get two more the week after the break. The list seems to be unending.

Rather than dealing with this in a reasonable fashion and recognizing that it has to stop playing politics with crime, the criminal justice system and policing in this country, the government moved to do an omnibus review of the Criminal Code and brought back a whole new code to Parliament. As long as the present government is in power, which, hopefully, will not be for too long, we will continue to see consistently small bills coming through addressing hot button items that will have no chance of ever being dealt with by Parliament simply because the justice committee is so backlogged already.

With regard to the balance of the bill, I want to address some comments to the sentencing provisions generally, but the specific concern I have is with the increase in the fines for summary conviction offences. Those are the lower offences in terms of seriousness as opposed to indictable offences.

Fines used to be $1,000 and then they were increased to $2,000 back some time in the 1970s or 1980s, about 20 or 25 years ago. The government is now proposing to increase the $2,000 fine by a multiple of five to $10,000.

The concern I have is that those summary conviction offences tend to be the lower end ones. They tend to involve, in a vast majority of cases, individuals who are at the lower end of the socio-economic levels in our society and who would be most affected negatively in terms of their ability to pay fines. It appears, whether it is intended or not, and with the present government we never know for sure given some of the vindictiveness in its cuts last week, that the government is intentionally targeting that lower socio-economic group within our society.

However, whether it is intentionally targeting that lower socio-economic grouping within our society or not, we will end up, almost certainly, with more people from that lower socio-economic grouping being incarcerated in our provincial prisons.

This would have a double impact. It, obviously, would have a very negative impact on those particular individuals, and unfairly so compared to people who have a better economic status, but it is also a form of downloading responsibility on to the provinces. The federal government is attempting to pass a law that will require the provincial governments to increase the number of cells they have because of the number of people they will now have incarcerated in their prisons because of these new offences. If those individuals cannot pay the fine they will be going to provincial prisons, not federal prisons.

We know, from all sorts of evidence that we heard fairly recently at the justice committee, that our provincial jails are way overcrowded. There is not one province in this country that does not need additional cells. In some cases, particularly in the provinces where there is less wealth, there is a very strong need for their prisons to be expanded. This would only dump more people into those provincial jails with the end result being that the provinces will need to find ways to pay for it.

This is a double whammy because our provincial jails have no more capacity. Not only will we have an increase in the yearly administration costs, because so many more people will be incarcerated, but the provinces will need to move out substantial amounts of capital dollars to build additional prisons at the provincial level. With those huge amounts of capital dollars that will go out, there will be substantial increases in their yearly administration and operation costs for those same jails.

There was no proposal in the last budget, and no proposal with regard to this legislation or any of those other crime bills we have seen, for the federal government to give any additional money to the provinces to respond to the need that is going to be created by the federal government but dumped on them, leaving them the responsibility to find dollars in order to be able to house these additional convicted criminals in a prison setting.

We need to take a very close look at this when it gets to committee, assuming it gets there, as to whether the fine should be increased to $10,000 or to an amount that is perhaps more in keeping with inflation since the last time the amendment was made to the level of fines for summary convictions.

I am conscious of the time. If I have time, I will come back to the sentencing issue in a few minutes, but I do want to speak about two other issues.

One issue is procedural. It is with regard to these relatively minor but important changes that need to be made when we are selecting juries. Basically what is happening is that if a juror is being challenged for what we say is “cause”, the cause being some declared bias either against the accused who is before the courts or the Crown, that juror can be challenged in appropriate circumstances. It has been difficult in the past to determine how we decide whether the evidence we are getting from that prospective juror is sufficient to show a conflict and a bias to the extent that he or she would be excluded.

The amendment being proposed, which I think is a good one, is that if jurors are already selected, we would allow two jurors to make a determination, a finding, in effect, taking the place of the judge, as to whether the person has a clear bias and should be excluded from the panel.

If we do not have sufficient jurors already on the panel, then two would be picked at random from the general panel sitting in the courtroom at the time. They would be sworn in and would be required to make a decision as to the bias of the juror in question and determine whether the juror is to be excluded or included in the panel.

I think that is a major step forward in the jury selection process. I think it makes it more credible. It makes it more accountable to the panel of jurors that is there.

There are some additional provisions to clarify the availability of a person's right to use the alternate official language from the one that is customarily used in the court. There have been some problems with that as to when it is available. Oftentimes it crops up when there are co-accused, each of whom has as his or her primary language one of the official languages but not the same one. There is clarification in this bill, which I believe will go some distance toward rectifying some of the problems our judges have had in determining how extensively available trials in both official languages are in this country. That is a major change, one that would be welcome.

With regard to a number of other criminal procedural matters, again, it is a criticism of both the previous government and the current one that we have not done these before. They are quite straightforward. They should have been done a long time ago. In some cases, these problems were identified as long as 10 to 12 years ago and we are just now getting around to it. We have no way of knowing whether we are actually going to get through this bill, as I said earlier, but it may be some time down the road.

Let me conclude, in my last minute, by saying that we badly need a total revamp of our Criminal Code. This bill is a clear example of all sorts of corrections to the code, corrections that have been needed for a long time. We are probably not going to get to them in this Parliament. I keep emphasizing the need for this major revamp and reform so that our Criminal Code is in the 21st century, not back in the 1900s.

[Criminal Code, October 4th, 2006]

Mr. Speaker, I also enjoy hearing the speeches by the member. Sometimes he even speaks on the matter before the House and that is even more enjoyable.

I would like to draw his attention back to the specific provisions of the bill. One of the provisions in the bill is to increase the fine for summary conviction offences from $2,000 to $10,000. Has the member any thoughts on whether that is too steep an increase? Does it have the risk of compelling people who cannot afford to pay the larger fines to jail time as opposed to wealthier people who can easily pay fines? Do we have a povertization of crime in this process?

Could the member comment on that?

[An Act to Amend Certain Acts in Relation to DNA Identification, October 3rd, 2006]

Mr. Speaker, I thank my colleague from the Bloc Québécois for his question.

There is no system that can ensure that the RCMP or other police force operates without making mistakes. However, we can establish rules to control them.

My colleague has raised a good point as one of the suggested amendments to this bill would allow police officers and the DNA bank to provide genetic information to foreign police. This would be a first and could give rise to a potential problem that we will be studying in committee.

Once again, there is no system that is absolutely perfect. Yet, we will continue to try.

[An Act to Amend Certain Acts in Relation to DNA Identification, October 3rd, 2006]

Mr. Speaker, a day or two after the Treasury Board announcement of these cuts, and specifically the killing of the Law Commission, one of the witnesses before the justice committee was from the National Chiefs of Police Association. He made the same point I just made with regard to the need for an omnibus review of the Criminal Code. The piecemeal approach being taken by the government is disliked by the police association because it is confusing for the association, its officers and the general administration of justice.

I asked him if he knew of anybody in the country, other than the Law Commission, that would have the ability to prepare a model criminal code, a policy paper in effect, on how we would restructure the Criminal Code. He did not know of any other group that would be capable of doing that, and this is a very accurate answer.

I am not aware of any other group, other than the Law Commission, that would have the ability to bring together the resources in our country to prepare an omnibus review, which we so badly need, of our criminal justice system and specifically of the Criminal Code.

[An Act to Amend Certain Acts in Relation to DNA Identification, October 3rd, 2006]

Mr. Speaker, in my speech yesterday I raised the point about the ulterior motives of the government.

My colleague made the point that this bill was in draft form in the last Parliament. Therefore, it is not part of what I see as a clear intention on the part of the government to piecemeal hot button crime issues into the House one bill at a time, with no expectation that we will get through them before the next federal general election, which we all know will be upon us sooner rather than later. Matters already before the justice committee have been prioritized. They are so extensive that anything coming out now, including probably this bill, is not going to get back to the House before there is another federal election.

[An Act to Amend Certain Acts in Relation to DNA Identification, October 3rd, 2006]

Mr. Speaker, I stand to speak to Bill C-18, which is a bit of an omnibus bill but a small omnibus bill, with regard to the use of DNA technology in our criminal justice system.

As we heard earlier today from the minister, the bill is specifically designed to address a number of points that were missed when we initially set up the system back in 2000 and then again in the 2004-05 Parliament when we had some rather significant amendments to the bill that passed and became law. Even since then it has become clear that additional amendments need to be made.

I must admit that I approach this bill with some trepidation in terms of expressing support for it. I believe the government is once again, when it comes to bills that are related to crime in this country, to the Criminal Code, to a criminal justice system, taking a piecemeal approach that is not justified by the reality of what we are confronted with in this House and, in particular, with what we are confronted with in the justice committee and the huge agenda because of the large number of individual bills that are coming from the government. Unfortunately, this bill is another example of this happening.

It is particularly compounded in this case because we were mandated, under the legislation that was passed to set up the DNA registry, to do a parliamentary review of that at the five year mark. The five year mark expired in 2005. The previous Liberal government did not get to this review and the present government still has not announced when we are supposed to be doing that.

Bill C-18 should be part of that overall review that we will be doing. We will end up duplicating significantly the amount of time that we spend on the issue of a DNA registry because of this.

This is also a flagrant example of some hypocrisy on the part of the government, which, when in opposition, had a number of private members' bill, one of which was sponsored by a member of the current cabinet and would have set up additions to the registry. The bill was entitled Lindsey's Law and it would have set up a separate registry for samples of DNA found at crime scenes that had the potential to be samples of deceased individuals.

We have the tragedy of family members, loved ones and close friends disappearing but we have no way of using the DNA technology that we have, which would be very useful in tracing these people.

The concept of setting up this separate registry has all party support and yet the government did not see its way clear to include that provision in this bill so we could consider it at committee at this time. The government did not do the overall review. It is being done piecemeal again just on these limited number of sections and it ignores what has been a long-standing policy on its part to create this new registry. It completely ignores it.

When we asked the minister about it earlier today, his response was “we'll get to that some other time”. That is simply not acceptable. It almost begs the question of where the government is going with regard to the criminal justice system. How is it dealing effectively with crime problems in this country? As I say, it begs the question, but the answer is fairly obvious. The government does not know where it is going and it is not doing it at all effectively or efficiently.

I will now speak specifically to the provisions of the bill. As I have said, we have no problem approving the bill in principle and then having it go over to the justice committee. The bill would fill in some problems with the existing infrastructure of the DNA system but we do have some concerns and we will be raising them in committee.

The amendments we passed, which became law in 2005, had some retroactive provisions. The concern at committee at that time was that those retroactive provisions may contravene the charter. We do not know, and I am not sure the government knows, whether there have been any challenges to that section. However, if there have been it brings into question the retroactive provisions that are now in this bill that will cover a relatively small number of charges but where we will be getting samples from people who have already been convicted and are currently incarcerated. This is one of the issues we will need to raise.

Several other provisions raise issues of privacy and our rights under the charter. With regard to one of the issues, which is only an example because there are several others, there are provisions within the bill that would allow the DNA data bank to release information where the sample that is being examined is not a match that needs the top standard. We have various standards in this regard. We obviously have provisions where there is no match at all. We have provisions where it is a match almost to a full 100% and then we have gradations in-between.

What the bill proposes is that the data bank be allowed to communicate information on a sample where it has only been a moderate match. As that may raise a charter issue it will need to be explored at committee to see whether we can tighten up the language or perhaps not provide for it at all.

The other provision I have spoken to in the House is the provision that would allow for facilitating of court orders that direct the destruction of DNA samples because they were taken improperly. Usually that occurs where the sample was taken relative to a crime that was not within the regime of the existing legislation. The difficulty we have is that when we took evidence in the 2004-05 Parliament, it was clear from the people at the data bank that it posed a significant problem, because in the destruction of certain samples others may be destroyed. We will need to explore that matter.

However, if that does go through, there is an additional problem in that the bill would allow the prosecutor, the crown, to apply for the destruction of the sample taken improperly but it would not require the government to provide any notice to the individual whose sample was taken and whose sample is now being proposed to be destroyed. Out of fairness, if the sample was taken improperly, the individual should be notified that it will no longer be on the record. I think that is an issue around privacy and, quite frankly, just fairness that they be given that notice.

One of the big issues that we will be debating when we get to the review of the existing legislation from 2000 will be the issue of whether we will be expanding the number of crimes for which people have been convicted for which samples can be taken. The system works right now on a two tiered basis but all of the crimes that are under the regime now are quite serious crimes: murder, attempted murder, serious sexual assault, serious physical assault and crimes of that nature.

We have seen other regimes, notably the U.K. but also a number of the states in the U.S., that have extensively expanded the use of taking samples for DNA. The committee was a bit shocked when we heard that in England the authorities can demand and obtain samples of DNA from an individual who has been charged with not a crime but a quasi-crime, which is a driving offence under the highway traffic act.

We will get into debate on how far, if at all, we will be extending the list of crimes where samples can be ordered and taken.

We are doing that, though, in the bill. It says to me that we should be doing the review at this time rather than waiting to do it some indefinite time in the future, because we are expanding the list of crimes. We are adding at least two more and potentially one or two that are subcrimes under that.

It is a situation where the process we are going through is very inefficient. I believe it does not allow the House, the committee and, ultimately, the country the opportunity to do that review of the 2000 legislation, of the regime that we have now. I recognize, quite clearly, that a number of the reservations we had back in 2000 were constitutional and charter issues.

We have had the decision in R. v. Rogers earlier in the spring this year when I believe we had a clear signal from the Supreme Court of Canada, where that decision ended up, that some of the reservations we had earlier are no longer applicable, but it is not a blank cheque. As opposed to what I heard from the minister this morning, I believe the Supreme Court still has some reservations about the use of DNA in certain charges, such as the lower end charges, around the issue of privacy and civil liberties.

We should not be dealing with the bill in the absence of a full review because we need to strike a balance. I am concerned that we are going ahead with these amendments at this time without fully considering where we properly strike that balance. The Supreme Court has made it very clear, as it did in Rogers and other decisions, that there is a fundamental issue here of invasion of the person's privacy, particularly when we take blood samples to be used for DNA purposes, but even when we take a swab of saliva or other bodily substances.

As we took evidence from other parts of the world, notably the U.K. and the United States, it was interesting to see how effective this can be as a tool for our police officers and our police agencies, both in terms of obtaining convictions and in terms of establishing innocence at early stages.

In some of the wrongful conviction cases we have had in Canada, the primary ability that we had to overturn those wrongful convictions came from the use of the DNA data bank that we had at that time and the use of that technology. In Canada we know particularly well that it can be used not just for convictions, but for assisting in clearing people, oftentimes, at a very early stage.

There is no question that we want to proceed with this. The real issue is the message that we need to send to the government that it has to stop doing the legislative process this way, that when we are looking at a problem that involves crime or the criminal justice system, we badly need to look at it in its full context. We need to use omnibus bills of legislation in this area much more often.

Every time I get on my feet to speak to a new bill I have repeatedly said that we badly need to have a complete revamping of our Criminal Code and other bills, such as our drug legislation. We have needed that for probably 20 years. Some sections in the Criminal Code are completely contradictory and are, in a large number of cases, confusing. It is much too long and there is a great of duplication.

I cannot help but point out that one of the groups that could have assisted us with that was the Law Commission. It was one of the duties we could have assigned it in preparing what would have been a draft policy paper on how the code needed to be revamped.

This allows me to get in a pitch for the need to have the government overturn that decision and reinstate the Law Commission so it can take this responsibility on. It is clear that the government does not have the ability or even the inclination to do it. Therefore, we can assign it to somebody else and the job, hopefully, will get done in a reasonable period of time.

In summation, we, as a party, are supporting, in principle, the bill going to committee. I have certain reservations, both around the retroactivity and privacy and charter issues. I believe those can be resolved relatively easily at the committee. Hopefully, we can look forward to a time when the government gets its head wrapped around the reality of the need for omnibus legislation in our criminal justice system.

[An Act to amend Certain Acts in relation to DNA Identification, October 3rd, 2006]

Mr. Speaker, I will apologize in advance if the minister addressed this point in his opening comments, but I came in a few minutes late.

Bill C-18 makes provision for retroactive gathering of DNA samples from individuals who have been accused and convicted and are currently serving sentences. They would be quite lengthy sentences because the individuals would still be in custody. For people who have been convicted of those offences the bill would allow for a sample to be taken from them now, when it would not have allowed it under the existing law.

Does the minister know how many convicted individuals are still incarcerated who would be subject to the changes that he is proposing? Is it the intent of the government that samples would be taken from every single one of those individuals?