Serge Ménard

[Criminal Code, December 8th, 2010]

Mr. Speaker, we have agreed with many of the bills introduced recently in the House.

The Minister of Justice is always saying that it is the opposition's fault that his bills take so long to pass. He is lying outright, and this is a case in point. Here is a bill meant to fill a gap identified by the Supreme Court of Canada in October 2006. I believe the Conservatives were in power in October 2006. It took them three years to draft a bill to respond to that Supreme Court ruling, as its title indicates.

The government introduced an initial bill in October 2009. Then it prorogued Parliament, thereby killing the bill. So the government had to introduce it again. When the House resumed, the government did not introduce the bill right away. There is not one iota of difference between the current Bill C-30 and Bill C-55, which died on the order paper. I did not count the days like my colleague who spoke before me, but the government did not introduce the bill currently before us until May 31, 2010.

And yet the minister is always complaining that we delay his bills, that the opposition is preventing him from doing his work again. Just 15 minutes ago, he was in front of the cameras blaming the opposition for once again impeding the progress of his bills. This example is concrete proof that his incompetence and idleness are to blame. At his pace, he would have a hard time winning a race with a bunch of snails.

He introduced his bill on May 31, 2010, and this is the first time he has invited us to debate it in order to refer it to committee. No one can say that the opposition is to blame for the fact that the gap in the Criminal Code identified by the Supreme Court still has not been addressed over four years later.

This government is also in the habit of blaming judges. Not only does it blame them, but it speaks about them insultingly. I will demonstrate that in just a moment, but first, let us see what the Supreme Court decided.

The Supreme Court did not decide that a right should be taken away, contrary to what the parliamentary secretary said in his press releases. The court found that this right never existed and that it was important that it be established through legislation, not by police or the courts. It is up to Parliament.

Clearly, if conditions can be imposed prohibiting offenders from using certain substances, there needs to be some means of monitoring those conditions, even if it is not through testing. That is obvious. It is so obvious that the legislators at the time did not see it and did not provide for the obligation to provide samples.

That is what the Supreme Court found in 2006. Paragraph 732.1(3)(c), which allows a condition to be imposed that prohibits the use of certain substances, defines a criminal offence. But simply creating an offence does not result in enforcement powers. This is common sense and should have been obvious to the legislators at the time. Even though it is clear that the authority to require samples of a bodily substance and the resulting analyses would help enforce a condition prohibiting the use of certain substances imposed under paragraph 732.1(3)(c), that is not enough to conclude that this authority is implied.

That seems to me to be quite a sensible legal ruling. The court made the following suggestion:

Where Parliament authorizes the collection of bodily samples, it uses clear language and sets out standards and safeguards for collecting these samples.

The court is saying that things should not be done haphazardly.

Parliament has not provided a scheme under s. 732.1(3) for collecting bodily samples and such a scheme cannot be judicially enacted.

The fact that it cannot be judicially enacted is why the government introduced a 16-page bill. The law cannot go messing with people's bodies as it sees fit. There must be assurances that analyses will be carried out medically and correctly. But it is not up to the court to enact that. It is up to Parliament. That is what Parliament was told in 2006. But it was not until 2009 that the Conservatives introduced their first bill. Then they let it die with prorogation. They reintroduced it on May 31, 2010. Then they did not raise the subject again until now. Here we are debating it in December 2010, more than four years after the Supreme Court of Canada's comments.

This government is in the habit of demonstrating its scorn for the Canadian judicial system in all kinds of ways. I would like to read from the minister's press release about Bill C-30. In the last paragraph on the first page, it says:

The amendments being introduced today are an effective response to the Supreme Court of Canada's decision that made it impossible for law enforcement officials to fully monitor individuals under court order prohibiting them from using drugs or alcohol.

That is not what the court did. The court did not make it impossible. It was not provided for in the law. And the court decided that because it was not provided for, it was not the court's job to determine, in 16 pages, how the samples could be taken to ensure their accuracy or that conclusions could be drawn that might deprive people of their freedom.

We are so proud to be a country that respects rights and freedoms. This is part of how we respect people's freedom. Before putting them in jail on technical evidence, we have to ensure that the evidence is solid.

The Minister of Justice also began criticizing us for another reason recently. He laughed at us because we do not accept his alternative titles. In this case, I can tell him that we will agree with his title, which is “Response to the Supreme Court of Canada Decision in R. v. Shoker Act”. Now that is how to objectively describe, without using propaganda, the bill that is currently before us.

This is one case where he did not fall back into his bad habits. Unfortunately, not all bill titles are like this. The best example is the Minister of Justice's new trick, which involves inserting his campaign propaganda into the legislation. Since he is likely somewhat unsure of the value of the legislation, he starts by spewing his propaganda, which is an insult to the judiciary. One example is Bill C-16, Ending House Arrest for Property and other Serious Crimes by Serious and Violent Offenders.

Has there ever been a ruling in Canada ordering house arrest for serious and violent offenders? If so, it is contrary to the current legislation, which states: “[if the court] is satisfied that the service of the sentence in the community would not endanger the safety of the community...”

Thus, the first condition for house arrest is that it does not endanger the safety of the community.

That should go without saying. If we stop detaining violent and dangerous offenders and release them, that will jeopardize public safety. The minister never said that that was happening anywhere in Canada. And if this was the case with one out of the thousands and tens of thousands—if not more; I think that the number of sentences handed down every year in Canada is in the six figures—, there is recourse and it can be taken to the Court of Appeal. The case can be appealed on the basis that the offender is violent and dangerous.

It is a ruse, a trap to eliminate more cases in which house arrest could be used. The Conservatives do not like house arrest. This happens in almost every country in Europe. It is extremely useful with an offender who has committed a first offence. By imposing some conditions, we can turn them away from crime. We can force them to take courses and support a family, we can impose a curfew, monitor him and impose an addiction treatment if he has a substance abuse problem.

Keep the person at home. It is a lot less expensive and much more effective than sending him to do time, when he will likely lose his job if he has one, interrupt his studies and meet other criminals who will teach him tricks to commit other crimes. We know that prison is not a very good school. In civilized countries, prison is reserved for truly dangerous people. Here, we are following the model used in the United States, a country with the highest incarceration rate in the world: between 730 and 760 incarcerations per 100,000 inhabitants. Our rate is 120 per 100,000. I do not know how much the Conservatives want to increase that number by, but at 120, we are average. Out of 155 countries, we rank about 50th. Our rate is even higher than that of almost every European country, except one country in the United Kingdom.

The bill will take this tool away from judges in first offence cases. When I was public safety minister in Quebec, I was told—and this was consistent with my experience after more than 25 years practising criminal law—that up to 90% of people who are brought before the court are brought there only once in their life. It is the other 10% that causes us major problems.

In any event, we have already said we agree that the Supreme Court was right to shed light on this anomaly. We can prohibit someone from consuming certain substances without giving the court the power to order a technical and scientific verification that the person is complying with these conditions. This is a lot like drinking and driving, a more common crime, and one that is even committed by people who do not have a criminal record or other criminal behaviour.

When I first started pleading cases, it was quite funny to listen to those cases because police officers had observed, in the accused, the symptoms that the Supreme Court had defined as symptoms of drunkenness in a case in 1926: eyes glazed over, slurred speech, staggering gait. The police would say that the accused was staggering and his speech was slurred and that was how they established whether a person was drunk or not. It was rather ridiculous and that is why we were finally able to get objective evidence with the breathalyzer. There has been a dramatic drop since this objective measure has been in place.

In this case, I think this legislation was necessary. Personally, I think six months should have been plenty of time to draft such a bill following the Supreme Court ruling. It should not take three years to do so. The minister, who is supposedly thinking of the potential victims, could have sped things up a little. Fortunately, he has no problem tooting his own horn. He concluded his November 30 news release by saying that the government, “is standing up for victims of crime, and putting the rights of law-abiding citizens ahead of the rights of criminals”.

I do not know why he said that. It must have been out of habit. In this case, the provision was suggested by the Supreme Court, which he does not like. I do not see how this puts the rights of law-abiding citizens up against the rights of criminals. In any case, nearly all sentences that come with probation orders do in fact include abstinence conditions.

I do not believe that all of these people are criminals. Indeed, just because someone commits a single offence or has a drug problem at one time in his life does not make him a criminal for the rest of his days. It seems perfectly reasonable to me that if an abstinence condition is imposed because the offender has a drug problem, there should be some scientific way to verify his compliance. If it were obvious—

[Criminal Code, December 8th, 2010]

Madam Speaker, I would like to ask a question of the hon. member, for whom I have the greatest respect.

Surely she noticed that I asked the Parliamentary Secretary to the Minister of Justice a question regarding the fact that the bill does not contain any clauses to specify that, when a sample of bodily fluids is taken, two should be taken and one of them should be given to the person from whom the sample was taken. The law stipulates that the person can provide evidence to the contrary but how can this be done if the person does not have a sample? I would therefore like to know whether the hon. member's party is open to considering this aspect of the law.

I am astounded that the Conservative government is expecting the people from whom the samples are taken to put all their trust in the machinery of government, when the Conservatives themselves are so suspicious of that machinery. These people are given the theoretical right to dispute the analysis but are not given the means to actually do so. Does the hon. member think that making such an amendment to the bill would improve it?

[Criminal Code, December 8th, 2010]

Mr. Speaker, I would like to ask the government member whether the bill is complete this time. Are there provisions in this bill to ensure that a sample will be given to the person from whom the sample was taken, so that they can take it to an analyst they trust to verify whether the government or the police properly carried out the analyses?

When we wanted to be able to force someone to provide an alcohol breath sample when there are reasonable grounds to believe that they are driving while impaired, we made provisions for this. So it is nothing new. Is that provision in Bill C-30?

[Protecting Children from Online Sexual Exploitation Act, November 24th, 2010]

Madam Speaker, I must once again remind my fellow member, who sits on the Standing Committee on Justice and Human Rights and whom I respect a great deal despite the fact that we do not belong to the same political party, that practically the only offence identified in the bill is when a service provider is informed that it is hosting a child pornography website and that service provider fails to report the site to the organization that will be created and also fails to preserve the data. We are talking about 21 days. It should be fairly quick to determine whether or not the ISP has preserved the data. The bill has to set out a few offences, but they are not serious ones. This makes it possible for private citizens to work with service providers who we hope are responsible enough to report this type of situation to the police. That is about it. As for the rest, there is still the obligation of confidentiality and immunity from prosecution.

The purpose of the bill is to set out the method by which action can be taken against websites. The bill is not designed to punish those who set up child pornography websites. If it were, the limitation period would certainly need to be much longer.

[Protecting Children from Online Sexual Exploitation Act, November 24th, 2010]

Madam Speaker, Internet service providers are required to report to the police sites reported to them by people who discover said sites when surfing the Internet. If the people who report these sites see that they are still up after a certain period of time, they could go to the police and inform them that they already reported the site to the ISP. The police can take them at their word and go after the Internet service provider. This legislation does not create many requirements. It does not require Internet service providers to do everything they can not to host child pornography sites.

Employees of Internet service providers who discover child pornography sites in course of their work are also required to report such sites to the police. Evidence would probably be produced by employees who report sites to their employer, the Internet service provider. The employees might later realize that the employer did nothing about it.

I thought my colleague was going to ask me whether this is consistent with the Charter or not. He did not mention it, but in my opinion, there is no problem in that respect. Requirements not to do something exist in a number of laws, provincial laws in any case. I know that in Quebec, there is a requirement to report a situation in which a child is in danger to the head of youth protection services. Exceptional measures are taken when children are involved.

[Protecting Children from Online Sexual Exploitation Act, November 24th, 2010]

Madam Speaker, first, I recognize that this is a good bill. It is not outstanding, but it is useful despite its limitations. It was about time that it was introduced. It comes after a similar bill which, if I am not mistaken, was introduced by the Liberals in a previous Parliament. At any rate, consideration of that bill was stopped because of prorogation in 2009.

The government deserves much criticism for not having moved this good bill forward, considering that all members agreed with its provisions. However, before criticizing the government, I will outline what this bill does.

Bill C-22 is entitled “An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service.” Again, as in so many instances before, it is important to remind those who will read this piece of legislation that it does not require Internet service providers to ensure even minimal monitoring of the sites they host to determine whether they contain juvenile pornography.

Let us take a look at the duties under this bill. It allows ordinary citizens who stumble across a child pornography site immediately notify their Internet service provider. It is then incumbent upon the provider to relay all pertinent information to an agency, which remains to be determined although the government assures us it will be. Will this be done in 2020? We cannot tell. At the rate at which the government is moving on implementing its legislation, it could take a very long time.

That is basically what is required of the Internet service provider. If I happen upon a child pornography site, I notify my Internet service provider. It is not asking much of the provider to notify the police. It has the duty to do so, and to provide any pertinent information to the agency that will eventually be designated.

The service provider must then preserve the information on the site for 21 days. That time was discussed in committee. In fact, it is ample time for the police to do what they need to do. We understand that someone has to determine whether the site actually contains child pornography, where the site is, and where it migrated from. A member who spoke before me talked about this. It is apparently very easy for people who are familiar with computer technology to have these kinds of sites that wander from one provider to another, from a Canadian ISP to an American ISP, from an American ISP to a Japanese ISP, and come back via a European ISP. There is some complexity involved.

The first duty of a service provider that receives information from a member of the public is to preserve, report and notify. Once it has preserved the information for 21 days, it then has an obligation to destroy the data from that Internet service.

Second, obviously, the bill provides that the information must be retained confidentially. That goes without saying. The service provider will not be alerted that it is about to be eliminated, we don’t know exactly when, and that it may get caught in the next few days. The information must therefore remain confidential.

This bill is very short. I have addressed about four clauses out of 12. To understand the next clauses, we have to know that it is currently illegal to view a pedophile or child pornography website. However, if you have viewed one and have said so, have reported it to your Internet service provider, you will have immunity; as well, no civil proceeding can be commenced against you. I imagine that it would be the service provider that would want to do that. So this bill is stating the obvious. I hope that no action would be brought against someone because they reported an Internet site, which they in fact have no obligation to report, contrary to what this bill implies at the outset. There can be no proceedings brought. Let us suppose that a mistake has been made and it was not genuinely child pornography—I do not know how such mistakes can be made, but let us suppose. We can rest easy; the provider cannot bring proceedings against us because we have immunity.

That is essentially all there is in this bill. It is not long, but it is important to have it to supplement various measures that have been taken elsewhere, in particular the creation of specialized police squads and the development of various techniques that use addresses to identify the people who design these sites, so that proceedings can be brought against them. As we often realize, we may discover that they are continuing to make sites like these, and that in doing so they are using children. Thus they are committing assault and may even be forcibly confining children who are victims. This bill is very useful, and it is another weapon in the police arsenal for combatting a crime that is unfortunately too easy to commit.

That being said, I cannot get over seeing the government boast about this bill. First, we heard the ineffable Parliamentary Secretary to the Minister of Justice with his ineffable knowledge of the issues. He said it was a source of pride and glory for Canada, at the Palermo meeting, when everyone voted unanimously. Well, we came last in the class. Not only were we last in the class, but there were already at least four provinces ahead of the Canadian government: Alberta, Manitoba, Nova Scotia and Ontario. Those are the provinces that founded Cybertip.ca, the organization he was talking about. Maybe that will be the designated organization. That organization seems to be very valuable, but for the moment it has not yet been designated. Cybertip.ca seeks out child pornography sites. When it finds them, it reports them to the police. That organization was created by the provinces.

The member said again that we were the first in the world, that our ideas were received unanimously, and that we were applauded. Well, sometimes the last ones to get there are applauded. It was high time to get there, because we are already modelling it on similar legislation in the United States, Australia, South Africa, France, Belgium and most European countries.

So he demonstrated once again what this government worries about; it is always how well a bill can be used for demagoguery. This one, apparently, was not useful enough for the government to pay attention to it, so it left it hanging. It has been hanging for five years now. Yes, we are in a hurry to pass it. So instead of constantly accusing us of delaying its bills, the government should present us with the bills on which it knows all members are in agreement, and we will pass them quickly.

In its bills, however, it continues to try to force us onto the same path as the American Republicans to the south, when its party has the support of only a little more than a third of the population of Canada. I often hear the Minister of Justice boasting about his bills, saying that we will see how popular the Conservatives are, as compared to us, and things along that line, come the election. That is his only concern. With my age and experience and the evidence of what I have done in the past, I think I can venture to say, without the people in my riding lynching me, that the direction they want us to take has put the United States, our neighbours to the south, on the road to disaster. In a single generation, it has become the country that imprisons more people than anywhere else in the world: the American incarceration rate is the highest anywhere.

The policies that the Minister of Justice wants to adopt are always the same: he wants us to help him put as many people as possible in prison for as long as possible. That sums up virtually all of the bills he has presented us with. On top of that, he dresses most of his bills up with misleading titles.

There is one bill he still trying to get mileage out of today, namely the so-called anti-child trafficking bill. In fact, he did get some mileage, because all parties but the Bloc Québécois were spooked. Even the Senate was spooked. Yet, when we read this bill on child trafficking—which does not take long, a mere three minutes—nowhere are the words child trafficking to be found. Putting forward legislation on child trafficking that does not mention child trafficking—that takes some doing.

What is clear from reading the bill is that it actually deals with the exploitation of persons under the age of 18. Obviously, child trafficking is a form of exploitation of a category of children, namely minor children. But to punish any and all instances of exploitation of persons under the age of 18 with a five-year minimum sentence is a bit much. That is the kind of excess we are headed for.

Because we denounced that, he keeps saying that we are against protecting children and in favour of child trafficking. That is just not true. We are against child trafficking. At the same time, we are against painting all instances of exploitation of minors with the same brush.

In fact, the definition of exploitation of minors would apply specifically to the exploitation of seniors. In Quebec, there is a very smart and excellent ad campaign against the exploitation of seniors. The behaviour described and explained in the ad corresponds precisely to the definition found in this bill, which is not about child trafficking, but the exploitation of minors.

The Minister of Justice always has ulterior motives when he proposes something. He tries to see how many votes he can get for the Conservatives, how much he can annoy and scare the other parties by criticizing them, how he can show that he is tough on crime and how many more people he can put behind bars for even longer. That is what the Americans have done. We, however, are trying to provide the best ways to fight crime.

This is one way to fight crime, namely to allow people who end up inadvertently or deliberately finding child pornography—which they are not allowed to do because just looking at child pornography is an offence—to do something about it, report the material to their Internet service provider or to the police. If they report it to their Internet service provider, the latter is required to do something about it, follow procedures to notify the police, preserve evidence for a certain amount of time and shut down the website.

The federal government lagged behind the rest of the west in this area and it even lagged behind four provinces. It is high time we took action. I still have time left, but I have said enough. The sooner this bill is passed, the better.

[Protecting Children from Online Sexual Exploitation Act, November 24th, 2010]

Mr. Speaker, I would like to ask the parliamentary secretary where he got his information stating that we are the first country to have a law like this. I believe that the information we received from the Library of Parliament refers to similar laws in other countries, including the United States, that are far more thorough. As far as I know, there are also laws like this in nearly every western country and as far off as India.

Is there really an indication that we are the first to have this kind of law? Are there not already laws like this in most civilized countries?

[Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, November 16th, 2010]

Madam Speaker, in general, my colleague is correct. But in this particular instance, it is not a matter of sentencing; it is a matter of imposing consecutive ineligibility periods in cases of multiple murders.

Since 1967, experience has shown that juries take this into account. The government demonstrates a lack of trust, not only in our judiciary, but also in our juries, which are there to represent the public. These people are chosen randomly based on panels and voters lists. So they are very representative of the population and have an advantage over us as legislators. They hear a particular case, in which they can not only weigh the seriousness of multiple murders, but also consider other circumstances, such as the degree of complicity. This shows a lack of trust not only in our judiciary, but also in our juries.

[Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, November 16th, 2010]

Madam Speaker, I am convinced that the government has set its legislative agenda this way in order to score political points by presenting these bills. The government always tries to get us into trouble when we try to explain that the harsh sentences it proposes in a certain bill are justified in the most serious cases, but there are also less serious cases in which harsh sentences are less justified. That is especially true when the government includes minimum sentences. Minimum sentences have been calculated most of the time and when they were not, I indicated that here. Most of the time, minimum sentences are calculated for the most serious commission of offences. They should reread the aiding and abetting sections in the Criminal Code and they will see that those sections cover a lot of people.

The previous Liberal government had toyed with the idea of a complete overhaul of the Criminal Code. I am sorry that it never happened. The Criminal Code has become impossibly complex because of the way in which the laws are written. Without a background in law and in practising criminal law, no one can understand the proposed provisions.

Like the hon. member asking the question, I think the government is electioneering and trying to show that it is doing something, when in most cases it is doing nothing. This bill is a striking example of legislation that will not amount to much because these provisions are already being applied. The jury considers the circumstances of multiple murders and other cases. They know the difference between Mom Boucher and that poor mother who failed in her suicide attempt.

[Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, November 16th, 2010]

Mr. Speaker, I was not here yesterday. I do not come to the House on Mondays. I am at the House from Tuesday to Friday and others are here from Monday to Thursday.

The reason we object to certain titles, if the minister must know, is that they are propaganda, if not lies.

I will give a clear example of a dishonest title. I think it is referred to as the “Ending house arrest for...serious and violent offenders act”. However, the current legislation applies only to sentences of more than two years. I submit to the minister that when individuals are violent and dangerous, they are sentenced more than two years. Furthermore, under the current legislation, a judge's primary consideration in sentencing a person to house arrest is that the individual is not a threat to public safety. Need I convince the minister that violent and dangerous people threaten public safety and that, accordingly, if judges were to use these provisions to release violent and dangerous offenders, they would be disregarding the legislation as it currently exists?

The minister has the nerve to claim that Canadian judges are violating the law and releasing violent and dangerous offenders who threaten public safety. It is an insult to the judiciary and an absolute lie.

Many of the government's titles are nothing but propaganda. No, I will not tell the voters that we are focusing all our time on titles, but I will certainly tell them that your titles are dishonest.