JUST Committee Meeting

37th PARLIAMENT, 1st SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Tuesday, June 11, 2002

Á

1105

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Professor Gerald L. Gall (Individual Presentation)

Á

1110

Á

1115

Á

1120

The Vice-Chair (Mr. John McKay)

Prof. Gerald Gall

Mr. McKay

Ms. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association)

Á

1125

Ms. Jennifer Cooper (Past-Chair, National Family Law Section, Canadian Bar Association)

Á

1130

The Vice-Chair (Mr. John McKay)

Ms. Jennifer Cooper

Á

1135

Mr. Vic Toews

Ms. Jennifer Cooper

Mr. Vic Toews

Ms. Jennifer Cooper

The Vice-Chair (Mr. John McKay)

Á

1140

The Vice-Chair (Mr. John McKay)

Prof. Gerald Gall

The Vice-Chair (Mr. John McKay)

Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC)

Á

1145

Ms. Jennifer Cooper

Á

1150

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Ms. Jennifer Cooper

Mr. Derek Lee

Ms. Jennifer Cooper

Mr. Derek Lee

Prof. Gerald Gall

Mr. Derek Lee

Ms. Jennifer Cooper

Mr. Derek Lee

Prof. Gerald Gall

Á

1155

Mr. Derek Lee

Ms. Jennifer Cooper

Mr. Derek Lee

The Vice-Chair (Mr. John McKay)

Mr. Robert Lanctôt

The Vice-Chair (Mr. John McKay)

Ms. Jennifer Cooper

Mr. Bob Mills

Â

1200

Ms. Jennifer Cooper

Mr. Bob Mills

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Ms. Jennifer Cooper

Â

1205

The Vice-Chair (Mr. John McKay)

Prof. Gerald Gall

The Vice-Chair (Mr. John McKay)

Mr. Robert Lanctôt

The Vice-Chair (Mr. John McKay)

Ms. Jennifer Cooper

Â

1210

Mr. Robert Lanctôt

The Vice-Chair (Mr. John McKay)

Mr. Irwin Cotler (Mount Royal, Lib.)

Ms. Jennifer Cooper

Prof. Gerald Gall

Mr. Irwin Cotler

Prof. Gerald Gall

The Vice-Chair (Mr. John McKay)

Mr. Peter MacKay

Â

1215

Ms. Jennifer Cooper

Mr. Peter MacKay

Ms. Jennifer Cooper

Mr. Peter MacKay

Ms. Jennifer Cooper

Mr. Peter MacKay

The Vice-Chair (Mr. John McKay)

Mr. Derek Lee

Ms. Jennifer Cooper

Mr. Derek Lee

Â

1220

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

The Vice-Chair (Mr. John McKay)

Prof. Gerald Gall

Mr. Vic Toews

Prof. Gerald Gall

Â

1225

The Vice-Chair (Mr. John McKay)

Ms. Jennifer Cooper

The Vice-Chair (Mr. John McKay)

Ms. Jennifer Cooper

The Vice-Chair (Mr. John McKay)

Mr. Robert Lanctôt

Â

1230

The Vice-Chair (Mr. John McKay)

Mr. Peter MacKay

Ms. Jennifer Cooper

Prof. Gerald Gall

Ms. Jennifer Cooper

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

The Vice-Chair (Mr. John McKay)

Mr. Philip Rosen (Committee Researcher)

Â

1235

Mr. Bob Mills

The Vice-Chair (Mr. John McKay)

Mr. Bob Mills

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

The Vice-Chair (Mr. John McKay)

Mr. Robert Lanctôt

The Vice-Chair (Mr. John McKay)

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CANADA

Standing Committee on Justice and Human Rights

---

NUMBER 098

l

1st SESSION

l

37th PARLIAMENT

---

EVIDENCE

Tuesday, June 11, 2002

[Recorded by Electronic Apparatus]

Á  (1105)  

[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): We'll get started. This is the 98th meeting. If we reach 100, do we get paid overtime?

    This is a meeting on Bill C-400, an act to amend the Divorce Act, limits on rights of child access by sex offenders.

    We have this morning three witnesses: Jennifer Cooper, past chair of the national family law section, Canadian Bar Association; Tamra Thomson, director, legislation and law reform, CBA; and Professor Gall from the Faculty of Law, University of Alberta. Welcome to a wet Tuesday in Ottawa. Professor Gall has asked to go first. I'm assuming that is not an issue with the other witnesses.

    I'm assuming all witnesses know the procedure here. Usually it's a 10-minute presentation, and then the next set of witnesses goes for another 10-minute presentation. Then we go down the opposition side with seven minutes for each party's questioning, and then over to the government side for seven minutes. Then we have a three-minute round. We'll try to keep it within the bounds of time, just as the Supreme Court does, although we are somewhat more casual about time.

    Professor Gall.

    Professor Gerald L. Gall (Individual Presentation): Thank you, Mr. Chairman. I think my presentation will go just about ten minutes, but it might go over by one or two minutes, so please forgive me if it does.

    Excuse me for not having submitted a written text. The circumstances were such that I agreed to testify today as I was heading out to the airport for a weekend trip to Ottawa, so I haven't had a great deal of preparation opportunity.

    I would like to begin by saying I know members have had a summary of legal opinions. I have seen that summary and I want to clarify that the remarks attributed to me do not entirely conform to my views. Instead, my testimony today will better reflect them. I think we are all sympathetic to the plight Lisa Dillman faced. I was asked, notwithstanding that, to raise the legal red flags, the potential areas of challenge or attack on the proposed legislation, and that is what I will be doing. Also, I will be dividing the various areas into two categories. The first category will be the less problematic concerns, the second will be the more serious or more problematic concerns.

    The first of the less problematic concerns is section 2 of the charter, freedom of association. Lisa's law would deny association of the incarcerated non-custodial parent with a child. Usually, section 2 of the charter, in connection with freedom of association, deals with labour and union activities and with political and religious associations, but not in fact, from the case law, with familial associations. As a result, I wouldn't worry about section 2.

    In particular, I would like to refer to a case called Regina v. M.S., a 1996 B.C. Court of Appeal case that confirms a 1989 Ontario Court of Appeal case in which Justice Tarnopolsky stated:

Our constitutional concerns have not been with assemblies within families or associations between family members. Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families.

He goes on to say:

The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes. If it has any purpose, it is that of loving or being loved, of comforting and protecting, or being comforted and protected.

As a result, I would say the freedom of association protection would not be applicable here. Any infringement of freedom of association would not apply to familial associations.

    Another ground that I would not be particularly concerned with is section 15 of the charter. From discussing this briefly with my colleagues here, I think there is a possibility that section 15, the equality rights section, might invite a challenge on the basis of marital status, but I'm of the view that it would be probably a long shot. Other than marital status, there is no ground in section 15 or analogous to section 15 that would invite attack, although it's not such a crazy possibility when you consider that the Canadian Human Rights Act prohibits discrimination on the basis of a criminal conviction for which a pardon has been given. We do have criminal-related grounds of anti-discrimination, but I wouldn't be overly concerned.

    Section 12--and this is the last of my non-problematic concerns--deals with cruel and unusual treatment or punishment. Would it be an additional penalty to deny access to the non-custodial father who was incarcerated? If it is considered a further deprivation of liberty, it would be caught--and I'll mention this in a moment--under section 7 of the charter rather than under section 12, so I would not be concerned with that as a section 12 concern.

Á  (1110)  

    There is one other possibility with respect to cruel and unusual treatment or punishment. This law could have an impact on the parole eligibility of the incarcerated person. One of the things a parole board looks for, in fact, the whole underlying philosophy of parole, is gradual integration into the community. Gradual integration into the community is accomplished through the establishment of community groups. This law is effectively cutting off routes, for legitimate reasons, I grant you, so it could potentially have a negative impact on parole.

    Next is the problematic ground of section 7. Section 7, of course, is the right to life, liberty, and security of the person and the right not to be deprived thereof, except in accordance with principles of fundamental justice. I would say first that the denial of access, the automatic suspension of access, is a form of additional penalty. Even if you don't regard it as a form of additional penalty, it is an additional deprivation of liberty. There are all kinds of deprivations of liberty. They relate to conditions of incarceration and the circumstances surrounding incarceration. One could be in a so-called country club jail, and one could be in segregation in a federal penitentiary. The deprivation of liberty is certainly qualitatively different from one circumstance to the other. So the automatic denial of access without a hearing could constitute an additional deprivation of liberty. However, deprivations of liberty are tolerated, provided they are brought about in accordance with the principles of fundamental justice. Are these deprivations accomplished through the principles of fundamental justice? This is the really problematic area.

    There are two concerns as to why the principles of fundamental justice might be violated. Again, I'm raising the red flags. The first concern has to do with the denial of access to our court system. Of course, a non-custodial incarcerated parent can always go to court to get an order or have an order ready, but the order is of no effect, it's suspended. So in effect, it's the denial of access to the court.

Á  (1115)  

     Are there cases that say a denial of access to the court constitutes a breach of the principles of fundamental justice? The closest thing I have is a 1989 case called Budge arising in the Court of Appeal in Alberta. It said that the existence of a worker's compensation scheme that denies an employee the opportunity to sue his employer, and is therefore a denial of the right to go to court, is an infringement of section 7. The Budge case involved a potential denial of access to the courts because an employee cannot sue his employer under a workers' compensation scheme. The court said, however, that even though denying access to the court could be an infringement of section 7, that case was lost because section 7 didn't protect economic rights. Obviously, suing your employer is the advancement of an economic right.

    Of course, access to children is not an economic right either, so a denial of it could potentially be a violation of principles of fundamental justice. In all the literature, when they talk about access to the courts, they refer really to publication bans and not actual physical access to the courts. Only the Budge case refers to physical access.

    The greater concern that might be a violation of principles of fundamental justice is the over-breadth of the legislation. A 1994 decision of the Supreme Court of Canada, Regina v. Heywood, established a new doctrine of over-breadth, where a breach of the principles of fundamental justice occurs if a loss is considered over-broad in its deprivation of liberty, security, etc. That case involved a restriction under the Criminal Code of a person convicted of certain crimes with respect to children from hanging around pools and public parks. There is an order under the Criminal Code where there could be a restriction of the accused's access to these public areas where children might be. Justice Corey said a restriction on liberty for the purpose of protecting the safety of children--that's pretty much on point here--would not be a breach of fundamental justice, but he held that a law that restricted liberty more than was necessary to accomplish its purpose would be a breach of fundamental justice by reason of over-breadth. He said in that case there were three kinds of parameters or factors that could lead to over-breadth. First, the order may have been too broad geographically. Second, its duration may have been too long, and there was a possibility the suspension of access could have continued while the person was on parole--that's really not very clear. Third--and this is more important--the class of persons to whom it applied was too wide, because some of the offenders to whom it applied would not be a continuing danger to children. In other words, they could be rehabilitated.

    It's possible, although I guess a lot of us don't believe it, that our prisons rehabilitate people, and a person could have a beneficial effect from a term of incarceration if he underwent the appropriate treatment. Therefore, the law would still apply to him during his term of incarceration. That's one possibility of being over-broad.

    Second, it might also be over-broad because some of the crimes listed in proposed paragraph 16(9.1)(b) of the law really have nothing to do with children, or potentially have nothing to do with children. I'm referring to, for example, subparagraphs (b)(i), (b)(ii), and (b)(iv). As I've said, it's possible for a term of imprisonment to include a term of parole as well, because one is on parole until the expiration of one's term of imprisonment.

Á  (1120)  

    The Vice-Chair (Mr. John McKay): You have one minute left.

    Prof. Gerald Gall: I have my three most important points yet to come.

    The Vice-Chair (Mr. John McKay): You can work those into the questions. I'm at 12 minutes. Shall we say three minutes?

    Prof. Gerald Gall: Thank you.

    The first of these other points relates to the International Convention on the Rights of the Child. Canada is a ratified signatory to that convention, and all our laws must conform to it. Article 9 of the international convention states that:

States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.

It contemplates a hearing to determine what's in the best interest of the child.

    Second, although we talk about the charter, don't forget the Canadian Bill of Rights. The 1960 Canadian Bill of Rights is still in effect, and subsection 2(e) says that unless a law says it shall operate notwithstanding the Canadian Bill of Rights, no law of Canada shall be construed or applied so as to “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. That would apply to Lisa's law, as well as the international convention.

    There's a lot more I want to say, but I would just end this by telling you my proposal for change. My proposal is that perhaps there should be, in a circumstance such as this, an automatic suspension for a thirty-day period, during which period the parties can go to court and determine whether access should continue for the incarcerated person. It guarantees the right of a hearing, it allows a suspension on the basis of an emergency situation, but it ensures that the courts are not excluded, and perhaps the onus is even on the person who is incarcerated. That's always a possibility as well.

    I have more, Mr. Chairman, but thank you for your indulgence.

    The Vice-Chair (Mr. John McKay): Thank you.

    We'll now have the Canadian Bar Association. Ms. Thomson.

    Ms. Tamra Thomson (Director, Legislation and Law Reform, Canadian Bar Association): Thank you, Mr. Chair.

    We're very pleased to appear before the committee today on Bill C-400. The Canadian Bar Association is a national association comprising more than 37,000 members across the country, all jurists with various expertise in law, and you have in front of you the letter prepared by the national family law section and the national criminal law section on Bill C-400. In making our comments about the bill today and in preparing the letter to the committee, we have in mind the overall objectives of the Canadian Bar Association, which are to work towards improvement of the law and improvement in the administration of justice.

    I am going to turn now to my colleague Jennifer Cooper, a lawyer from Winnipeg and the past chair of the national family law section, to make further comments.

Á  (1125)  

    Ms. Jennifer Cooper (Past-Chair, National Family Law Section, Canadian Bar Association): Thank you, Tamra.

    Our comments today will be looking at the bill from primarily a family law perspective and, to some degree also, a criminal law perspective. Professor Gall has spoken to you about some of the constitutional aspects. I won't be dealing with those today, but you've heard those concerns.

    I'd like to begin by telling you a bit about what the Divorce Act already says, and my apologies to those of you who are family lawyers and know all this stuff by heart. For those who don't, I think it's important for us to ask ourselves what the Divorce Act already says, and then look at whether the amendment is necessary.

    The Divorce Act, in section 16, says a court can make an order of access by one parent to a child. In subsection (6) it says the court can make that order subject to such terms, conditions, or restrictions as it thinks fit and just. So you need to know that already the court has wide-ranging power and discretion to make any kinds of conditions it thinks necessary to protect a child in making that access order.

    In subsection (8) the legislation tells the court that it shall take into consideration only the best interests of the child of the marriage in making that determination. So access orders are not about punishing one of the parents for their misbehaviour; the access order is to focus firmly on what this little child needs, not what their parent deserves to have or not have. It's about the child.

    In subsection (9) the court is directed to only look at conduct of the parent to the extent that it's relevant to their ability to act as a parent. So we don't look at spousal misconduct any longer, we don't look at whether one of the parents has run off with a new partner, we only consider if what they have done, as a matter of misconduct, bears upon their ability to be a parent. Certainly, if a parent is guilty of physically or sexually abusing a particular child, that is a kind of conduct that bears upon their ability to act as a parent. So a court is directed already to look at that under the conduct section.

    In subsection (10) the act says that when the court makes this order, it should give effect to the principle that the child should have as much contact with each parent as is in their best interests. That puts into legislation the notion that generally speaking, children need to have contact with both of their parents.

    The case that was the impetus for this bill was, I understand, a variation case, and you will see that in section 17 of the Divorce Act. When the court makes a variation, a change, that is, to an existing order, they must look at the same principles exactly. They must consider only the best interests of the child, and they look at conduct to the extent that it bears upon the ability of that person to be a parent.

    So already we have, we say, a Divorce Act that can and does take into consideration all the relevant factors that are necessary to make an order in the best interests of a child. And the letter Ms. Thomson has directed you to, dated June 7, begins by saying it is our view, despite the obvious sympathy in this case--and we are sympathetic to Ms. Dillman--that our Divorce Act, as it presently stands, is certainly flexible enough and appropriate to make orders that are in the best interests of children and ought not to be changed by this bill.

    We have four particular points from the letter that I'm going to highlight that suggest amendments. We make these suggestions by first stating that we don't think it should be amended, we think it should simply not be passed. However, if you choose to go forward with it, we wish to identify four points.

    First, the bill suggests that this automatic termination of access will occur for people who are incarcerated, serving a term of imprisonment, and we wish to alert you to the fact that people who are on parole may be captured by this--Professor Gall just mentioned that--and it seems to me it's not intended to cast that wide a net. As a result, that wording might need to be considered and narrowed.

    Second, with respect to the types of offences that are affected, again--and I know this discussion took place on the first day as well--it casts a very wide net. We say it is too wide a net. If you're going to have this kind of automatic provision, it ought not to apply, as Professor Gall also mentioned, to situations in which the children weren't involved in any way in the offence. Where the offence may have taken place against adult women, it may have nothing to do with that actual child.

Á  (1130)  

    With respect to the issue of child victims, we are concerned that proposed paragraph 16(9.1)(a) refers to provisions of which the child was the victim. We note that subsection 722(4) of the Criminal Code defines victim very broadly--that's for the purposes of victim impact statements--as a person who has suffered “physical or emotional loss as a result of the commission of the offence”. It's very easy to see that a child whose parent has committed an offence could be, under that broad definition, considered to be a victim; the offence might have nothing to do with them in any personal way, but they were victimized because they lost their father or their mother as a result.

    Finally, under sentencing principles--and actually, Professor Gall dealt with some of these, and these are criminal law concerns--it does, in effect, apply an additional penalty to this offender by saying, in addition to your period of incarceration and whatever other conditions are attached, you're also going to lose contact with your children.

    We want to highlight for you, if you can think about it for a moment, because every day in this country hundreds, perhaps thousands, of children are visiting their parents in prison, that what we're saying is that offenders who are guilty of this list of offences and who are divorced would have an automatic termination of access to their children. It's not going to apply to parents who are separated from common-law relationships, it won't apply to parents who are in intact relationships, it will only apply to offenders who happen to be in a divorce. They're the only ones who will lose the automatic right to see their children.

    We also want to note that we feel this will undermine the rationale for conditional sentences, because, as we know, now a term of imprisonment can be served conditionally in the community. It seems this bill will also affect all those offenders who have been judged to be not so much of a safety risk that they cannot serve their term of imprisonment in the community. Those people also would lose automatically under this bill the right, even though they're in the community, to have access to their children.

    Those are the specific points, but we want to leave you with the overall notion that we don't believe the act requires any amendment in any way.

    Thank you.

    The Vice-Chair (Mr. John McKay): Thank you.

    Now we'll have a seven-minute round of questioning. Mr. Toews.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you for your presentations. The committee appreciates your work and effort in coming out here.

    Certainly, the case that gave rise to this particular bill was one in which the public perceived that the law failed, that there was an injustice done to the children and to the spouse who had custody here. Perhaps it's an egregious set of circumstances that has prompted this bill, but it certainly has raised many concerns among Canadians about whether or not the best interest of this particular child was being served. I note your comments, I note your presentations, I note the constitutional concerns.

    One point that was just made by Ms. Cooper related to the issue of spouse. Perhaps I didn't follow that. Did you indicate that the prohibition would only apply to a divorced spouse, as opposed to any other spouse?

    Ms. Jennifer Cooper: It applies to offenders who have been in a married relationship and are divorced or are divorcing, so that the Divorce Act applies to them. Divorce is a federal responsibility, as you well know, because you're a lawyer, and separation and common-law relationships are under provincial jurisdiction. So the Divorce Act only applies if the offender was married and if he or she is in the middle of a divorce or has divorced and we're looking at a variation. If that offender is only separated, none of the provinces have this kind of provision. The provinces have best interest tests, just as our Divorce Act has right now. No province, to my knowledge, is proposing that they will change their legislation. So the offender who is merely separating or the offender who is in a common-law relationship would not have this automatic termination of access to their children, not to mention an offender who's in an intact relationship. They can continue to have their children come to visit them in these circumstances.

Á  (1135)  

    Mr. Vic Toews: So you're saying that because the constitutional jurisdiction of the federal Parliament is limited to this divorce context, as opposed to separation or marriages that are intact, if we are to proceed, we should do so under another act, perhaps the Criminal Code of Canada, and simply put as part of the sentencing that no one shall have access to their children in this concern. It certainly gets over the constitutional hurdle, though it may create other concerns. You're saying that because of the limitation of the Divorce Act and the inequity it would cause in regard to other relationships, maybe we should just amend the Criminal Code so that once a sentence of this nature has been entered, it would prohibit any judge from allowing custody, whether it's a separation situation, an intact marriage, or a divorce situation. Whether that's a wise thing to do is another issue.

    Ms. Jennifer Cooper: We don't think it's a wise thing to do. It certainly would deal with the problem of this inequity in application, but we wish to emphasize that we don't think there should ever be an automatic termination. There will be cases where termination is appropriate, and right now the judge has the power to order that. We don't need to make a law to allow him or her to do that.

    Mr. Vic Toews: I appreciate your saying that it's not the wise thing to do.

    We represent the public interest here, we don't represent only lawyers. We try to do our best. This case has attracted the attention of the public, and I think the feeling is that it is a horrible case. This amounted to a revictimization of this child by the legal system. I note all of your concerns, but how do we protect children in these particular cases from a horrible situation?

    Ms. Jennifer Cooper: Although the Canadian Bar Association represents lawyers, one must bear in mind that the people who are our clients are custodial mothers, non-custodial mothers, access fathers, and offenders. We prosecute people. The people who are our members don't have a particular bias or point of view. All these people are our clients in one way or another. I think we can speak, therefore, from a perspective that doesn't take into account only one viewpoint. We've had the opportunity to consider the wider range. We want to say that as sympathetic as this case may be--and I have to say I'm not aware of the particular facts of this case for certain, as there hasn't been a published decision about them--if in fact the judge made an error, which is possible, because judges do make errors, we say that's a poor reason to change the law for everyone. In fact, changing the law will create, we fear, injustices in many other cases where it's not appropriate to have automatic termination.

    The Vice-Chair (Mr. John McKay): Monsieur Lanctôt.

[Translation]

    Mr. Robert Lanctôt (Châteauguay, BQ): Thank you.

    Your comments are almost the same as the ones I made last week. With all respect for the Member for Red Deer, obviously the court is always trying to identify what is in the child's best interests. I fully agree with you: everything is already in the Divorce Act.

    I too had mentioned--and you come back to that--that it would even create a constitutional issue in relation with Section 15, because there would be some discrimination between married and unmarried people and between those who are using the Divorce Act and those who are under provincial jurisdiction. As to Section 15, it is not only a possibility; there would really be a discrimination problem. I am sure of that. All the elements are there.

    Last week or two weeks ago, when the Member for Red Deer came to explain this to us, we learned that they had not even tried to appeal. This is one case but unfortunately, there will be other cases where such problems will arise, where a court decision may be wrong or bad. In this specific case, they didn't even try to appeal. True, this could be because that person did not have enough money or resources, but to go to say that we should change and even criminalize a situation where…

    I have worked for 13 years as a specialized lawyer, among other things in matrimonial law. All the possibilities have been such that this is a situation of fact. Each case is a special circumstance. There can be cases where the right to see the child before the court and in other places has to be refused. It can be done. They have the power to do it. Judges render lots of decisions like this. But they also have other judgments where the child's best interests prevail and not the offender's. We signed the International Convention on the Rights of the Child. We are in favour of that. We must protect what is in the child's best interests.

    With respect, dear colleagues, this is something that would completely change the situation not only for one family, but for several families among which several for whom it is working well and is even beneficial. You shouldn't forget that expert witnesses come before the court. Access is not granted or denied just like this, at random; there are psychologists and psychiatrists who come and testify before the court.

    I am just making these comments because I fully agree with them. I just want to underline that in my opinion, Section 15 is not only a possibility; it is a big problem in the sense that we would go back in time and there would be illegitimate and legitimate children again where this has disappeared for a long time. We would create a totally incredible situation. I don't want to add anything because you said about everything I mentioned last week.

    The Bloc Québécois is obviously going to vote against this Bill. I cannot even say how we could improve it. It cannot be improved. There is a situation of law. We can protect the children. We can protect the children's interests with what we already have.

Á  (1140)  

[English]

    The Vice-Chair (Mr. John McKay): Does any of the witnesses wish to respond?

    Prof. Gerald Gall: I agree that section 15 is an issue. I was raising the various issues in ascending order of what I viewed as more problematic. I don't mean to diminish the importance of the section 15 issue.

    I think the issue of over-breadth is a far more serious one. As to the suggestion Mr. Toews made about putting it in the Criminal Code and expanding it, I think that would again invite serious concerns with over-breadth. In my opinion, it wouldn't pass the test of fundamental justice in section 7 if it were in the Criminal Code.

    The Vice-Chair (Mr. John McKay): Mr. MacKay.

    Mr. Peter MacKay (Pictou—Antigonish—Guysborough, PC): Thank you, Mr. Chair. I want to thank the witnesses as well for their very informed and detailed commentary.

    I agree in particular with the statement that's contained in the text and the sentiment that seems to be coming through here, that the last thing we want to do is make this worse for children, or for parents, for that matter. I think I've heard the drafter of the bill say he realizes it's not a simple issue, it's not a cookie-cutter approach that will work here. and I agree. And yet that case highlighted, I think, a shortcoming, or at least--again without getting into a scathing commentary of the judge's decision or discretion here--that there has to be a way to address this issue of children being exposed to more harm and put through this trauma because of a judge's order. You're right to say there can be appeals and there are ways to deal with the issue on a case-by-case basis, but the problem is that harm can be done. To take a child into a prison situation, I would suggest, has long-term, lasting implications for that child.

    I direct your attention to page 2 of your report, where you say, in the third paragraph, “The Divorce Act permits courts to prohibit access”--clearly it does, and you've gone through those sections--“including the instances listed in Bill C-400, where it is in the best interests of the child to do so.” The rhetorical question that keeps jumping out at me is, where would it be in the best interests of a child to take them into a prison setting when a parent--and we can't always assume it would be a male--would have been convicted of an offence such as this? Again, I expect we'll hear from Mr. Mills, but that list he has proposed as part of this legislation is not carved in stone. I think he's indicated quite openly a willingness to draft this legislation in such a way that it would be charter-proof and fitting and appropriate.

    So I am asking you if you can outline for us a situation where it would be in the best interests of a child to take them into the setting, knowing that a parent has been convicted of that type of offence. I think it is fairly limited in its scope currently, and perhaps it needs to be limited further. Further to that, is there a way you can contemplate that a directive might be appropriate, rather than setting a parameter in which a judge shall consider, with reference to the fact that there has been a conviction rendered?

Á  (1145)  

    Ms. Jennifer Cooper: I would like to begin by saying, on your comment that to take a child into a prison has long-term consequences, right now in Canada each day hundreds, perhaps thousands, of children are being taken into prisons to see their parents. In fact, we have prisons that are designed with waiting rooms. Some have toys. We have the idea that this in itself ought not to stop a relationship from happening. We even believe, for rehabilitation of an offender, they need to have family connections, and we emphasize that it is a good thing that they maintain a relationship with children, not just from the child's point of view, but from the offender's. So that in itself isn't what we're looking at, and we're not worried either. The prison setting is about the most highly supervised setting you can have. So we've not worried about reoffending right in that context. We're worried about the psychological implications. We know it's important, as a general principle, and it's enshrined in our Divorce Act, that children have contact with their parents. That doesn't mean to say in every single case, but you're asking where a case might be where contact should continue.

    As to some of the factors that a court will look at, and no doubt would in this case, remember that these are factors built up in the case law, because our Divorce Act has no list of factors. It's not as if we already have a list, so let's add a few things to it. We've relied on our judges and judge-made law to make this list. A factor that is often on the list is the age and wishes of the child. A 15-year-old boy who wants to see his father is more likely to be listened to than someone much younger. The degree of involvement previously with the child is regularly looked at, the pre-existing relationship. If it's a good one, if there's a lot of love and connection between the two, that might be something much more worth preserving. In the particular circumstances of an incarceration, obviously, you would look at what the offence was. This list of offences is very wide-ranging. It can involve touching the breast of an adult woman in a bar. It might have nothing to do with this person's home life or what kind of parent they are. It's very broad.

    It seems to me that a court would look at the level of remorse the individual was expressing and the degree to which they were prepared to take responsibility for what they had done. You would look at whether or not they had made any efforts at rehabilitation. If you had an offender who had taken positive steps, as our prison system is designed to help rehabilitate people, who had taken programming, who had been in therapy, who believed they had worked through these issues, that might be a better candidate for having a relationship with their children than someone who is a chronic person who plans to reoffend the minute they get out. These are factors you would look at. You would look at their treatment.

    You might get a psychological report. It was pointed out by Mr. Lanctôt, and it's true, that our family courts have psychologists doing assessments, especially on these difficult cases. So you might get a psychological report about what the child's needs were. Perhaps you would have a case where a child, if they were the direct victim, is in their own therapy, has worked through some of these issues, and now wishes the opportunity to begin to have contact with a parent for their own therapeutic purposes, and that would be prevented by this bill.

    So I guess what we're saying is, we think it should not be automatic, because if it is, in the cases where it was a good idea, it would not be able to occur. So now we have this particular problem fixed and those new problems made in other cases.

Á  (1150)  

    The Vice-Chair (Mr. John McKay): Mr. Lee.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

    I'm not going to hide my views here. I don't like the bill. I have great sympathy for the fact sequence that gave rise to the bill. It's called Lisa's law, and that's its problem. It was written just for Lisa, nobody else, except people just in Lisa's position. Would you agree that with the law as drafted, if you had an offender convicted of dangerous driving, where one of his children was victimized in the car accident and someone else was killed, a life sentence, the offender doesn't get to see his child after a divorce for the rest of his or her life? Is that one outcome here?

    Ms. Jennifer Cooper: That's right. I would say so.

    Mr. Derek Lee: So you don't get to see your kid for life. That's one problem.

    I regard the list as unthinking. I'm just walking through the scenarios here. The law was written for Lisa, and it didn't take into account a whole lot of other scenarios. It doesn't take into account, as you read it, non-divorce separations.

    Ms. Jennifer Cooper: Correct.

    Mr. Derek Lee: They're left out. It doesn't appear to deal with interim divorce proceedings, where joint custody continues. The way I read the law, it just wouldn't deal with a case where you didn't have an access order. If you had joint custody continue without an access order, it wouldn't apply, as I read it.

    Prof. Gerald Gall: It wouldn't apply insofar as you couldn't get a variation of that order.

    Mr. Derek Lee: There wouldn't be an access order to hang your hat on.

    Ms. Jennifer Cooper: Yes. That it's only directed at access orders is your point. That's true.

    Mr. Derek Lee: It doesn't appear to deal fairly with a scenario where both parents have been convicted of one of these sexual offences. One parent who has a sentence is penalized, while the other parent, perhaps even convicted of an identical offence, although that doesn't sound like a very happy circumstance all around.... It doesn't appear to deal equitably with those either, does it?

    Could the bill be fixed in some way by condensing the whole thing down to something inserted into the Divorce Act? It would be a statement something like, it would not normally be in the best interests of a child to make an access order or continue custody in any one of these sexual offence scenarios. In other words, suggest strongly in the law something about what would not ordinarily be in the child's best interest, and then leave it to the judge.

    Prof. Gerald Gall: Ms. Cooper mentioned that there is no existing list in the Divorce Act, but that doesn't preclude a list of some sort, as you suggest, or some guidance for the court being put in. In fact, there is a precedent for that. There are certain crimes in the Criminal Code where, if they are committed for hateful reasons, that affects the sentence; the judge takes that into account when making a sentence. I suppose you could direct a court to take this into account in making an access order, but it doesn't bind the judge, that's the key point. It's just something to be considered on a mandatory basis, and that could be done.

Á  (1155)  

    Mr. Derek Lee: Yes, and then do we want to bind a judge? Obviously, Lisa's law is going to bind a judge. Is there any other piece of the Divorce Act where we bind the judge?

    Ms. Jennifer Cooper: That's essentially our point, that the judge has wide discretion now. I think you're talking about creating a list where you would direct the court in these circumstances to say, we don't think access is appropriate. You would have to go beyond Lisa's law. If you had, for example, a parent who was so psychiatrically disordered that there was no point in having a visit, you might like to stick that into the list. You might have a bunch of things on the list, but we suggest that this is not the right way to go. You should allow a court to take into consideration what this particular family's factual situation would suggest is relevant.

    Mr. Derek Lee: Yes, so we're exhorting the judges who make the decisions not to be stupid.

    I'll pause there.

    The Vice-Chair (Mr. John McKay): Your hole is fairly deep.

    Voices: Oh, oh!

    Mr. Derek Lee: Thank you, Mr. Chairman.

    The Vice-Chair (Mr. John McKay): The first rule of getting in a hole is to stop digging.

[Translation]

    Mr. Robert Lanctôt: There is a way of saying this, Mr. Chairman. It is called the «learned judge». Lawyers would understand that.

[English]

    The Vice-Chair (Mr. John McKay): Mr. Mills.

    Mr. Bob Mills (Red Deer, Canadian Alliance): Thank you.

    I guess all I have to add is, since this has come forward, the number of women who have called. It has been all women who have had similar situations and so on. It's not about just Lisa, it's about a lot of Canadian women.

    We're talking about a case where two judges felt this visitation was acceptable. We're talking about someone who raped their 13-year-old sister. Because of his methods, it took five years for the RCMP to catch him through DNA testing. We're thinking about the best interests of kids. We're talking about a five-year-old and a six-year-old. We're talking about pedophiles only. We're not talking about some guy who got in a traffic accident or someone who touched a breast in a bar. We're talking about a pedophile. We're talking about children, and we're saying, if custodial parents or the children agree that the visit is best, it can go on. It doesn't say it would never happen. If they say it should happen, it can happen. Four constitutional lawyers, one of them dean of a law school in Ontario, said there isn't a constitutional problem. And the court of public opinion right across this country says this should never happen, that five-year-old and six-year-old kids should never be forced to go and visit someone who raped their sister for so many years.

    So I guess I can listen to what you have to say and you can nit-pick, but I have a great deal of difficulty understanding how all those women who have called me about this don't deserve some protection. Change it. Fix it. Amend it. Put something in where it will work. But don't let this happen to kids and to mothers out there. I assume it could happen to fathers, but I haven't received any calls from fathers.

    Ms. Jennifer Cooper: Mr. Mills, you indicated just now that you were talking only about pedophiles, so perhaps we're misunderstanding your list, because proposed paragraph 16(9.1)(b) seems to say that it will be any provisions of the Code, regardless of whether the child was a victim. Was it your intention not to have it apply to these kinds of offences?

    Mr. Bob Mills: Yes, basically, I would have restricted it to pedophiles. It was through legal advice that I was given that wording. Having now gone through this, I would restrict it even more to pedophiles. The psychologists and teachers I've talked to say these kids have been permanently damaged by what happened to them.

  (1200)  

    Ms. Jennifer Cooper: We can agree, though, that at present the bill is far wider than that?

    Mr. Bob Mills: Well, yes, and I'm trusting this committee will narrow it down, amend and fix it however it needs to be fixed so it won't let this sort of thing happen to all those people who are calling in. As I say, I'm really quite surprised at how many calls there have been. Many of them, of course, don't want the publicity, they don't want it out there. Lisa's a brave woman to do what she's doing, but she's doing it for a lot of other people, not just herself.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Mills.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you.

    This obviously is a difficult issue for us to deal with, because you do have a great deal of emotion being expressed with respect to the concern. I think each of us, as a parent who would think of a child going through this situation, has a great deal of empathy. Yet the way the law has been drafted and presented here today or through the course of this process, it clearly is a very broad law. I reviewed it and felt it was broad, but I felt that within it there was a sense of concern that needed to find some expression through the law.

    What I've been hearing today--and I was touched by Professor Gall in his commentary--is that what we might be looking at is a potential for a review mechanism or suspension mechanism that would operate for a limited period, 30 days or something, to allow the parties to properly go through a process of review regarding access. That may not stop stupid judicial decisions, but it certainly might be a step in the right direction that meets the tests that have to be met in this process.

    We're also going to face one limiting factor, that we are, at least at this point, just dealing with the Divorce Act. I see the broader scope as limited in this process we're going through, and we need to figure this out. If we are going to introduce something, do we really have to go through a federal-provincial process of trying to find something that would meet the broader populace in this regard?

    I'd like to get some comments on whether you see that we ought to be striding in a different direction to try to address the perceived concern and eliminate that concern, or at least ameliorate it, through a process of review or suspension or an opportunity for people to ultimately go through the courts or get access to the courts to deal with issues of this nature where there are, potentially at least, existing orders of access. I'd like to hear any ideas, because I think we're canvassing the breadth of your imagination and ability to assist in getting to the bottom of this and seeing if there are legal means that might be helpful.

    Ms. Jennifer Cooper: I heard Professor Gall's proposal for the first time as he was speaking--we've just met today. That was the proposal to provide a 30-day suspension of access and an expedited hearing. That part of his proposal is certainly something that would be consistent with our position, which is that you allow a court to weigh the various factors and you make a decision on that basis. Certainly, expediting a hearing is a very good idea, and that often happens in family law matters. Probably, it's not such a wild prejudice to the child to be without a parent for 30 days. As you begin longer periods than that, it would probably prejudice a child who has determined that they ought to have a relationship.

    The second piece of what Professor Gall said was that there maybe ought to be a presumption in those circumstances. We wouldn't agree with that. The section doesn't agree with legislated presumptions. This is what was being spoken about by Mr. Lee when he suggested that somehow you put a statement in the law that we believe you should do it this way most of the time. That's kind of what you call a presumption in law, and we are not in favour of presumptions. We think, in determining the best interests, it really doesn't matter who has the legal onus. That's not the point here, right? The point here is the best interest at the end of the day.

  (1205)  

    The Vice-Chair (Mr. John McKay): Professor Gall, do you wish to add anything?

    Prof. Gerald Gall: It's not a bad suggestion--even though it's my own--that you consider a 30-day automatic suspension, and then expeditiously have a hearing as to whether the access order should be varied within the 30-day period. I agree with you, Ms. Cooper, the 30-day deprivation of access is not a big thing. There are probably months and months of deprivation before that time.

    As far as changing the onus is concerned, I threw that in, but I guess I would agree with her. One of the underlying issues is, do we trust our judiciary? I do. Do we trust our judiciary to conscientiously and in good faith determine what's in the best interests of the child? I do. I don't think we need to build in directions. The International Convention on the Rights of the Child doesn't build in directions, it just talks about the best interests of the child as well.

    So to reiterate, I think that's a possible route you could take, as well as narrowing--and Mr. Mills was mentioning this already--some of the provisions in proposed paragraph 16(9.1)(b), and also addressing some of the wording, “a term of imprisonment”, to clarify whether it includes a term of parole or not. Perhaps there could be a little more definition, a little more precision, and a temporary suspension to deal with the immediate situation. I think that could solve all the problems that have come to your attention, Mr. Mills.

[Translation]

    The Vice-Chair (Mr. John McKay)): Mr. Lanctôt, you have three minutes.

    Mr. Robert Lanctôt: Thank you, Mr. Chairman. Clearly, if we have a new Bill on pedophiles only, it is a totally different matter. But this doesn't change the fact that we are generalizing… As Mr. Mills was saying in a way, people will ask me how could it be in the best interests of the child to visit a pedophile or a person who abused his or her sister or the victim herself? We already have the necessary components in the Act. It seems we want to change an Act that doesn't need to be changed. I even think that your suggestion about the 30 days is not much of an improvement.

    In family law, we have interim decisions. On the same day, it is possible to obtain an interim order without a hearing, just with written affidavits. At any rate, in Quebec, this is the way it works. I don't know if it works in the same way elsewhere in Canada, but in Quebec, I can obtain in a few hours a no-access order without a hearing. There is a hearing but it is before a judge only, without the parties being able to testify.

    We have interim orders, interim decisions, as we call them, and we have the final judgement. So, the 30 days you're talking about, what would it change ? I can get it. This means that the custodial spouse, whether the mother or the father, can in a few minutes or a few hours, prevent his or her child to go and visit that person, and the judge will maintain the status quo. What this means is that with the affidavits, when we presume that someone has committed a sexual crime against a child or another crime, the judge will not, just with an affidavit such as this one, allow the child to go and visit that person until there is an inquiry, until there an interim hearing or a final hearing. We already have the necessary elements to do that. It is just as if you absolutely wanted to add something. But I am telling you that the elements are here.

[English]

    The Vice-Chair (Mr. John McKay): Does anyone want to comment on Mr. Lanctôt's intervention?

    Ms. Jennifer Cooper: I would like to confirm that it is true pretty much everywhere in Canada, not just in Quebec, that there is a process in which you use affidavits and can move things expeditiously. This is true in an emergency situation. I think what's different about--if we can so call it--the Gall amendment is that during the time it takes for the court to fully consider this there is an automatic suspension of access. That's different from the present circumstance, where an existing order would continue unless and until it's changed. My understanding--and he can comment on it--is that the actual substantive hearing would take place within those 30 days. It would not be just a provisional order. An actual hearing about what was in the best interests of this child would be expedited--and you know, if you did family law for 13 years, it's possible for parties to delay things. It's like the Hague convention on custodial rights; you have timing that you must respect. There's no playing around with rules, you would have to do this.

  (1210)  

[Translation]

    Mr. Robert Lanctôt: What you are saying is true, but it is very academic. In practice, things can be postponed, but not an interim order. I am sorry, but if I decide to ask for an interim order in the few minutes that follow, there will be a decision on the same day: that's guaranteed.

[English]

    The Vice-Chair (Mr. John McKay): Professor Cotler.

    Mr. Irwin Cotler (Mount Royal, Lib.): I'm wondering if you've had an opportunity to look at other jurisdictions to see whether similar legislation exists regarding no access in these circumstances. If so, what has been the experience of such legislation in those jurisdictions?

    Ms. Jennifer Cooper: No province or territory in Canada has this at present. I have not looked outside Canada.

    Prof. Gerald Gall: No.

    Mr. Irwin Cotler: I know you made reference to this, Professor Gall, but have you done any particular study regarding the manner in which this legislation relates to the purposes and principles of the International Convention on the Rights of the Child?

    Prof. Gerald Gall: I referred to article 9, which says you can't separate a child from a parent without a hearing to determine what's in the best interests of the child. The thrust of the International Convention on the Rights of the Child is, of course, the protection of the child, and that is repeated throughout the entire instrument. In a sense, this section is a bit of an anomaly, because it includes fairness toward the parent as well as the child, but the thrust of the convention obviously relates to protection of the child. It goes far beyond just familial matters. It talks about health, education, provision of necessities, children as prisoners, children as accused, refugee children, etc.

    I'm not really answering your question.

    The Vice-Chair (Mr. John McKay): Thank you.

    Mr. MacKay.

    Mr. Peter MacKay: Thank you, Mr. Chair.

    I often reflect on scenarios like this, and I'm reminded of a phrase that a law professor I had at Dalhousie, Victor Goldberg, used to repeat time and time again about bad facts making bad law, which is so apropos here. Yet I keep coming back to the motive and desire behind this legislation, to prevent the harm that happened in the case involving Lisa Dillman and her children from happening again.

    Mr. Toews and I were speaking about how we might somehow improve this. I think it's along the lines Mr. Gall referred to, a presumption or a reverse onus. This overlooks the problem with proposed paragraph (16)(9.1)(a), which I agree is too broad, and Mr. Lee's example highlights that. It would go something like this. An addition to this bill would read, in essence, that the non-custodial parent can demonstrate that the right of access is not contrary to the best interests of the child, keeping in mind proposed paragraph (16)(9.1)(b). Therefore, what we're doing is essentially instructing the hard-headed judge, or however you want to describe him or her, in allowing himself to overlook this, which appears to be what has happened here. If we have in law now, as you correctly pointed out, that we have to keep in mind the child's situation, age, and circumstances and those of the parent, it seems to me pretty basic to say that if a parent does fall into this category of being a sexual offender--and I agree that we should tighten up the language--currently under sentence and incarcerated.... So do away with this scenario of a person being on parole or on a conditional sentence. What people should be on conditional sentence for is a whole other issue. If having that type of directive would prevent this scenario from being repeated, it seems to me to be a noble cause and something we should be trying to write into law.

    We know something has happened--and I say this with the greatest respect to Mr. Lanctôt--whether or not it is an anomaly. Mr. Mills has referred to the fact that he has received many calls, having raised this issue and given it a profile. So that scenario exists. There must be some way for us to improve the law.

    How do you respond to this idea of putting in a reverse onus scenario, with the instruction that the judge consider this circumstance before making any judgment that would force a child, particularly one of tender years, to visit the parent? I fully accept that there are many prisons that go to great lengths not only to supervise, but to make it a very child-parent-friendly environment. Yet you can't take back the trauma. Once that emotional harm that was described is done, you can't take that back. I think, in the first instance, judges should have to put themselves through this protection.

    Ms. Cooper, you'd be a great judge, because you took us through all those considerations. You obviously anticipated all those scenarios.

  (1215)  

    Ms. Jennifer Cooper: I'm just a great lawyer, because I prepared for this hearing.

    Mr. Peter MacKay: All I'm saying is, let's make sure judges prepare for the hearing too, and if somebody hasn't gone through this thought process--and they should have--of what psychological damage could be done, let's put something in that's more than a subtle reminder.

    Ms. Jennifer Cooper: It certainly would be an improvement on this bill to have it as a kind of presumption, which is what you're suggesting. We don't support that, because we think the judges need to have full discretion to take all factors into account. However, your proposal would address our concern that there be a judicial hearing. There would be nothing automatic about it, but there would be a hearing. You would consider that to be a middle ground, then. It would take into account the concerns we're raising, yet it would still meet the need to red flag for a judge that it is necessary to pay particular attention, because there is an incarcerated sex offender, and we have to tread carefully.

    Mr. Peter MacKay: I accept your comment. I have just a brief one myself. You've pointed out that the age and wishes of the child are important. I know there's a danger of going into this Cartesian thinking of writing everything into the act, but if those two considerations are there, a conviction for sexual assault would certainly warrant mentioning as well.

    Ms. Jennifer Cooper: Those aren't in the act, they're made by a judge. There's nothing in the act, it just says “best interests”. It's all judge-made.

    Mr. Peter MacKay: Thank you.

    The Vice-Chair (Mr. John McKay): Mr. Lee.

    Mr. Derek Lee: Mr. MacKay and others have suggested that this type of provision should apply only when the person is actually incarcerated, but I would ask you, being familiar with family law, don't you think the alleged harm or trauma associated with a sibling of a victim visiting the incarcerated perpetrator would be present even if the person weren't incarcerated? What if it were a non-custodial sentence and there were no incarceration? Wouldn't the trauma for the child be just about the same, irrespective of the institutional setting, in being forced to visit a parent who had sexually assaulted a sibling? Is the distinction put forward here earlier important enough for us to stick to, or should we abandon that distinction of whether or not the person is incarcerated?

    Ms. Jennifer Cooper: We have suggested in our letter that it be narrowed to that, because we feel the bill as it stands is too broad in a lot of respects. It's too broad in respect of incarceration, parole, conditional sentence. It's too broad in saying it applies to a victim: it could be a victim as in a car accident, as you're telling us. It's too broad when it lists all these offences, which do include touching a breast in a bar. It's just too broad all over the place.

    What you've asked is not really a family law question, but a psychology question. I guess a psychologist would say, in the circumstances, perhaps the visitation in the prison is the icing on the cake, if you like, in an already difficult situation. It's a factor that needs to be taken into consideration. That isn't to say we don't allow children to go to prisons all the time. Apparently we do, and we even encourage it. But in this kind of scenario, it would be an additional factor.

    Mr. Derek Lee: Thank you.

  (1220)  

    The Vice-Chair (Mr. John McKay): Mr. Toews .

    Mr. Vic Toews: I had some discussions while some of the questioning was going on. I've certainly seen some issues that need to be addressed in this bill. I noted with some interest that Mr. Mills indicated it was not his intention that the bill be this wide, but this was more an issue of drafting, Mr. Mills not being a legal counsel or legally trained. I think we assume that when we provide instructions, the results will reflect our wishes.

    I think the committee, given what Mr. Mills and the witnesses have said today, has much to consider. Certainly, the proposition I spoke to Mr. MacKay about, as also off the record to Mr. Macklin, the issue of creating an onus on the non-custodial spouse to demonstrate that the right of access is not contrary to the best interests of the child, is a way to proceed. It simply shifts, in my opinion, the onus onto the person who was responsible for the difficulty, the individual convicted of the crime. Also, if we simply added that onus to the end of the present legislation, we might have to do some tinkering with what offences are covered, but what would happen once the individual is imprisoned? Then the right of access is suspended automatically. It would then be incumbent upon the person so convicted to bring the application.

    What I'm very worried about is that if we simply allow the custodial access to continue, it will be in the best interests of the person incarcerated to delay the court hearings. We know how these hearings are delayed over and over again. We know the experience of thousands and thousands of spouses, usually female, who don't get access to maintenance awards because of this constant adjournment over years. I'm sure the lawyers here know of the tremendous problem with the abuse of that by spouses avoiding responsibilities.

    I'm simply making the statement that I'm encouraged by what I've heard here today, and I think there are ways of proceeding that will accommodate Mr. Mills' original intent and, most of all, protect the best interests of the children. I don't know if that raises any new concerns.

    The Vice-Chair (Mr. John McKay): Professor Gall, do you have any comments on that?

    Prof. Gerald Gall: People here recognize that some sort of finessing, some sort of work, is necessary on the legislation to make it palatable. It's very important not to lose sight of something that may have got lost, the possible charter, bill of rights, and international obligations. By saying that, I'm not redoing my submission. I'm just saying it's very important that there be a hearing to determine the best interests of the child. However you circumscribe the hearing, a hearing is essential under the law, and proceeding without the opportunity for a meaningful hearing will attract legal scrutiny, without a doubt.

    Mr. Vic Toews: In fact, I am suggesting that there be a hearing, but that the onus be on the non-custodial spouse. I'm saying, if it isn't already the case, why shouldn't it be the case? The custodial spouse in this situation is not the one causing the concern.

    Prof. Gerald Gall: The worse part of the legislation is the fettering of the judge's ability to determine what's in the best interests of the child. I think there's a common acceptance among us and among most people that you just can't fetter the independence of a judge in making that determination. The other thing would be to ensure that the determination will be made in appropriate circumstances and in an appropriate manner.

  (1225)  

    The Vice-Chair (Mr. John McKay): Ms. Cooper.

    Ms. Jennifer Cooper: On this issue of onuses, think carefully about these presumptions. You really don't want a situation where a judge is saying, I don't think this person has discharged their onus, so there isn't going to be access. The judge should be free to just simply decide, without legal onuses, what's best for this child, period. It's too important to have a judge be able to hang their hat and say, if it was just a level playing field, I would have allowed access, I think that's best for the child, instead of saying, in this case we've made a legal onus and I can't get over that barrier. We shouldn't create artificial barriers. It should be as it is now, just a level playing field, what is best for this child. That's how the judge does it now, and that shouldn't change.

    The Vice-Chair (Mr. John McKay): Thank you.

    Mr. Macklin.

    Mr. Paul Harold Macklin: I want to follow that up. You're not recognizing, then, that in this particular situation there is a problem? Are you making any suggestion as to how we should deal with the problem, if there is a problem? There seems to be a sense here that there is a problem. Mr. Mills is indicating that it may be more than just one set of facts that a judge misinterpreted. If we do have this problem before us and we take it as broader than just one person's case and set of facts, what are you suggesting we should do? Are you simply holding firm to your position, as earlier stated, that we shouldn't change anything?

    Ms. Jennifer Cooper: Our position, yes, is don't change anything, there isn't a problem. There may have been a problem in this case. I'm not familiar with the facts, as there was no published written decision. Assuming there was a problem, that a judge made a mistake, you ought not to change the law, because there was an injustice there, to create injustices in other cases. Don't do it. Leave the law. It works most of the time pretty darn well.

    The Vice-Chair (Mr. John McKay): Monsieur Lanctôt.

[Translation]

    Mr. Robert Lanctôt: We want to amend this Bill in such a ways that it is becoming very, very restrictive. It is more exclusive. This is what I was saying earlier. Let us say that there is a reversal in the amendment that was proposed.

    It is not quite the same thing in civil law. In the case of a married person who is not divorced, a request is necessary. If a person wants to see his or her child, he or she has to submit a request. In the case of unmarried people, there will be another distinction again because we're only talking about the Divorce Act.

    Here, we are excluding even more people. With the amendment you're trying to propose, it is even worse, in relation with Section 15. That would apply only in the case where there is a decision and where access has been granted. Here, you're only talking about this case. In your formulation of the amendment, you're just talking about the fact that there is a decision. That's it. So you're creating another distinction again. This is what I was afraid of earlier: Section 15 of the Charter is going to create huge distinctions throughout the country and in Quebec between legitimate and illegitimate children. You specified something which is going to be even more damaging.

    I'm just asking you to be very careful because you are being even more specific, thus creating an even larger problem.

    I have represented many children. I think we're going the wrong way. You're telling me that this will be done automatically, but in the specific case you were mentioning, it will be even more difficult. As to the other cases, you're not solving anything. As regards the only case to which your amendment applies, the only thing that this lady would have to do, is submit the request herself immediately to stop the interim access, because she obtained a decision on access. She can do that with a simple piece of paper, and she will get it. For sure.

  (1230)  

[English]

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Lanctôt. I think that was your whip telling you that your interventions are to be directed to the witnesses, not to your colleagues. It is an interesting discussion, but we have witnesses, and I'd be interested in their comments as much as members'.

    Mr. MacKay.

    Mr. Peter MacKay: Maybe just as a follow-up--and I won't ask this of Mr. Lanctôt--this suggestion he makes is one I think has to be addressed. That is, do you feel that the passage of legislation such as this, in any form, in a whittled-down, narrower form, would be open to abuse? You've done many family law cases, and those who have practised law have encountered them. These cases are gut-wrenching, emotional, and irrational at times. So do you see instances where this could be used by a vindictive parent to try to deny access? We have to rely on the judges to say, let's look at the facts. So whether we change it or leave it as is, presumably, it will still have to come before a forum where a judge is going to say, prove that access is justified or not justified in the best interests of the child.

    Ms. Jennifer Cooper: The bill as drafted, which allows the custodial parent to say, no, you can't have access, because I say so, and that's it--no hearing, no second chances, no nothing--puts a lot of power into the hands of the custodial parent. I've been a family lawyer for 22 years. I love my clients. Half the clients I represent are men and half are women, so I have a lot of different types, custodial parents, access parents. People do use things like that as bargaining levers. When you have a very big card to play like that, it might be that you'll use it. You'll use it in matters that don't affect the children, like the financial settlement and other aspects of it. People do that. I think the bill as drafted is absolutely open to abuse, with a custodial parent saying, give me the house and maybe I'll give you some access, I decide. That's not healthy. If you have a hearing in some form or other, which is what I think the group is beginning to look at, that trump card is taken away and put back with the judge, the unbiased judge who's looking out only for the child.

    Prof. Gerald Gall: You can correct me, but I think there's a Supreme Court of Canada case, Gordon v. Goertz, that commented that the custodial parent shouldn't have the say-so. Am I correct on that?

    Ms. Jennifer Cooper: Yes. That's a mobility case.

    The Vice-Chair (Mr. John McKay): Out of curiosity and to indulge the chair, one of Mr. Mills' motivations was statements--and he'll correct me if I'm wrong--to the effect that the judge or judges in the case felt that their hands were tied, that they had virtually no choice. That seems to militate against the position that the judge is impartial and has an unfettered discretion to make a decision in the best interests of the child. Is there anything that would support the view that the judge's hands were tied and he had no choice but to make a disposition such as this one?

    Oh, I've been corrected on that, because it's a jurisdictional issue, rather than what's in the best interests of the child.

    Mr. Vic Toews: Perhaps the clerk could indicate what she told you, because I found it of interest. I was eavesdropping.

    The Vice-Chair (Mr. John McKay): We're not in any airplane, are we?

    Phil.

    Mr. Philip Rosen (Committee Researcher): My understanding, based on what Mr. Mills told us last week, is that there were two different decisions. We haven't seen any of these, of course, transcripts or court orders or anything, but my understanding is that the Alberta decision probably involved the Alberta judge saying, because the matter arose in Saskatchewan, I don't have jurisdiction. That's probably what you're talking about, the Alberta judge saying his hands were tied: Madam, go back to Saskatchewan.

  (1235)  

    Mr. Bob Mills: That is correct for the Red Deer judge. The Saskatchewan judge, however, indicated.... I did get those transcripts, which you should have received. I received both of them.

    The Vice-Chair (Mr. John McKay): We can get into this discussion....

    Mr. Bob Mills: The Saskatchewan judge basically felt he didn't have reason to prevent access, because of the situation.

    The Vice-Chair (Mr. John McKay): Canadian Alliance, do you have any questions?

    Mr. Vic Toews: No, but I would like to see those transcripts. I think they would help the committee in formulating some kind of response.

    The onus has to be on somebody in any case where circumstances change. I think we can discuss what types of offences, and some of these are very severe kinds of sexual assault, with a weapon, for example. Certainly, the imposition of a sentence for something like that necessitates some kind of explanation on the part of the person who's been sentenced. I don't see any constitutional or other problem in asking this individual to justify why access should continue. I don't think that's a proper reverse onus, but simply a presumption against the individual, given a very serious set of circumstances.

    I've been very pleased with what we've heard today, Mr. Chair, and I don't think I have any further questions.

    The Vice-Chair (Mr. John McKay): Mr. Lanctôt.

[Translation]

    Mr. Robert Lanctôt: It is always the same thing. I raised the fact that this is so precise that it would apply to a very, very specific case. There will be a huge discrimination. I wanted to repeat that I find this…

[English]

    The Vice-Chair (Mr. John McKay): I want to thank the witnesses on behalf of the committee. You certainly have provoked quite an animated discussion here, and we really appreciate your contribution to this committee and to the way in which I hope the debate will unfold. I think this is Canadian law-making at its best. So thank you, all of you. It's very much appreciated.

    I would just ask the committee to stay for a moment while the witnesses leave. The clerk has asked me to bring to your attention a draft letter to Ms. Lucie McClung, the commissioner. So I'm suspending and we're going in camera.

    [Proceedings continue in camera]