Mr. Speaker, I am honoured and humbled to participate in the debate concerning Bill , an important piece of substantive criminal legislation, with procedural paragraphs as well, that seeks to modernize the criminal procedure and make the justice system more efficient and effective.
Crime in Canada is constantly evolving. It is crucial that our criminal justice system evolves with it. The amendments proposed in Bill are the latest steps in our continuing commitment to tackling crime and ensuring the safety and security of our communities.
The bill contains some 40 amendments, developed in consultation with our provincial and territorial partners, and other stakeholders in the criminal justice system who have helped us identify processes in need of updating and issues that require attention to keep the criminal law modern and up to date with more and more sophisticated criminals.
Given the limited resources available in the criminal justice system, it has become abundantly clear that we need to find better and more efficient and effective ways to respond to crime, and make better use of those sometimes scarce resources.
I would like to take the opportunity to highlight some of the amendments that the government is proposing in Bill .
First is with regard to agents. With respect to the use of agents, or non-lawyers, the bill would allow the provinces to further monitor the quality of representation by agents of defendants charged with summary conviction offences.
Currently, agents who are not lawyers may appear and may examine and even cross-examine witnesses on behalf of defendants charged with summary conviction offences that carry a maximum term of imprisonment of six months or less.
For summary offences carrying a maximum term of imprisonment of more than six months, agents may represent defendants only if they are authorized to do so in accordance with a provincially- or territorially-approved program.
Agents perform a valuable function, particularly, in northern and remote areas of Canada where native court workers acting as agents for defendants frequently provide assistance to defendants.
We must keep in mind, however, that serious consequences can arise even from a criminal conviction, and many criminal cases involve a significant degree of complexity.
In order to further promote adequate representation for defendants, who choose to be represented by non-lawyers, changes to the rules regarding agent representation would allow the provinces and the territories to set criteria and approve programs for the full panoply of summary conviction offences.
Amendments to the Criminal Code would allow jurisdictions to set criteria or approve programs which would serve as pre-conditions to representing defendants charged with summary offences that carry a maximum jail term of six months or less.
However, in jurisdictions where no programs have been approved and no criteria have been set for this category of offences, agents would still be authorized to represent defendants, as is the case currently.
The situation would also remain unchanged with respect to summary offences that carry a maximum jail term of more than six months. It would continue to be open to jurisdictions to approve programs or set criteria that serve as pre-conditions to representing defendants charged with these more serious offences. However, no agent would be authorized to represent defendants in jurisdictions where no programs have been approved or criteria have been set.
Finally, for any summary offence, it would always be open to agents to appear on behalf of defendants to request an adjournment in summary conviction proceedings.
Second, the bill deals with expert witness evidence.
Amendments in the area proposed in the bill are intended to improve the current regime to ensure that all parties have the opportunity to adequately respond to what is frequently becoming complex and highly technical evidence.
When expert evidence is to be presented at trial, the bill would create new remedies designed to encourage parties to comply with the regime's notice requirements, as well as better address situations of non-compliance.
Proposed new provisions also contain a list of factors which the court must consider in deciding whether to grant adjournments. Where the court refuses to grant an adjournment or reduce its duration, the proposed amendments would require the court to provide reasons. The bill, thus, would send a clear message as to the numerous considerations and significant challenges associated with properly responding to expert evidence.
Hybridization of an offence is the legislative process of converting a straight summary offence or a straight indictable offence into a hybrid offence. This process affords the Crown the flexibility to elect whether to prosecute an offence by way of summary conviction procedure or by indictment. Proceeding by summary conviction offers an expedited trial process and a lower penalty range, whereas prosecuting by indictment involves the possibility of holding a preliminary inquiry as well as a jury trial, and offers a higher penalty range.
The proposed amendments would allow the Crown to select the most appropriate procedure in light of all of the circumstances surrounding the case for six non-violent and specified offences, three of which are currently straight indictable offences and three are straight summary conviction offences.
Hybridization offers a means of ensuring that we make the best use of our courts' limited resources and that more elaborate proceedings involving preliminary inquiries and jury trials are reserved for only the most serious offences.
The hybridization of current straight indictable offences also benefits the accused as it allows the Crown, where appropriate, to proceed summarily in a more expeditious trial process and therefore a lower penalty range.
With respect to leaving the jurisdiction while under an order not to, individuals who flee a province in violation of a bail condition requiring them to remain in that jurisdiction creates special concerns for law enforcement and the entire criminal justice system. Their flight delays and in some cases defeats the course of justice.
The current response to this behaviour is the generic offence of failure to comply with conditions of release charges as enumerated under section 145(3) of the Criminal Code. However, this charge does not differentiate between these bail violations and other bail violations such as a simple breach of curfew.
In order to create a transparent criminal record and emphasize the aggravated nature of this type of bail violation, we propose to create a specific offence of failing to remain in the jurisdiction when ordered to do so.
The creation of this offence is but one part of the response required to the broader issue of enforcing so-called non-returnable warrants. It is not intended to solve the very real challenge of returning accused persons to face trial if they are arrested some distance from where an alleged offence occurred.
The challenge of distance is a practical one and is faced within large jurisdictions as well as within a single province. It comes down to the cost of moving people to where they need to be to stand trial for what they are accused of doing. This is an issue that must be addressed by the provinces under their responsibility for the administration of justice.
Our government is working with our provincial and territorial counterparts to develop practical solutions to address the broader issue of returning accused persons to the jurisdictions where a warrant has been issued against them.
In the meantime, the creation of this new offence is a step in the right direction. The proposal for the creation of this offence is the result of extensive discussions among federal, provincial and territorial officials led by British Columbia. The proposal was discussed and endorsed by the federal, provincial and territorial ministers responsible for justice and public safety at their meeting in September 2008.
The broader issue of non-returnable warrants is complex and a comprehensive solution will likely entail the allocation of significant resources and the development of best practices by provinces rather than further legislative amendments.
Federal, provincial and territorial officials are examining best practices to maximize the efficient use of available resources. Federal officials will continue to work with their provincial and territorial counterparts to identify long-term solutions to this very serious problem.
Currently, the telewarrant procedure is available only for certain warrants, authorizations or orders in respect of searches or seizures. Furthermore, the Criminal Code provides that telewarrants are only available where it would be impracticable for the police officer to appear personally before a justice or justice of the peace to make the application.
Given advances in technology and the trend over the past several years to introduce more technology into the justice system to allow, for example, remote appearances and the electronic filing of documents, expanding the number of warrants which can be obtained through the use of telecommunications simply makes good sense. It contributes to greater efficiency in the use of the criminal justice system's limited resources.
I would rather see police on the streets patrolling and working on investigations than travelling long distances to make an application in person for a warrant before a justice or a justice of the peace.
Included in the list of warrants we propose to make available through telewarrants are tracking warrants, number recorders, as well as production orders for documents and financial records.
In order to streamline the telewarrant process and to make it even more efficient, we are also proposing to remove the requirement that the officer demonstrate why appearing in person would be impracticable in situations where the telewarrant request produces a “writing”. The impracticable requirement will remain where the request is made orally by the police officer.
Next is access to telewarrants by public officers. Through this legislation we are proposing that provisions of the Criminal Code that authorize the obtaining of warrants by telecommunications be amended to include public officers in addition to peace officers. The police who are by definition also peace officers are solely responsible for the enforcement of the Criminal Code and the Controlled Drugs and Substances Act. While they may also enforce other federal legislation, the primary responsibility for the enforcement of non-criminal offences is typically given to individuals who are not police officers but who are designated under individual statutes either as peace officers or sometimes as public officers.
While the powers that can be exercised by these officers are limited to the context of the legislation under which they are appointed, the powers themselves are typically derived from the Criminal Code. The most commonly used power in this context is the search warrant under section 487. Pursuant to this section a warrant may be obtained by either a peace officer or a public officer whose duties include the enforcement of any act of Parliament.
Even though both peace officers and public officers enforcing legislation other than the Criminal Code may obtain warrants pursuant to section 487, the ability to obtain such a warrant by means of telecommunications is limited only to peace officers. As a result, public officers frequently find themselves in a disadvantaged situation in which they require search warrants but are not able to appear before a justice in a timely manner to obtain one. Examples include officers from the Canadian Food Inspection Agency in remote agricultural areas and officers appointed to enforce the Canada Labour Code conducting investigations in relation to health and safety issues on offshore oil platforms.
The ability of such officers to obtain warrants under section 487 is the same as their counterparts who are designated as peace officers and their need to obtain them by telecommunications in a timely manner is equally compelling.
The proposed amendment will not in any way expand the powers that may be exercised by public officers but rather will give them access to the same means for obtaining authorizations for the exercise of those existing powers as is available to other officers able to exercise those same powers. It is in the interest of all Canadians to facilitate the efficient and effective enforcement of our laws by the people that we empower to do so.
Next is the Identification of Criminals Act, fingerprinting, photographing and other measurements. Bill , when passed, would provide an amendment to allow the taking of fingerprints and to conduct other identification processes with respect to a person arrested for a serious offence as specified in the Identification of Criminals Act where that person is subsequently kept in lawful detention. Currently, the act provides that these powers may be exercised where the person is in lawful custody and is charged with or convicted of an indictable offence listed in the act.
A number of conditions must be met for the proposed amendment to come into play. First, the arrest, as any other, must be based on reasonable grounds to believe that the person committed or is about to commit an indictable offence. Second, the police officer must believe, on reasonable grounds, that it is necessary and in the public interest that the person be detained in custody until brought to appear before a justice. Only in these limited circumstances will police be permitted to proceed with the identification process without having to wait for the formal laying of the charge. In most situations the proposed amendments will only affect the point in time where the identification processes are performed.
If the person is ultimately not charged with an offence, or charges are withdrawn or as a result of an acquittal, police services will usually destroy fingerprints and photographs at the person's request. It is important to note that the courts have stated that it is not unreasonable for the police to retain prints where no request is made for their destruction or return.
The proposed changes to the Identification of Criminals Act will result in streamlining the identification process and avoid having to detain the person for an extended period of time while waiting for the actual charge to be laid before proceeding with the much need identification processes.
Now to corruption of foreign public officials and bribery. Finally, in support of Canada's international obligations, the bill contains amendments to the Corruption of Foreign Public Officials Act, the Criminal Code and the Canada Evidence Act.
One of the amendments would give nationality jurisdictions to Canada for offences of foreign bribery. Most of the time, these offences are committed in a foreign country. Currently, Canada exercises territorial jurisdiction. This allows Canada to prosecute an offence committed in a foreign country when there is a “real and substantial link” between the offence committed in the foreign country and the country of Canada.
Nationality jurisdiction would allow Canada to prosecute offences of foreign bribery committed outside Canada by Canadians, permanent residents of Canada and Canadian corporations without having to provide evidence of a link between Canada and the offence. This would facilitate prosecutions of foreign bribery cases.
In addition, we propose to add the word “selected” to the definition of the word “official” in section 118 of the Criminal Code, which applies to corruption provisions. Currently, this regime applies only to persons appointed or elected.
The Federal Accountability Act provides that the appointed process for some members of the public service include consultations with Parliament. Under this process, the name of a person “selected” for an office is made public before the person is actually appointed but the person is not an official under the current definition and, therefore, not subject to the bribery provisions until the legal appointment.
In addition, the Organization of American States, or the OAS, and the Inter-American Convention Against Corruption, which Canada ratified in 2001, requires the criminalization of bribery to officials “who have been selected, appointed or elected”. The proposed amendments would correct this gap in the current law.
The bill contains many other amendments, such as those that would update the outdated prizefighting and parimutuel betting as recommended through consultations with our federal, provincial and territorial stakeholders, and other levels of government.
I trust that all members will give this bill the support that it requires. The amendments would contribute to the significant improvements in the efficiency and effectiveness of the criminal justice system that all Canadians are asking for. Criminals are evolving and becoming more complicated and sophisticated and the law must evolve to keep up.
Mr. Speaker, Bill is a very interesting bill.
I am pleased to be here today to say a few words about the challenges related to justice.
As hon. members know, I am a member of the Standing Committee on Justice and Human Rights. It was a great pleasure for me to join that committee following my first election in 2006.
In the riding of , many concerns have been expressed about the victims of crime. Sometimes the law works, but other times, it does not.
It is in the interest of the entire country and the general public that I want to say a few words about Bill .
I speak to people in general about this bill and about the system of justice in general, because it does not matter what riding one is from, people have concerns. Whether it is about victims of crime, whether it is about crime rates, or whether it is about the safety of their community in general, they look to the justice system for explanations.
I have been here since January 2006. I have never known government; I have never known what it is like to be on the government side. I have never been in the government lobby to even know what it looks like. The promised land, I have not seen.
I do know, however, what the new Conservative government in 2006 did with respect to justice issues and it did not lessen the anxiety. As a team, the Conservative justice group did not lessen the anxiety of the general public In Canada. It did not make Canadians feel safer. In fact what it did, which really has not stopped, with a series of nightly television station visits, it has put the public into a state of anxiety beyond anything that ever existed before.
I know this is not a controversial bill. I am saying that with respect to a fairly non-controversial bill, nine-tenths of which I think I could support. Imagine what I would say with some of the legislation that was clearly designed for the five o'clock drive-by photo op and had very little to do with fundamental change to our criminal law that would give everybody in the House and the people they represent a higher sense of security.
There is one truth in all of these justice issues that is so self-evident it needs not be said. Every member in this House wants his or her community and all Canadians to feel safe. Every member of this House wants an increase in the perception and reality of public safety.
Mr. Speaker, what would you do if you were in charge of the criminal laws of Canada? Most people would expect that you would listen to law enforcement. Most people would expect that you would talk to the attorneys general and premiers of the provinces and territories. Of course you would talk to the people and you would talk to committees and all that sort of thing.
Police forces across the country have been asking for various things, but at the top of their list, they have been asking for more police officers. It really has not been delivered by the government.
Attorneys general across this country have been asking for modernization of the Criminal Code in general, and specifically with the tools of investigation for crimes across the country.
The aspect of Bill which is wonderful is the modernization of the telewarrant aspect. It is a great thing, but if I look at the big clock of years, I have been here three years and ten months, and it was evident three years and ten months ago that attorneys general were asking for that modernization, and here we are almost four years later.
According to the words in the government's lead-off speech, the member for mentioned that the government is enacting recommendations in part from a conference of territorial and provincial attorneys general with the of Canada in 2008. We are still moving very slowly on what are very important amendments to the Criminal Code.
I remember very well just this spring that Wally Oppal, the attorney general of British Columbia, made the plea for much more modernization of the Criminal Code to give those in law enforcement the tools they need.
I opened my debate on this bill by saying that much of this we can support. Much of it has been much needed. Why did it not come sooner? People in Canada are wondering why.
The government prefers to go to an evening television station to talk about a law that it may introduce instead of getting to the boardrooms of the attorneys general across this country and putting into effect simple modernization of the criminal law. Why not sooner for the modernization of telewarrants?
As I say, there are some very good points in this bill and there are a great deal of items that are housekeeping in nature.
I am going to give a brief overview of some of the highlights of the bill. I am also going to spend some of my time floating some very serious questions about the aspects of fingerprinting and about the aspects of the enforcement of warrants in extraterritorial jurisdictions.
I am also going to highlight some new areas in which people not so much in law enforcement but in the tourist industry and in the municipalities across the country are looking for modernization. Those are the definition of prize fighting and parimutuels.
I was the mayor of a city. I know how important it is on the one hand to secure a community, keep it safe, keep the feeling of safety with respect to police and the laws, but also with respect to tourists and civic activity issues.
It is interesting to see that this bill has a number of items that can be seen as housekeeping, that can be seen as good for the economy, that can be seen as modernizing language. Then, almost as is done in the United States, there is a multi-clause bill and hidden in it is a big truck.
The truck is the issue of fingerprinting anyone who has been arrested and disguising it as somehow being a convenience to the person who has been arrested. Never mind being a good citizen, the person will be fingerprinted and photographed. Those records will stay in the database forever. This is a means of making sure that the good citizen is not inconvenienced in the evening. The good citizen may go home and enjoy the rest of his or her life being part of a public record. Obviously, I am talking about the fingerprinting aspect of the bill.
It seems passing strange to me because we have just had a fairly rigorous preliminary debate with respect to the elimination of the long gun registry.
Many of the people in my riding who were not fans of registering guns I do not think would be fans of having an extension of the government's arm into aspects of fingerprinting and photographing people who have been arrested for an offence and subsequently acquitted, let go or not charged.
It would seem to me that the same people that many of the Conservatives on the other side call ordinary good folk in general would believe in is the concept that one is innocent until proven guilty, that big brother should not in an Orwellian sense keep records forever of people who have never been charged with anything. That strikes me as something that Conservatives cannot believe in.
We are going to test it at committee. We are going to see what exact allegations, crimes or the actual offences are that would allow the police to do this. This is what committees are for. Contrary to some of the discussion in Parliament today about the justice committee, the justice committee works very well. I think the committee will dig into this. Perhaps we will schedule some offences. Maybe we will say that it is important to do this in terms of someone who might be a flight risk, someone who might escape the confines of the country. Maybe that is a good idea, I do not know.
However, I have seen nothing in the legislative summary, the bill itself and I was certainly not reassured by the words of the member for that it will not apply to every offence, that in every case where someone is arrested and before the person is charged there will be a photograph and a set of fingerprints taken of the person.
It strikes me that if there is not an explanation as to the seriousness of those types of offences or the extenuating circumstances, then this is something that we as a party cannot support.
There may be an argument given by the government on this and we are yet to hear from it on this in full, that we should move to a system that every citizen in Canada, every visitor to Canada, every person here on a visa should submit records of their fingerprints and a photograph for the easy identification by government officials of who they are, where they have been and what they are doing. I cannot see this as something that Conservative members would really jump up and embrace. I would like to see them go home to their constituencies and say that the government is going to start fingerprinting and photographing everyone just so the government knows where everyone is. I cannot see it, but we will see in committee.
I wonder why in this large canvass of Bill it has been decided to insert this Trojan horse of fingerprints for all. Perhaps “fingerprints are us” could be the justice department's new motto, its internal slogan.
On fingerprinting we certainly have had some objections already. It is not just me who would suggest that there is some concern.
There are concerns. Clayton Ruby, a member of the Ontario Bar Association and someone who is well known in Toronto, said in an article, and I quote:
Providing fingerprints is self-incrimination and the Constitution protects us from this. The line that is drawn is when you are charged. And to allow police to compel you to incriminate yourself before that moment is open to abuse.
On a website, as reported recently in The Province newspaper, it was said:
The proposed amendment requires anyone who has their fingerprints and pictures taken to apply to have them destroyed. It does not require the police to comply with the request, nor do they have to explain why they have declined.
So, once you're on record, it's basically permanent. Those who fall back on the pathetic excuse of, “well, the cops wouldn't have arrested you if you didn't do something wrong,” wake up.
That is not an esteemed member of the bar, but it is a person out there who has seized the sense in perhaps slowing down the process of the Conservative aim to have us all fingerprinted and photographed.
There is another element to a person having his or her fingerprints and photograph taken upon arrest. There is the aspect of retention. My friend from again, when the question was put to him directly, could not give us a comforting answer that those records would be released or expunged in the event that there were no charges. What he did was cite courts of appeal cases that said courts are allowed by law to keep those records. They have no obligation to give them back. It is really not a question of once they have them; the question is, why did they get them in the first place? We have to give this a very thorough examination at committee.
Enough on fingerprints. There is one other disturbing element that I will raise now, but as I say, I am generally in favour of the legislation. This element has to do with the aspect of people under warrant for arrest who have been accused of a crime. They are charged in New Brunswick and they are under warrant for arrest in New Brunswick for not having attended at a court date in New Brunswick. Let us say they go to British Columbia. Perhaps economic reasons propel them to go there. Perhaps they are under some mistaken belief; maybe they had a lawyer who did not inform them properly, but they are under a warrant. They show up in British Columbia. This new piece of legislation will not only ensure that people in large urban centres will be sent back to face what they are accused of in their home province, which is all fair and just, but it will ensure that they will have a penalty on top of that.
I understand and sympathize with, for instance, Vancouver Police Chief Jim Chu who has said that the main effect this would have is a disincentive for people to leave. That may be the case.
I am looking at the committee to examine the incidences of this happening. In Vancouver alone, statistics suggest, for instance, that 53 people have been arrested in Vancouver and 35 were sent back to their provinces since the Vancouver Police Department instituted a program dubbed as Con Air. This allows the Vancouver Police Department to gather up people under warrant, and ensure that those warrants will be enforced by sending them back to the provinces in question.
The unintended consequence of this in a time of budgetary recession is that Vancouver, Calgary and other places might incur fairly extensive expenses by making people return to the jurisdictions from which they came or in which they were charged. There has been no discussion on this bill or at any intergovernmental level of who would pay the costs of that.
There is a reason I have some preliminary worry about this. I mentioned the example of the fairly innocent person who is probably facing a larger offence by ignoring the warrant than the actual offence from which it came. I am concerned by comments particularly from the Conservative side throughout my time in being interested in politics that go toward not having respect for people who come from other parts of Canada. I do not need to talk about the former mayor of Calgary. I do not need to talk about comments from the with respect to a culture of defeat. I am a very proud maritimer, an Atlantic Canadian. It is very insensitive for any politician to say anything disrespectful about people from other parts of this country. When leaders say those things, it is very disheartening and it does not make the country meld together the way it should.
This aspect of the extraterritorial warrant has to be handled at committee with respect and with good back-up evidence as to why this should be done. The efficacy of it has to be certainly examined. With that caveat, we will look at that aspect very thoroughly.
Some of the modernizations I spoke of earlier go to what may not seem like a justice issue, but to the updating of definitions with respect to prize fights. It may be interesting only to a lawyer that the definition of prize fight comes just before the sections on terrorism in the Criminal Code. In any event, people may not know that prize fights, as defined by the Criminal Code, are not permitted in the provinces unless they are part of an exception.
Last night in Moncton, New Brunswick, over 12,000 people attended our new outdoor stadium to receive the Olympic flame. It was a wonderful event. Moncton is the Indianapolis of Canada in promoting sports activities. We have a fourplex arena, the largest and the best east of Montreal, and a coliseum that houses our Moncton Wildcats. It is known as a sports venue place.
The competition that brings Canadians together is evident in the House when members of the Quebec Junior Hockey League, coming from outside Quebec, can beat teams from Quebec City proper. That is a wonderful thing about Canada, that the Moncton Wildcats can beat teams that come from other parts of Canada, including Quebec, in the Quebec Major Junior League.
The definition with respect to prize fight must be modernized to understand that we do not live in the Marquess of Queensberry rules. I am looking at some members now who probably know all about altercations, but we are talking about serious altercations involving the hand and the foot. Often politicians use the foot but in a different way.
In the mouth.
Mr. Brian Murphy: In the mouth, as my colleague from Newfoundland says, Mr. Speaker.
The real point is my mayor tells me there are big tourist dollars in promoting the ultimate fight championship definitions that are proposed to specify the exemption in prize fights, which are currently not in this legislation, in section 83 as amended. It is also important that boxing clubs across our country do quite a bit in the realm of early intervention in dealing with our youth. They have a specific definition of what their sport entails.
I wish the government had arrived at the housekeeping aspects of this bill a lot earlier. It has wasted a lot of time and a lot of TV tape in bringing forth statements about laws when it could have dealt with the housekeeping aspects.
With regard to fingerprinting, I am looking at the chairman of the justice committee. I hope he understands that these two issues, the extraterritorial warrants and fingerprinting, must be examined carefully, with caution and with sensitivity, keeping in mind that we are from different parts of Canada. We need to have respect not only for the law, but for each other and for Canadians.