Mr. David MacDonald (Egmont):
At the conclusion of the debate last night, I was making a few general remarks in respect of one specific aspect of this bill having to do with the abolition of corporal punishment. I want to refer to that again in a few minutes.
At the outset this afternoon I should like to respond in a general way to the bill we have before us and the developing trend in terms of the Criminal Code which I observe as a layman. I suppose for many people the mysteries of the Criminal Code are such that those not directly
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involved with peacekeeping and police protection, or judicial and legal affairs, are not considered to be sufficiently informed to grapple with the intricacies of the law as spelled out in the Criminal Code.
Quite frankly, I think that attitude in the past has greatly hampered the understanding, the effective use and the drafting of Criminal law. It is very significant that in recent years more and more people who are not professionally trained in the law, but who are concerned with the functioning of society, generally feel committed to examining the issues as they are put before us and passing judgment on them.
The minister, in his opening remarks last Thursday, referred to the increasing acceptance of the distinction between morality and the law. I think this will be a very important factor in changes which are made in the law in years to come. After all, and I think more people agree with this in a pluralistic society, it is not possible to impose one uniform moral code on a country any more than it would be possible to require all members of a country to adhere to a certain religious group. We believe that in a free society there must be a certain freedom of choice, as well as some responsibility, in relation to the moral framework within which society operates. What is being increasingly attempted by law, particularly in respect of the Criminal Code, is to lay down minimal standards of behaviour, if you like, beyond which we definitely infringe upon the rights and freedoms of our fellow members in society.
Having said that, I realize this will create increasing difficulties for lawmakers and create increasing difficulties in terms of law enforcement. I think we have seen some of these difficulties, because it is one thing to conceptualize an approach to the law in legislative chambers such as this and quite another thing to implement it, particularly during times of very rapid social change. One has to look only very cursorily at the provisions in this bill to realize some attempt is being made at accommodation of the rapid technological changes. There is no question about the fact that the improper handling of such things as skidoos and water skis is dangerous.
Quite frankly, if we are to become involved in the regulation or control of modern means of transportation in our society and create criminal offences in relation thereto, we are creating for ourselves much difficulty in terms of the implementation of such a law. But perhaps to be more specific, we can direct our attention to that part of this responsibility which has to do with increasing jurisdictional discretion, particularly in respect of sentencing. I think we can see only too clearly how many men have become the victims of the judicial system which has been established, simply because it was not sufficiently flexible to accommodate the individual human situation. At present there are many people in our jails and penitentiaries, not necessarily totally because of their deliberate antisocial or criminal behaviour but because at some stage they came up against an inflexible law which did not permit taking into account the particular dilemma in which they found themselves.
We are now saying that those who deal with these problems in the courtroom should, in fact, be able to examine more directly and more fairly the merits of a particular
Criminal Law Amendment Act, 1972 case, and how a particular person should be dealt with. Having said that, and quite frankly congratulating the minister and his officials for introducing these changes in the law, I think we must be prepared to follow through with the next step. I believe we increasingly realize that it is not enough just to establish a better framework in which sentencing procedures can take place, we must be sure that the individuals who administer this system fully understand the implications of these changes.
I think that here the minister will have a substantial job to do, either himself or through his officials, in terms of a program of education. We know that across the country today there is a very great disparity in terms of judicial competence between those who are prepared to listen, one might say with the inner ear, to the specific case being tried at any particular moment and those who seek only to follow an anachronistic system of hard and fast rules in respect of a whole category of misdemeanours. That surely is not a system which can rehabilitate broken and difficult human beings. Further, it is not a system which will offer any eventual protection to society in respect of future similar behaviour. This whole procedure will have to extend right from the time of the police detection or surveillance through to the time of arrest, sentence and imprisonment itself.
I think the Solicitor General (Mr. Goyer) could indicate the difficulties he has encountered in trying to provide a more humane framework in our penitentiary system. I believe he has found, in a number of instances, that the policies and reforms put forward somehow become dissipated when they reach the point of being brought into effect. I believe we should look very carefully at the whole integration of the judicial activity as it extends from the police stage through to the courts and penitentiaries. While we may have the best intentions in the world in respect of improving vastly the procedures laid down within the law, unless the men and women who administer it at the local level understand these changes and can implement them effectively, we will really not correct the situation but will create fear and uncertainty in the minds of those presently administering the law. I would argue that in a situation of uncertainty and fear we may achieve the very opposite to what is intended. I think we have seen some evidence of this in this country in the form of a real reactionary backlash.
From speaking to individuals involved at the institutional level in these reforms or changes which are being made, I have found there seemed to be a good deal of fear and uncertainty, as well as very great misunderstanding, concerning what we are about. I would argue very strongly that having put the foundation in place, as the minister is attempting to do with this legislation, he should regard this as but the beginning of the process. I think some of my colleagues mentioned the need for training programs in human relations, and in respect of the whole complex way in which our society operates, because the whole nature of criminal actions themselves has to a degree changed. I think that to the degree we have changed our attitude concerning what our places of incarceration should be, we must be very careful about how we are to get the greatest return from these institutions.
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Criminal Law Amendment Act, 1972
Quite frankly, I believe one of the greatest wastes of federal expenditure which occurs year after year is the amount of money we spend to maintain men in federal penitentiaries. Now, it can be argued that this money is spent to protect society. In what way does it protect society when we know that almost three-quarters of the individuals presently behind bars upon release will commit further crimes? Does that mean we are dealing with thousands of incorrigibles who in no way can be rehabilitated? I do not think any student of penology today can for a moment accept that as a realistic answer, because we know there have been experiments in other countries and to a small degree in this country, which have indicated that the rate of recidivism can be effectively altered if the whole approach to incarceration is drastically changed. What are we getting for the thousands and millions of dollars spent to maintain men in institutions? We are getting individuals who are being more effectively schooled in anti-social and criminal behaviour. If one wanted to point to the big waste in government expenditure, one could point to the ongoing activity of maintaining the status quo or, indeed, if you like increasing the number of people who will again enter our society and victimize innocent citizens. It is not necessary and it does not have to be that way, but we must begin to take action on this problem. I think the place to start is in the kind of legislation that the minister has placed before us at present.
It is perhaps not often that one can congratulate this government, particularly from this side of the House, and indeed one must do it in a cautious manner, but I think that what we have here are excellent steps in the right direction. Inasmuch as the legislation removes certain anachronisms from the law and replaces them with specific descriptions of some new and more relevant laws, it is worthy of praise from both sides of the House. As I said last night, reform of the law, particularly with respect to the removal of corporal punishment, is significant in that it finally affirms our society's distaste for the use of brutal methods in areas where psychology and rehabilitative treatment could be and should be the order of the day.
It might be of note to point out in passing that the United Kingdom abandoned the crudities of corporal punishment as far back as 1948. It is interesting, and perhaps just a little sad, that it has taken this country almost a quarter of a century to accept and implement a reform so obviously necessary and so clearly needed. To those who argue that there is still some validity in retaining corporal punishment, I would cite, a study that was done twelve years after the implementation of legislation abolishing corporal punishment in Great Britain as a result of which the Home Secretary in the British parliament in 1960 concluded that corporal punishment was not an essentially effective deterrent. The statistics revealed that the abolition of corporal punishment did not result in any increase in the crime rate for those offences for which it was previously imposed. There are many other statements to which I could refer but I will not take the time of the House now on that matter.
However, I should like to point out that this matter has occupied my attention in a formal way for the past four
years. On march 18, 1968, I introduced for the first time- and Your Honour will recall it because you were in the Chair on that occasion-a bill for the abolition of corporal punishment, in which I pointed out that it was obviously a relic of the dark ages and yet in some cases still used. It is interesting to note that later that same day I asked the then minister of justice, now the Prime Minister (Mr. Trudeau), whether or not he would move to include such a provision in the amendments to the Criminal Code which were at that time before the House. He indicated that he was interested in the substance of the bill but doubted whether it could be accepted at that time. Three justice ministers later we have finally included this provision in the Criminal Code, and for this I think all hon. members should be grateful.
Let me turn now to another matter of importance in this legislation, namely the matter of airline hijacking. Discussions with the Canadian Airline Pilots Association indicate that they share with all parties in the House a very real desire for the orderly and rapid passage of this bill. The elements of this bill having to do with hijacking have been called for by all parties for some time now. I think it is perhaps an unfortunate example of the cumbersome bureaucracy of the government, particularly of this government, that it has taken so long for real action to be forthcoming. Unfortunately, we did not have action on this at the time when we could have, because a meeting was held in this country almost a year ago at which agreement was reached on the substance of this issue.
Unfortunately, we have lumped this important issue of skyjacking together with other reforms which perhaps will be controversial and over which there may be much discussion in committee. I am not sure why the government in this instance, realizing the contemporary necessity of getting on with the business of having effective legislation with regard to hijacking, should use the ploy of lumping legislation on this matter over which there is little dispute in the House with other issues on which there could be quite a long discussion. There are clauses of this bill, specifically clauses 25, 26, 27 and 32, which seem to me, as a layman at least, to shift the burden of proof to the suspect in such a way that I wonder whether or not they will really be acceptable either as a precedent or an exception to the rule of British justice. Nevertheless, the much needed tightening of the law with respect to hijacking will be held up until agreement can be reached on all other clauses of the bill.
I want to refer again for a few moments to the matter of corporal punishment, and I referred to this last night, because it would seem there are some who still believe that there is some efficacy and usefulness in retaining this vestige of the past. Particularly today, when there is a certain reactionary mood in the country, nothing, I think, is more symbolic of the early punitive aim of the law than detention and the lash. Those who still advocate their continued use obviously believe that the role of a prison is primarily to punish. It is precisely that view of a prison that is responsible for the alarming rate of recidivism that we have in this country today. Yet, while this principle of reform is excellent and very important, it is important to note that the principle should not stop here.
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We are saying, and the minister is saying, that if symbolic punishment exemplified by the means of the whip is no longer acceptable in our federal institutions or as a sentence from the courts, then surely we must say that punishment as a criterion and goal for our federal institutions is as well no longer acceptable. What we have to say is that any institution that oppresses, dehumanizes, brutalizes and torments the inmate is in itself a form of corporal punishment perhaps far more hideous than a whack with a cat-o-nine-tails. What we have to establish is that as long as prison exists to confine as opposed to broaden, to punish rather than to reform and to torment rather than educate, we are administering corporal punishment of the worst variety to almost every single inmate. I think that the government has opened the door, through abolition of corporal punishment, to the recognition of the need to reform our entire penal system.
Of course, I realize that there are never many votes to be gained on the issue of penal reform. It touches far too few of our citizens; it is not a major issue, and so it is probable that this government, like so many in the past, will do little. Nevertheless, the task remains undone and barely begun unless we are prepared to go further along the road of major penal reform. I happen to believe that the deterrent for those who would perform criminal and violent acts, inasmuch as a deterrent exists at all, is the assumption that a person will be detected. I think that any degree of investigation into this area will bring us to the same conclusion. But I think also that there is something totally misplaced in the minds of those who try to judge this in a rational way when they assume that people who commit these criminal acts are acting rationally in the first place. In most cases, if the act is one of a particularly repugnant nature, we are obviously dealing with an irrational act and with a person who, to some degree or other, is acting in a way which we would certainly not describe as normal.
We are concerned, then, about two things. We are concerned that this person should be prevented from performing this act again, and therefore we remove him from society for a time. But tied to that psychology has been the concept of punishment. Now, we are saying that the time has come to regard the recognition of a second, and perhaps even more important priority, and that is the long term interest of society and the individual. We must ensure by all possible means that when an individual comes back into society, he comes back as a different individual. This makes obvious sense, both for his own welfare and for the rehabilitation of his own dignity. Also, it makes sense in terms of society as a whole, because if we release on a daily or weekly basis people into our society who are still sick, who are still on the verge of some kind of violent or criminal act, in what way have we provided protection for the innocent in our society? We have not, and therefore we must admit that to that extent we have failed. I think we must realize that in the change that is being made with respect to corporal punishment we are making a fundamental change with respect to the whole concept of punishment, rehabilitation and protection of society. I hope that many will consider this bill in terms of the improvements that we will be making to society in general.
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Before I take my seat, I should like to refer to one final matter dealt with in the legislation which I think is quite important, both in itself and by implication. It has to do with the recognition of the right of men and women to participate in jury duty in this country. I think it has been one of the continuing sex anomalies that, at least until this bill was presented, it has not been possible in all cases for women to participate in jury duty. We have continued to embrace, through that anachronism, a kind of second class citizenship for the feminine members of society. I think that the minister and his officials should be congratulated for taking the step they have. Also included in the bill is the change regarding soliciting, which recognizes that the converse of women soliciting for men can be equally true.
I mention these two changes simply to point out that this is but the tip of an iceberg. Increasingly, reports are being placed before us which indicate that in our society there has been a definite, perhaps altogether too subtle at times, discrimination against women. I think that we should treat each and every piece of legislation that is brought before this House with great care so as to make sure that we recognize each individual in his own right and do not discriminate, be it on the basis of race, class, religion or sex.
I trust that we shall have many further opportunities to discuss this legislation, and in particular the provisions I mentioned having to do with some presumption of guilt which I hope will be elaborated upon by the minister when he appears before the committee.
Subtopic: CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT