Joe Comartin

[Divorce Act, June 5th, 2006]

Mr. Speaker, I acknowledge the work done by the member for Lethbridge in bringing forward this private member's bill, which raises an issue of some substantial concern. Although thankfully, looking at the circumstances, it is not one that arises all that often. By no means does this lessen the need for us to address the issue however.

When I first looked at the bill, I thought it would pose some problems, and I want to address those. I recognize that it will raise some significant issues as to some modifications to the bill. However, as my colleague from the Bloc has suggested, the bill is worthy of being adopted at second reading and sending to justice committee to see if modifications can be made to it to address my concerns.

I believe the intent of the bill is to mandate visitation between a child and a parent who is either critically ill or terminally ill. We have to assume it would be a factual situation where visitation has not taken place or there has been no access between the parent and the child, which could be for a number of reasons. My first concern about the bill is that child is not defined in terms of age. This could involve a child, as defined generally in our provincial statutes, as being under 18 years of age or under 16 years of age, depending on the provincial statute.

It has been quite clear for at least 40 or 50 years that our courts have either been reluctant or have absolutely refused to order a child 12 years or older to visit a parent when that child has refused to do so. That is a rough rule of thumb. It is highly unlikely that any court would be willing to order a child 16 to 18 years of age to visit with a parent even in circumstances involving a terminal illness. We have to recognize that the existing pattern in our jurisprudence is that a child roughly the age of 12, depending on their maturity, can decide if he or she is willing to visit a parent or not. This would have to be one of the changes made to the bill.

The other issue is the mandatory nature of the bill. The bill uses the term “that the court shall ensure”. I do not think there is any way of interpreting that other than the court would mandate, by way of a direct order, that the child be placed in the presence of the applicant parent for the purposes of exercising contact and access.

Members can appreciate factual circumstances where the history of the family is such that there has been abuse by the parent, who is applying for the visitation order, either of a physical or sexual nature and that there is an outstanding court order which denies that particular parent access to the child or children. In these circumstances, it is hard to imagine the court would be willing to order visitation.

There may be special circumstances where there could be some type of visitation, perhaps with the intervention of counsellors. It is the kind of thing we could review in committee and perhaps get some pertinent evidence from people in the social services field to see if we could develop some guidelines as to visitation under those kinds of historical circumstances.

My final point with regard to that kind of a fact situation is that our courts, for more than 50 years, in terms of jurisprudence developing and then it being incorporated into our statutes at both the federal and the provincial levels around visitation rights, have made it very clear that the rights are the rights of the child, not the rights of the parent and that the best interests of the child is to guide the courts in making a determination as to whether visitation would be allowed, ordered and even enforced.

It is a very tricky set of circumstances. I can think of a number of custody access cases I had in my own professional career, where all the other issues between the adults had been resolved, but there were ongoing battles almost on a weekly basis over visitation, the nature of it and even when it was permitted.

In a fact situation, where it has been originally denied and now the person who is terminally ill has come back and has asked for it, I can see significant complications. Those will need to be addressed.

I anticipate that the member for Lethbridge will be open enough to consider those concerns and take them into account, assuming the bill goes to committee and amendments are proposed to clarify the role of the court.

Then there is the whole issue of judicial discretion. We have been very clear in North American and throughout the Commonwealth on custody and access cases, and I think I can say this without exception, of never completely mandating our courts. This means the courts have to do this absolutely. We have guidelines in the statutes and we have precedent, but we have never, either from the appeal courts or from legislatures, had an absolute mandate as we developed our family law in this last half century.

There has been great change in how we have approached custody and access cases in that period of time. Throughout that entire period of time, throughout the Commonwealth, the United States and most western democracies, we have never required the court or a judge to make an order this way in these circumstances. It has never been a part of our history.

There will need to be some reasonable flexibility in any amendment that we make along these lines, which would preserve that history and discretion in our courts. We would have to tie that with some fairly clear guidelines as to when the court should take this into account. It should be a significant factor that the courts have to take into account, that is the illness or pending death of the applicant. This is a very serious consideration.

To then move to the next stage of making it absolutely mandatory, I would not be prepared to support that. I really think this legislature should not go down that road.

The member has obviously done some significant work on the bill. He feels quite passionately about it and appropriately so. Hopefully, if the bill gets to committee, we can make the necessary changes that will preserve the history of our jurisprudence on this type of issue and at the same time provide some additional protection for parents who find themselves in these circumstances.

[Criminal Code, May 31st, 2006]

Mr. Speaker, most members in the House will know that when it is a private member's bill, the NDP does not press anyone to vote other than according to their own beliefs. That of course will apply to this bill should it ever get back here for a final vote.

When I am faced with a bill like this, I always raise this issue because it is really important. The Liberal government would not do it and I do not see any particular inclination by the current Conservative government to do it either.

However, this country badly needs a total revamp of our Criminal Code. We probably needed it for the better part of 20 years. So when I see a bill like this that is dealing with a very minute part of the Criminal Code, I get on my soap box and push for that once again. We badly need to do it.

In the course of doing that this would be one of the sections under consideration, whether the penalty of five years for luring children is adequate and appropriate, whether it is in line with judicial decisions up to this point, and whether the charter is of any concern to increasing it from the 5 to 10 years as proposed.

This is a good example of why we need that omnibus bill because when we are looking at making a decision in this regard of doubling a penalty, as is being proposed in Bill C-277 by the member for Abbotsford, we would have to put that in the context of the entire Criminal Code. Certainly, when our courts look at this and we have heard this from other speakers, they look at proportionality.

The proportionality issue takes into account other offences of a similar nature. If we have a number of other offences where the penalty is still low, in the range of the five years or perhaps even less, then the reality is that the charter will kick in and our courts will have a tendency to strike this down as not being proportional.

Dealing specifically with this section and the crime itself, the justice committee spent a great deal of time dealing with the issue of child pornography in the last Parliament. As part of that, we looked at the crime of luring of young children and some of the evidence that came out was interesting. I want to say to the member for Abbotsford that we took extensive evidence about pedophilia and there is no way of classifying the luring offence other than as a crime of pedophilia.

One of the things that was very clear from the evidence which came from some of the highest trained psychologists and psychiatrists in this country who deal with chronic offenders in this area, and we also heard it from the police and the prosecutors, was the great difficulty of dealing with these individuals and that traditional concepts of deterrence and penalty had no meaning to them.

On one occasion they described an offence where there had been a fairly extensive investigation of three separate individuals at three different addresses. They broke into two of the addresses and apprehended the individuals, but one of them was able to get a warning off to the third one.

In spite of that warning, when they arrived at the third residence which was several hours later, the individual was still on the computer. He was so, as they put it “hard wired” in terms of his needs, if I can put it that way, that he would not shut the computer down. He did not flee. He simply stayed there and was apprehended.

That is the kind of deep psychiatric and psychological mental illness that we are dealing with. If we were to say, as my colleague from Abbotsford said, that we should double the penalty, it would not be a deterrent. The reality is that with this type of criminal there is no deterrent factor. We could make it 50 years or we could make it life, and it would still not make a difference.

What came out of the evidence that we took over that extended period of time, which was several months, was that the only successful way of dealing with this was, of course, through prevention. I know the member made a very good point about the computer program where people are, in effect, monitoring. That was first introduced by the Government of Manitoba. It has now been copied by three other provinces. In fact, Manitoba picked it up from England.

Specifically, it is a monitoring process. We are asking everybody who is on the Internet to, in effect, be part of the prevention system. If people identify a site, they can get it to the police immediately or, which happens rarely, if they can identify the individual children who are being targeted, they can pass that information to the police. It has been extremely successful in England, as it has been in Manitoba. It is just beginning to be effective in some of the other provinces that have implemented it.

I do not in any way want to demean the sincerity with which the member for Abbotsford approaches this problem and I am sure that every member in the House feels the same way. Our absolute first responsibility as members of Parliament and legislators is to protect our citizenry and, in particular, to protect those who are most vulnerable, our children.

If the government is really serious and if the member really wants to maximize the protection that we provide to children from these types of criminals, there is another route we can go. I have raised this a number of times in committee and several times in the House.

We have very sophisticated technology. I am being told that because of some of the work that I do in public security. We have some of the best in the world in terms of tracking people who use the Internet for criminal activities. That technology is being used now by Canada and by a number of its allies in fighting terrorism.

That same technology, which is available in this country and could be deployed in fighting this type of crime, whether it is child pornography or child luring over the Internet, is a great tool that we could be using with our police forces to fight this crime and to prevent it from ever happening.

If we were to talk to victims of crime, whether it be the parents or the children in this type of crime, and give them a choice between the crime never happening or sentencing the perpetrator to an extended period of jail time, they would always take the first one because they do not want to be victims. They do not want to have to live with the psychological scars that come from this type of crime in particular. If we could get the justice minister and the finance minister on side, plus our public security people, there is another methodology and we could be doing much more to intercept.

One of the interesting things we learned is that Bill Gates and his company have donated a substantial amount of money and services to begin to develop these types of tracking programs where in fact we can both intercept and track back to the source this type of communication.

The reality is that our security services have even better developed technology, much more effective technology both in identifying and tracking, so that we could get to the perpetrators before they get to their victims.

I have not decided whether I am going to support this bill or not, but I would urge the member to take into account some of my comments and press his colleagues in cabinet to consider spending money to develop a system for the purposes of fighting child pornography and child luring.

[Criminal Code, May 31st, 2006]

Mr. Speaker, I have no hesitation at all in praising my colleague for the intent behind his bill. However, as legislators, we have a responsibility to understand all the circumstances and facts on which we base amendments. That is a particularly onerous task on our part when we deal with the criminal justice system.

I appreciate some of the research he has done, particularly with the comparative jurisdictions in Australia, England and the United States. Has he done any research on what the experience has actually been in Canada? This section is a relatively new section to the code. For instance, are there any cases where judges have said that they would like to impose a more severe penalty than five years, but they cannot do it because of the existing subsection 172.1?

Similarly, what has been the experience in those other three jurisdictions? Have they come anywhere close to imposing sentences, whether it is 10, 12 or 15 years in the examples that he gave? My belief, from the limited research I have done, is that in the vast majority of cases it is the separate section of a summary conviction offence that is laid by the prosecutor and the police and no consideration is given to a sentence longer than two years.

[Judicial Compensation, May 31st, 2006]

Mr. Speaker, what we have from the minister's statement today is another reflection of the contempt that the government holds toward our judiciary and another chink in the wall of judicial independence in our country. We export our judicial independence as a model to the rest of the world. We are currently showing a number of countries our experience in judicial independence, and the government at the same time is undermining that judicial independence.

The Minister of Justice is trying to justify this conduct on the basis that his party won the last election, but I am sure Canadians did not vote for them to break down the role of our independent judiciary. I can assure the House this was not part of the mandate that came out of the last election.

I heard him also trying to justify this by saying the government had to make tough decisions. The tough decision here is really a very simple one, and that is to support the system as it is.

Historically, we have fought the issue of how we pay our judicial appointments in the provincial and federal courts. This has been dragging on for the better part of 20 years. We finally resolved it in 1999 by appointing, through legislation, an independent commission that would review the salaries of judges and their status. That has worked well in most cases.

The Supreme Court of Canada has made it very clear that the commission's report is to be adopted by the House unless there are extraordinary circumstances.

Today the minister is trying to justify extraordinary circumstances. First, he said that we had to look at our financial circumstances. These compensation packages would cover 2004-05. The federal government had surpluses of $10 billion to $12 billion in both of those years, yet the minister tries to justify that the government does not have the money. Try to sell that to a judge some time in the future, which is likely what will happen if we proceed with the legislation as recommended.

The second point the minister has tried to argue is that somehow the government did not take into account the fact that lawyers in private practice got paid differently in small communities as compared to those in large communities. The commission did take that into account. It looked at this very closely, and it is recorded right in the commission's report.

There is no justification for this legislation or for the position taken by the government other than a straight attack on our judiciary. It is unforgivable that the government would do it at this period of time in particular, given some of the statements made by the Prime Minister during the election, given some of the statements made by my colleague from Saskatchewan, which had such notoriety, and given some of the statements the Prime Minister made when he was in opposition.

We have to stop attacking the judiciary and treat them with the independence they are entitled to under our Constitution and in the way we should handle our judiciary in general.

[Elections Act, May 30th, 2006]

Mr. Speaker, it is too little and way too late.

Last year, Ed Broadbent put forward a solid process to bring about voting change in Canada. The Conservative Party supported it at that time. Now is the time to move on it.

Will the Prime Minister commit today to create a citizens assembly to study real electoral reform in this country?

[Elections Act, May 30th, 2006]

Mr. Speaker, the initiatives the government is presenting on electoral reform will do nothing to fix the outdated voting system in this country. Meddling with the ineffective Senate is not going to cut it. We need to modernize the way Canadians elect their representatives. We need a form of proportional representation to ensure that every single vote cast is reflected in this chamber.

When will the Prime Minister table legislation to truly fix the voting system so that every vote counts equally in Canada?

[Personal Information, May 29th, 2006]

Mr. Speaker, the reality is that unless there is legislation passed specifically prohibiting this data from flowing out of this country into the United States, whether by an employer or any other source, that information has to be passed on. There are legal opinions from two of the major law firms in this country that have told the government that.

Will the government today commit to bring forward immediately legislation prohibiting that data from leaving this country to the United States?

[Personal Information, May 29th, 2006]

Mr. Speaker, the newspaper La Presse reports today that the American Patriot Act is once again threatening the privacy of not only thousands of Quebeckers, but also many other Canadians who work for Canadian subsidiaries of American companies.

Can the government promise these concerned Canadians that their personal information will be protected and that George Bush and the FBI will not have access to it?

[Criminal Code, May 29th, 2006]

Mr. Speaker, I thank my colleague from the Bloc for his question. He is right.

Quebec is a good province to look at from this perspective. Under the Parti Québécois and the Liberals, that province made conscious decisions with regard to preventing juvenile crime and when it did occur, to rehabilitate the juvenile as effectively as possible. Quebec did that more consciously than any other province. We were still using the young offenders law at that time, so I am going to say it was close to 30 years ago that that province started doing this.

We can see the pattern if we compare Ontario and Quebec, or one of the western provinces, and I will use Alberta because it is probably the most restrictive. The rates of juvenile offences in Quebec stayed at a significantly lower level than some of the other provinces, for example, Alberta.

The member is right. Quebec's approach was to look at the root causes of crime. Some first nations feel completely alienated from our mainstream society. Some visible minorities feel disenfranchised and disconnected. Some individuals are from poor, dysfunctional families. We need to address those problems.

Instead of telling the provinces that they are going to spend $200 million to $250 million a year more on incarcerating people, if we tell them that they are going to spend it on prevention programs for youth, we would get a much better bang for our buck.

[Criminal Code, May 29th, 2006]

Mr. Speaker, my house has been broken into on three different occasions over the last 15 years, so I do not need to be told by the parliamentary secretary how people feel as victims of crimes that are not an assault on the body. I understand what it is like to be a victim. I also understand how the system works.

If the crime is committed by a repeat offender that person is not going to be considered for conditional sentencing anyway because that repeat offender will be going down for longer than two years. That criminal will not even get through the initial screening. What the government is doing is allowing this section to be used in a scattered approach, depending on what a prosecutor wants to do in his or her area versus what is done in a neighbouring county or province. The federal government is responsible for criminal law. We need one pattern for the whole country, not mixed ones province by province or region by region.

This section leaves it open for abuse if we allow discretionary calls by prosecutors. Some will use the conditional sentencing quite extensively and others will try to avoid it. The ones who want to avoid it will simply lay the higher charges and get themselves out of the conditional sentencing provisions.

It comes back to using the tool effectively and as much as possible and recognizing that it not be used for serious violent offences. That is one of the things that really bothers me about the approach the government is taking to criminal law. It is running on anecdotes, on the odd case where a judge made a mistake. The government is trying to pass laws to take care of the few mistakes. If it does that, we are going to end up with many more ruined lives because more hardened criminals will come out of the system.

The United States has the highest prison population rate in a western democracy by far. It is six to seven times our prison population rate. The U.S. incarceration rate is running at about 700 per 100,000. Ours is at about 115 or 120 and most of western Europe is below 100. If it worked, the violent crime rate in the United States would be seven times lower than in western Europe and Canada. We all know that the violent crime rate in the United States is four to six times higher in spite of all that incarceration.

Incarceration is not the answer. We are trying to avoid recidivism. We are trying to rehabilitate and yes, we are trying to protect society. The greatest way to protect society is to make sure that the person who has committed one offence does not commit another one. Sending a person to prison is rarely the answer to guaranteeing that the person is not going to commit a crime again. My family and I would feel a lot safer if conditional sentencing was used rather than the alternative being proposed by the government.