Serge Ménard

[Canada Evidence Act, October 26th, 2007]

moved that Bill C-426, An Act to amend the Canada Evidence Act (protection of journalistic sources and search warrants), be read the second time and referred to a committee.

Mr. Speaker, I believe this is the second time that I have the honour of addressing the Chair regarding this bill. It is because of the parliamentary recess and prorogation that I have an additional hour of debate. However, I do feel the need to summarize what I said when the bill was introduced for the first time. Following this new process, many people may think, when they read Hansard, that this legislation is being debated for the first time. So, this is an opportunity for me to respond to a few questions, and even to some criticism that I have heard since the introduction of this bill.

It is true that I have been interested in this issue for a least some 30 years, perhaps even longer—since 1968, in fact. I remember that, at the time—this was before the Charter—we were hoping for legislation to deal with what this bill is addressing. The Charter allowed us to make some progress, but not enough. I find it deplorable that the journalistic practice that I want to protect with this legislation has not been better protected here, even though it has been protected to some extent by the Supreme Court of Canada. The fact is that a very large number of countries in the world, which abide by the same principle of press freedom, have passed laws to ensure such protection.

It is important to first understand this: I am not asking that privilege be bestowed upon journalists. What I am asking for is what the bill would establish: protection for these individuals who we have to recognize have the courage to expose scandals, instances of misappropriation or fraud, and who might face reprisals, should their identity be revealed. The risks they face can run high, depending on the organizations they go after, for example when there is fraud within major organizations.

We are talking about a journalistic practice that has developed over the past 50 years and which is generally recognized as a good thing in our societies. In fact, these individuals who become aware of situations where funds are misappropriated take this information to a journalist. In return, the journalist offers confidentiality, promising never to disclose their name without their consent. That journalistic activity is what this bill seeks to protect.

Usually, journalists look into the matter brought to their attention. They are guided in their investigation by this confidential source, but do not reveal the scandal until the facts can be independently confirmed and they believe it is in the public interest to make the misappropriation known.

The first part of the legislation would enshrine this journalistic practice whereby a journalist may promise his sources that they will remain anonymous for as long as they see fit or fear reprisals.

I also want to protect the practice of journalism. I might add that journalists should not be regarded as auxiliary police, as Supreme Court judges have pointed out in R. v. Lessard.

There are therefore five major provisions in this bill. The first one provides for the protection of journalistic sources, as set out in subclauses 3 to 6, the first two subclauses dealing with definitions and application respectively. As for subclause 7, it provides for something special: lesser but nevertheless very significant protection for unpublished journalistic material.

The objective here is that journalists not be perceived by the public as aiding the police. Usually out of laziness, the police want to give journalists information that they themselves have decided not to release. This is especially true in the case of demonstrations or strikes that turn bad.

The third part refers to issuing search warrants, the conditions for such warrants and conducting the search. Finally, subclause 11 provides a simple way of publishing information under the Canada Evidence Act. It seems to me that there is no need to require someone to appear. A publication is a publication. All someone would have to do to prove that something has been published is produce the publication.

As with any right or duty we want to grant or any value we want to protect, we have to think about other values that may conflict with those we want to protect. Certainly, nearly all the members of this House recognize that the journalistic practice of protecting confidential sources has made it possible to shed light on serious misdoings.

History is filled with such cases, the most famous being Watergate, the Enron scandal and even the sponsorship scandal. In my opinion, confidential sources will likely be increasingly necessary and common as companies secretly try to circumvent environmental protection rules, for example. A journalist would need to be pointed in the right direction in such a case. Here again, journalists will always have to base what they write on evidence they have obtained independently, or else pay damages in case of libel. Their papers will have to pay as well, which is why newspapers are fairly cautious in using this journalistic practice. Our intent is not to create a licence to commit hidden libel.

Since we are talking about a social value and not a privilege given to a certain category of people, the bill provides that judges themselves may raise the issue if they see that there is a problem of a confidential source. Judges may—I am not saying they must—raise the issue and ask the lawyers for their opinion. In this way, judges can protect the source against a negligent journalist who promised to protect a source but did not take steps to do so or no longer objects to the source's identity being revealed. Because the bill aims to protect the source, judges may raise this issue on their own initiative.

This tool is well defined in clause 5. A judge can weigh the values that may lead to contradictory decisions.

I was asked what judge this refers to. If we understand the section well, it means the judge before whom the journalist testifies or a judge who is asked to order the journalist to disclose their sources. This can mean a number of different types of judges who preside over criminal or civil courts, or even a federal court, as is currently the case. The judge could nonetheless order this disclosure, but only if the judge considers it to be in the public interest or if the following conditions are met.

The person has done everything in their power to discover the source of the information and the disclosure is in the public interest, having regard to the outcome of the litigation—that which is at stake—the freedom of information, and the impact of the journalist’s testimony on the source. Obviously, they will assess whether the source did indeed tell the truth or not and whether they committed a crime or not. It is still quite possible to have cases on this issue.

As far as clause 7 is concerned, perhaps because it is short, some people did not exactly understand the significance of it. This is the third part of the legislation I am proposing.The purpose of this clause is to protect a journalist's information, namely unused footage for television. Journalists must not be perceived as auxiliary police, as an easy place to go to for evidence of wrongdoing during a demonstration, for example. That was the context of most of the cases I dealt with in my career as a pro bono legal advisor.

The courts have been very clear about their reasons for accepting such a thing. For example, Justice La Forest, in Canadian Broadcasting Corp. v. Lessard, said:

Freedom of the press is vital to a free society and comprises the right to disseminate news, information and beliefs. The gathering of information could in many circumstances be seriously inhibited, if government had too ready access to information in the hands of the media. The press should not be turned into an investigative arm of the police. Thus, the fear that the police can easily gain access to a reporter's notes could well hamper the ability of the press to gather information.

Clause 7 seeks to protect that freedom. It sets out the exceptional situations in which it might apply.

The rest of the bill, except for the last subsection, deals with search warrants. I have basically summarized existing case law, which is much clearer on this issue than on the first one my bill addresses. I have explained all of this in detail before, and people can review the record.

I also want to point out that this principle has been recognized in most European countries. It has been recognized in 32 of the United States through legislation and in 18 others through case law. There is one major exception in the United States: the principle is not recognized in federal legislation, but it is widely recognized elsewhere.

In Sweden, the principle was considered so important that it was enshrined in the Swedish constitution. England does not have laws to protect journalists, but the European Court of Human Rights overturned the conviction of a journalist who refused to reveal a source he had promised to keep anonymous.

It is clear that this journalistic practice is widely recognized in the civilized world. The principle is recognized in Canada, but I think that it now makes sense to enshrine it in law to simplify things and to guide the people involved, such as police officers, journalists and justices of the peace who issue warrants.

The courts will decide whether this complies with the charter or not. The charter recognizes basic rights, but in a society like ours, people have much more than basic rights. It makes sense to define those rights in relation to the charter, of course, but sometimes we need to go beyond the charter. Parliament must step up to the plate and must not leave the toughest problems to the judges.

[Tackling Violent Crime Act, October 26th, 2007]

It is now 108.

[Resumption of debate on Address in Reply, October 18th, 2007]

Mr. Speaker, the minister knows that we share his objective of reducing crime rates. However, although we agree with some of the solutions he would like to propose, we do not agree with all of them. Like the minister, we believe that offenders who repeatedly commit serious crimes deserve harsher sentences. I noted that the proposed minimums are less harsh than what the courts normally impose.

I would like to know if the minister does indeed have a study on appeal court decisions concerning offenders who repeatedly commit serious crimes and on the sentences upheld by the appeal courts. We know that, every day across Canada, thousands of judges hand down thousands of decisions. It is quite possible that some of these decisions are very poorly reported in the media, which gives the public a false impression of our judges' decisions. In any case, even if some judges make mistakes, we have appeal courts to reverse those decisions.

Does the minister have a study that proves that appeal courts are not imposing the minimum sentences they would like to impose on offenders who repeatedly commit serious crimes? We oppose minimum sentences because, for several reasons, minimum sentences have never successfully reduced crime rates nor have they prevented crime. What they do is force judges, in exceptional circumstances, after they have examined all the relevant factors, to hand down decisions that go against their conscience.

Thus, before we force judges to impose such sentences, it would be worthwhile to determine, with certainty, if the appeal courts are upholding sentences that are not harsh enough. If trial judges are not imposing these sentences, the next step, in my opinion, should not be Parliament; it should be the appeal process.

[Resumption of debate on Address in Reply, October 17th, 2007]

Mr. Speaker, I would like to know the opinion of the member who just spoke. First, I am sure he realizes that we share many reasons to vote against the throne speech. Thus, I would like to know if we totally agree about one of the elements of the speech, that is the federal spending power. I still have difficulty finding that in the British North America Act. However, others before us read it that way and this power is now probably accepted by many Canadian provinces.

You will recognize that as a province Quebec has always been the most protective of its jurisdictions. There is no need to elaborate on the reasons why this is so.

I wonder if the hon. member shares my point of view on the limits to the federal spending power. I think that each time a majority of provinces agree to have the federal government spend in a provincial area of jurisdiction, Quebec should be offered full and unconditional financial compensation.

[Criminal Code, June 19th, 2007]

Mr. Speaker, I think that is one of the positive effects of registration. When people register something, they feel responsible for it. They are more likely to follow the instructions they are given during their courses: keep guns locked up and keep ammunition in a separate location. Before letting their children use the gun or enrolling them in a course, registered gun owners will take precautions and so on. They will ensure that the firearm registered in their name is always in a safe place. They will take care of their firearm just as they take care of their car. They will not let other people use it. And when the time comes to get rid of the gun, people will transfer the registration so that they are no longer responsible for the it.

The people here are elected representatives, so they must be accountable. They do not need this kind of system to make them accountable. However, we have to think of people elsewhere, in general. They will take care of a registered item. They will not abandon it. They will not get rid of it without following the right process.

The government could easily improve the system so that it costs less. It could get gunsmiths involved. There are not very many of them in Canada, perhaps a few hundred at most. They know firearms. They could register their guns so that there would be fewer errors. They could even do it for free. It is not very complicated. They can describe the firearm. A buyer would have to go to the gunsmith, who would register the firearm under the new owner's name. The new owner might even turn out to be a hunting client, so it would be advantageous, and the firearm would be—

[Criminal Code, June 19th, 2007]

Mr. Speaker, I thank the hon. member for the question. He is right, I should have addressed this.

There is more or less unanimous consent in the sector. Of course, there are some exceptions, and one member mentioned them earlier. But, on the face of it, more than 95% of representatives from police forces are in favour of the registry, including everyone from the chiefs of police to simple constables. Tony Cannavino, president of the Canadian Police Association, wants to see the registry maintained.

Not only is there nearly unanimous consent among police officers, police forces and provincial ministers—which is important because criminal law is enforced at the provincial level—but there is also unanimous consent among people who take care of the victims, people who work on suicide prevention and among other care givers. Psychiatrists also tell us how important it can be.

Generally speaking, those who deal with the problems created by firearms agree almost unanimously that control is a positive thing and that it must be maintained.

[Criminal Code, June 19th, 2007]

Mr. Speaker, we have to talk about distinct societies because I assure you that in Quebec, when a judge issues an order for someone to turn over their guns, someone makes sure it happens. The police officer in charge of the investigation ensures that the guns are turned over to him and, generally speaking, he checked beforehand in the gun registry whether the person owned rifles or handguns. That is why representatives of the Fraternité des policiers et policières de Montréal came to see us. They gave us the example of a case where a woman did not know how many guns her husband owned. The police checked the information in the registry, saw how many guns were registered, went to the individual's home and did not leave until they found all his guns.

I practised criminal law for years and I can assure you that when judges issue a condition on bail for firearms to be turned over, they talk to the police to find out how this order will be applied. Furthermore, the judges give a deadline and ask the police to file a report, at least to the crown prosecutor.

In my opinion—and you will surely agree—this is a very bad reason to amend legislation that can provide good results. It does not provide good results because, in some provinces, police officers do not have the means to see the work through.

[Criminal Code, June 19th, 2007]

Mr. Speaker, it is strange that we should find ourselves ending the session with an issue that we have talked about here so much for so long, an issue that is very emotional.

There is a definite intensity among those opposed to long gun registration. I am not exactly sure why that is, but I have certainly met my share of people who are fascinated with guns and who think that they are pretty great even though they are not.

Guns are good at just one thing: killing. People use them to kill animals, among other things. Police officers, people who transport large sums of money and people whose lives may be in danger because they protect very valuable goods carry handguns not only to protect themselves, but also to injure or kill others.

Because this is a very emotional subject, people tend to go to extremes. I would not want to fall into that trap. Personally, I think that gun control is the best way to prevent crime. It is also a way to prevent the most dangerous crimes—those that can result in death or serious injury. I think that we can start with a number of premises with which we all agree. Firearms are dangerous. Only responsible people should be allowed to have them. To the extent possible, nobody wants bad guys to have guns, and nobody wants it to be easy for criminals to get them, but we know that is impossible. There will probably always be some criminals who can find a way around the controls we put in place.

We must not become discouraged because it is impossible to implement controls to ensure that criminals cannot get guns. We can still achieve results. We cannot abolish guns entirely, but we can reduce their numbers. That is why it makes sense to look elsewhere in the world to see if other countries and other legislators have gone through what we are going through.

I think that the majority of civilized countries whose homicide rates are similar to ours also have comparable incarceration rates. But there is one—our neighbour—that has an extremely high incarceration rate. It is six times higher than ours and three, four, five or even ten times higher than the incarceration rates of some Scandinavian countries. Does its high incarceration rate get results when it comes to homicides? Not at all. On the contrary, it has the highest homicide rate in the world. So putting more people in prison and leaving more guns in circulation is not the best way to go. We also tend to register dangerous objects that were not created for killing, but that can be a danger. We register vehicles, large and small. We even register snowmobiles and scooters.

I wondered why we register automobiles. Some think that it is so the government can collect fees. If the government really wanted to make money off drivers, the easiest and cheapest solution would be to increase the tax on gas. It is true that the government may use this as a source of funding. In Quebec, when people register vehicles, the government collects an insurance premium that compensates motor vehicle accident victims. However, I think we started registering vehicles because they can hurt people.

People who had injured someone and who had probably been negligent tended to leave the scene if the car could not be traced. Thus, it became mandatory to display licences on automobiles.

At present, we have a somewhat ridiculous situation where duck hunters object to registering their guns that kill, but they get into a boat that has a registration number. When they hunt in the winter, they travel by registered snowmobile, but they absolutely do not want to register their rifles. What is more dangerous, a snowmobile or a rifle? Do they own the boat or the rifle?

In addition, I sometimes believe that the Conservatives are not as mean as they would have us believe. They recognize that these guns are not used solely for sport, as long guns are. However, handguns—guns that can be used with only one hand—should continue to be registered. And they have been since 1934, which allows us to compare our experience with that of our neighbours to the south.

Everyone knows that weapons circulate very freely in the U.S. Yet, those who commit crimes with weapons are for the most part punished very severely. What is the result? The homicide rate in the United States is three times higher than in Canada.

People will say that it is criminals who kill and so forth. At some point, I would like to have the definition of a criminal. The Conservatives talk about them as though they are people who have chosen to lead a criminal life. But they are not the only ones who kill.

People kill for all sorts of reasons. They kill out of passion, revenge or jealousy. Very often individuals who do not really have a criminal past are found guilty of murder. Some have a criminal past and others do not. Easy access to weapons, the availability of weapons, is an important factor in the increase in the homicide rate. The best evidence is that your chance of being a murder victim is three times higher in the United States. Unfortunately, women are five times more likely to be victims of murder in the United States, probably because of marital strife.

When we look at it, these numbers are rather substantial. Incarceration rates are six times higher in the United States and homicide rates are three times higher. Ask any educated, well-informed American who is not a member of the National Rifle Association why their homicide rate is so much higher than ours and they will tell you that it is due to the fact that firearms are so easy to acquire in that country.

I did not bring the statistics with me today, because I did not have a great deal of warning. However, I have been a part of this debate for quite some time and I often hear things that, in my opinion, prove the opposite of what they claim.

For instance, regarding the very high homicide rates in the United States, the Conservatives pointed out that, in nicer neighbourhoods, in comparable neighbourhoods, such as the Seattle suburbs and the Vancouver suburbs, the homicide rate is more or less the same. I agree and I am not surprised, because people who have similar levels of education are likely to have a similar sense of responsibility. But if we look at the United States as a whole, if comparable neighbourhoods with similar education levels have the same homicide rate, that means that in other areas of the United States, the homicide rate must be extremely high. Firearms are easily accessible in those places, too.

Based on the U.S. experience, everyone thinks there should be gun control. T what barrel length should be start controlling guns and at what length should we stop? People involved in crime want to use guns, but then some of the people who have a fascination with guns—something I have never really understood—are not criminals. Nonetheless, generally speaking, criminals have a fascination with guns for a criminal purpose. This includes all kinds of criminals, crooks for example. Criminals who have a fascination with guns want to perpetrate violence. The easier it is to get guns, the sooner they will start to use them. Those are the general conclusions we draw from the difference between us and the Americans.

I have always wondered why people would buy a rifle and saw off the barrel. The reason is simple: they want to hide it. It is easier to carry a rifle that is inconspicuous when one wants to rob a bank. That is why they saw off the barrel. By doing so, they are cutting off the difference in price between a handgun and a rifle.

Criminals were sawing off shotguns—so much so that a specific offence was created for this—because they were having a hard time getting revolvers. Revolvers and handguns were registered. Accordingly, the sale of these weapons was better controlled. It cost more to get them on the black market. And since hunting rifles were not controlled, a person could buy one, saw off the barrel and have a weapon that could be concealed until it was needed in a bank robbery. I fear we may end up back in that situation.

Then people bring up another statistic, which was actually used this afternoon to prove two opposing notions. Fewer than 2% of firearms related homicides in Canada are committed with registered firearms, which proves that the system does not work. That sounds strange to me, because I would tend to believe that it proves that the system does work. It proves that people who register their weapons are responsible. The primary purpose of the gun control program is to ensure that only responsible people have access to firearms and to encourage them to keep these items safely locked up, as they have been taught to do, and never to give in to the temptation to sell them to someone who does not have the right to buy them.

In the context of the gun control system, registration may not eliminate homicide altogether, but it is a vital tool to lower the homicide rate significantly.

There are cases where registration is essential to facilitating the application of the law, such as when a judge issues an order to surrender firearms. It is important for police officers to know which firearms to seize, which is easier when they are registered. The Montreal police brotherhood, which came to one of our press conferences, told us about a striking case. A woman was afraid of her husband, who had a lot of guns. She knew that he had guns, but she did not know how many. The marriage was going badly, and there was some danger of violence erupting, so they went to a judge. The judge issued an order to seize the firearms. As I recall, there were over 280 of them. The police did not leave until they had found all 280 registered weapons. As you can see, registration was vital in that case.

There are other cases where registration is useful.

These judges' orders are issued in cases where spousal abuse may be a concern and where someone has suicidal tendencies. The judge may issue an order. That is why all suicide prevention organizations are asking that the gun registry be maintained. If an order can be obtained, the authorities know what weapon to look for because the weapon is registered.

Of the 480 or so murders committed last year, two were committed with registered weapons by Kimveer Gill, in the Dawson College tragedy. Some claimed that the firearm registration system did not work because the weapon used was registered. The Dawson College tragedy could perhaps have been prevented. Just after this incident, another tragedy was averted and it received a great deal of publicity. It was obvious from his website that this individual should never have owned weapons. That was not known at first.

Some individuals found a site in Hudson and believing him to be dangerous, reported the author. The police looked into the matter and realized that the individual had registered firearms in his possession. The police went to court, obtained an order and retrieved the weapons. That is why I am proposing a reporting site.

In the case of Kimveer Gill, had this reporting site been operational and if, by chance, someone had seen Gill's site, the police could have determined if he had registered weapons. Thus the police could have retrieved the weapons and a tragedy would have been prevented. The registration of weapons can be useful.

This can produce results. It seems to me that the American experience, when compared to that of Canada and other countries, clearly shows that the fewer weapons are in circulation, the fewer homicides take place. The safest country in the world is Japan, where there is absolute gun control. Only police officers and registered hunters have the right to purchase firearms. The homicide rate is even lower than that of Canada.

This debate shows that there is some emotion attached to firearms, and that disturbs me. The rational attitude is obvious. People do not want the government to register things, but my goodness, so many things are registered. Cars, boats, bicycles, dogs and cats are all registered. What is so wrong about registering something that can kill?

Firearm registration is important because we do not want firearms to easily find their way into the hands of irresponsible people. Currently, when a person sells or gives a registered firearm to someone else, they must go to the registry office. We take care of our firearms and ensure that they are always under control.

I know that some people want to keep the provision that prohibits selling a firearm to someone without a permit. However, this is not verified. It can also happen through carelessness.

So this leaves the door open to organized crime. If a group member has a permit, he can purchase unregistered firearms and then supply his group. I will remind the House that there are no savings. What was expensive was the computer system.

We are keeping this computer system since the Conservatives want to keep it for handguns. A computer system that would register 30%, 40% or probably even 100% more transactions would be pretty much the same computer system. There are no savings, obviously. There was an amnesty, but no savings. This is why I think we should keep the gun registry.

[Criminal Code, June 19th, 2007]

Mr. Speaker, evidently the Bloc does not need to defend the gun registry as designed by the Liberals. It may perhaps result in mistakes, but it does exist nevertheless. If we are defending it, it is not because it is the creation of one political party or another, but rather because almost every police force in the country and those who look after victims of crime believe that a gun registry is a preventive measure that gives results.

The previous speaker spoke of the weaknesses of the registry and used that as an argument to abolish it in its entirety. I would like to ask him whether he believes that the amnesty granted over a year ago, allowing those who had not registered their firearms or who had to renew their registration to postpone the registration or renewal for a certain period of time, is a measure that will improve the effectiveness of the gun registry, or whether he believes that it will have the opposite effect and make the registry less reliable.

[Criminal Code, June 19th, 2007]

Mr. Speaker, clearly, it was the Liberals who created the firearms registry in its current form. Many mistakes were made in how it was handled. The hon. member who just spoke pointed out the unreliability—