May 2, 1972

GOVERNMENT ORDERS

CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT


The House resumed, from Monday, May 1, consideration of the motion of Mr. Lang that Bill C-2, to amend the Criminal Code and to make related amendments to the Criminal Code 1971 Amendment Act, the Criminal Records Act, the National Defence Act, the Parole Act and the Visiting Forces Act, be read the second time and referred to the Standing Committee on Justice and Legal Affairs.


PC

David Samuel Horne MacDonald

Progressive Conservative

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

May 2, 1972

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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May 2, 1972

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.

May 2, 1972

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.

Criminal Law Amendment Act, 1972

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.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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NDP

John Leroy Skoberg

New Democratic Party

Mr. John L. Skoberg (Moose Jaw):

Mr. Speaker, I should like to say a few words on the bill as a layman, not a person with legal talent but rather as one who becomes concerned with the type of treatment many people in our society are receiving today. All too often we in this House and those in the courts of the land pass and deal with legislation when all we are doing is using our direct judgment of the moment. Unless some realistic and humane consideration is given the legislation that we pass, then nothing is going to be resolved so far as the amendments before us are concerned. If we are to be consistent in this House of Commons we should give consideration to those people who, in the last resort, will make the final judgment on those who are covered by the legislation.

It appears to me that all too often those who have to make that final decision let their bigotry get the best of them. All of us remember what happened in Toronto not long ago when a justice of the peace deliberately let his bigotry get the better of him and some people suffered in the process. No doubt the minister will look at this situation and will carefully scrutinize those who in future are appointed to a position where they make a final judgment on others, to ensure that they are themselves able and capable of appreciating the social consequences of any sentence they may impose.

My colleague, the hon. member for Broadview (Mr. Gilbert), dealt at length with the various sections of the bill and I have no intention of recovering that ground at this time as a layman. Let me deal, as did the speaker before me, with some of the provisions in the hijacking section. I

25104-56 (

May 2, 1972

Criminal Law Amendment Act, 1972 believe the time has long passed when these provisions should have been brought in, even if it were necessary to bring them in as separate amendments a year or two ago. Even if some amendments are made to the present provisions in the bill dealing with hijacking, we still have to ratify both the Hague and the Montreal conventions following approval of the Criminal Code amendments. It seems to me we spend a lot of time in this House spinning our wheels, so to say, not getting very far with the very specific legislation required to deal with a situation that has come upon us within a very short space of time. I have listened to the observations of those who are in the position of making this kind of decision and who suggest that in the very immediate future they will be taking some action concerning the situation confronting us. I am wondering whether the "very immediate future" means in one month, two months, one year or two years.

We all realize the serious situation regarding the kind of hijacking that has been going on during the last while, and if the minister is really concerned about this, surely some immediate action could be taken to alleviate the problem confronting the Canadian Air Line Pilots Association, the travelling public, and others who face the dilemma of whether to travel by air in view of the frightening situation that exists. As I have said, even with the passage of the bill we still have to iatif T The Hague and the Montreal conventions. I hope tht. minister will keep in constant touch with his colleague, the Minister of Transport (Mr. Jamieson), so that this matter can be taken care of as soon as this bill gets through the committee and comes back to the House, with whatever amendment may be made to it.

The hon. member who preceded me spoke of some prison situations, and in the short time that I have been a member of parliament I have had the opportunity, along with some of my colleagues, to visit both the Prince Albert penitentiary and the new Millhaven penitentiary. The latter visit did not turn out too well, since the minister decided that as members of parliament we should not perhaps go there to see what is going on behind the scenes and we were asked to leave the premises.

However, at the Prince Albert penitentiary we talked to the inmates and found all too often that the only concern of the people running the institution was to make sure the inmates were subjected to the utmost confinement. They were positive that that was the way to bring rehabilitation to the inmates. They were not concerned about rehabilitative measures that embraced technical schools and the technical courses which are available in some penitentiaries. Instead of that, they tried to ensure that the prisoners were confined to their cells for the majority of their time. Not surprisingly this only makes the prisoners bitter, and when they are released at the end of their term they vent their bitterness on society for dealing with them in this unjust way.

Even though the Millhaven penitentiary is nice and shiny, with all modern conveniences, if no real consideration is given to how prisoners in penitentiaries are treated, then what can we expect as far as law enforcement is concerned? I am sure we all recognize that our police forces try to do a good job, but when they are confronted with people who have become better as a result of serving

a term in a penitentiary how can they cope with them? With my limited knowledge, I am still of the opinion that those people involved with welfare committees, those who do not have anything, believe that the law of this land deals with them unjustly and that we in this House of Commons must become concerned if we want people to respect the law.

Mr. Speaker, I believe that the people who say that the law is applied in two ways have a case. I am sure the minister has run into the situation, as we all have, where people with money and position seem to be able to get away with murder, while all too often people on welfare receive the full effect of the laws passed in this House. It would appear that if you have money you can hire someone to get you off the hook. I hope that the minister realizes it is not good enough to have the best legislation in the world; we still need the realistic and human touch of those who mete out the sentences under the legislation.

I would like to suggest to the Minister that, in addition to the submissions made by the Canadian Airline Pilots Association, in addition to the submissions made by the poor people's associations and the welfare groups and others who feel they are being dealt with unjustly, when appointments are made to the various positions he give consideration to the social sciences involved in those positions, which many people now consider to be most important.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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IND

Lucien Lamoureux (Speaker of the House of Commons)

Independent

Mr. Speaker:

Order, please. If the minister speaks now, that will close debate. The hon. Minister of Justice (Mr. Lang).

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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LIB

Otto Emil Lang (Minister of Justice and Attorney General of Canada; Minister responsible for the Canadian Wheat Board)

Liberal

Hon. Otto E. Lang (Minister ol Justice):

Mr. Speaker, the debate in this House on Bill C-2 would lead one to believe that we should have a fruitful discussion in committee as we move toward the passage of these new measures into law. The committee will be a more appropriate place for me to deal in detail with some of the comments of individual members on particular clauses or aspects of the bill, including such matters as the present status of the breathalyzer.

I should like to join with the hon. member for Vancouv-er-Kingsway (Mrs. Maclnnis) in her remarks of appreciation to Senator Fergusson for the lead she took in the other place in connection with the provision of clauses which would put women in the same position as men for jury duty. It was an oversight on my part not to give credit to Senator Fergusson in this regard, and I appreciate the reminder.

Members on both sides have generally spoken in favour of the changes in regard to corporal punishment. I was somewhat astonished, not by the opposite point of view being taken by a member but by the tone taken by the hon. member for Edmonton West (Mr. Lambert). As I say, I can understand an attempt to make an analytical argument in favour of the deterrent effect of corporal punishment, but I was slightly astonished at his tone which seemed to suggest that by wanting corporal punishment removed the rest of us were on the side of crime. This, I think, is an unnecessary and inflammatory position to take.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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?

Some hon. Members:

Hear, hear!

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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LIB

Otto Emil Lang (Minister of Justice and Attorney General of Canada; Minister responsible for the Canadian Wheat Board)

Liberal

Mr. Lang:

It is even more unusual when taken with the fact that almost all members who spoke on both sides of the House have made clear their support for finally moving into a position of removing corporal punishment.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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NDP

Stanley Howard Knowles (N.D.P. House Leader; Whip of the N.D.P.)

New Democratic Party

Mr. Knowles (Winnipeg North Centre):

Especially his own colleagues.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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LIB

Otto Emil Lang (Minister of Justice and Attorney General of Canada; Minister responsible for the Canadian Wheat Board)

Liberal

Mr. Lang:

I should make one further clarification, Mr. Speaker. There was a reference made to some slightly ambiguous words which I used in connection with there perhaps being a case for corporal punishment. I did make it clear in my words, as did the Solicitor General (Mr. Goyer), that this does not apply in the penal system in general. I was simply reserving the position for the head of a family and his role in this regard where the atmosphere is rather different from that in a penal institution. That is precisely the contrast I would draw-if corporal punishment may be imposed in the atmosphere of the family, presumably with love, I might take a different view of it in other settings.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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NDP

Stanley Howard Knowles (N.D.P. House Leader; Whip of the N.D.P.)

New Democratic Party

Mr. Knowles (Winnipeg North Centre):

There is no right of appeal there!

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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LIB

Otto Emil Lang (Minister of Justice and Attorney General of Canada; Minister responsible for the Canadian Wheat Board)

Liberal

Mr. Lang:

Mr. Speaker, I could not end the debate without commenting on the many things said by the right hon. member for Prince Albert (Mr. Diefenbaker), who spoke against both corporal punishment and capital punishment and surveyed the general need in our law to impose order through effective enforcement and also the need for general flexibility and the movement of the law toward a reasonable stance. I think these remarks completely fit in with the distinguished legal career of the right hon. gentleman, and I should like to applaud them at this time.

In the course of subsequent remarks there was some confusion concerning the clause dealing with common assault. To some extent the Parliamentary Secretary to the Solicitor General (Mr. Hogarth) has corrected one impression in this regard, namely that we are now indeed increasing the penalty in regard to common assault and turning it into a summary conviction offence. There is a further point which should be clarified in regard to increasing penalties. For assault causing bodily harm, the option is given to the accused to choose the method of trial rather than being forced to go before a magistrate.

I should say one further thing when dealing with specific sections in relation to what the Parliamentary Secretary to the Solicitor General said. By previous amendments to section 589 of the Criminal Code, it is open to a court to sentence an accused to a lesser offence, even if that be a summary conviction offence and even when the accused is before the court on an indictable offence. I think I should say that simply to set the record straight.

Many of the other subjects to which hon. members referred are under serious study both by the Law Reform Commission and by the department as we seek the material for the next omnibus Criminal Code amendments. As I have said, Mr. Speaker, I think it is important for us to continue to proceed quickly in response to clearly forming opinion about the changes needed in our crimi-

Protection of Privacy Bill

nal law to make it ever more responsive to generally understood and reasonable approaches to the law. We must always seek additional ways to ensure that the law treats all persons as fairly as possible, rich and poor alike. That means removal of discrimination whether it be in the letter of the law itself or in the attitude of judges and others who operate within the legal system.

These are the objectives we must pursue. We must not assume that they are easy to attain, but by keeping them in sight we might hope to make progress toward them.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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LIB

Russell Clayton Honey (Deputy Speaker and Chair of Committees of the Whole of the House of Commons)

Liberal

Mr. Deputy Speaker:

Is it the pleasure of the House to adopt the said motion?

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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?

Some hon. Members:

Agreed.

Topic:   GOVERNMENT ORDERS
Subtopic:   CRIMINAL LAW AMENDMENT ACT. 1972 AMENDMENTS TO CRIMINAL CODE, CRIMINAL RECORDS ACT, NATIONAL DEFENCE ACT, PAROLE ACT AND VISITING FORCES ACT
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Motion agreed to, bill read the second time and referred to the Standing Committee on Justice and Legal Affairs. * # *


PROTECTION OF PRIVACY BILL

AMENDMENTS TO CRIMINAL CODE, CROWN LIABILITY ACT AND OFFICIAL SECRETS ACT

LIB

Otto Emil Lang (Minister of Justice and Attorney General of Canada; Minister responsible for the Canadian Wheat Board)

Liberal

Hon. Otto E. Lang (Minister of Justice) moved

that Bill C-6, to amend the Criminal Code, the Crown Liability Act and the Official Secrets Act, be read the second time and referred to the Standing Committee on Justice and Legal Affairs.

He said: Mr. Speaker, the legislation before the House proposes the addition of a new part to the Criminal Code, specifically, Part IV.l "Invasion of Privacy". The form of the legislative is prohibitory; that is, certain conduct is prohibited and described as criminal, its purpose being to protect rights of privacy against invasion.

The particular right of privacy which is recognized and protected is the right of individuals to communicate with each other where the circumstances are such that it is reasonable for them to expect that the communication will not be intercepted by others. The only kind of interception which is prohibited is that done wilfully by means of an electromagnetic, acoustic, mechanical or other device.

Over the last few years there has been an increasing body of evidence of the technological advances made in surveillance techniques. It has become possible for almost anyone to penetrate the privacy of offices and homes, to watch and listen to people in public places and to listen in on their communications by telephone, telegraph and radio. All of these things can be done without detection, without evidence that the invasion has taken place; and it can be accomplished through the use of electronic gadge-try which is not too expensive and which is becoming increasingly available.

Privacy must mean the right to be let alone, to live one's own life with a minimum degree of interference. The extent to which an individual gives up that privacy by communicating with others or associating with others in society must remain a matter in respect of which he has freedom of choice. Of course, it is not an absolute right,

May 2, 1972

Protection of Privacy Bill

because being in society requires acceptance of some responsibilities by him and intercourse with his fellow citizens. Each individual requires individual privacy to nourish his individual creativity, to preserve his personality balance and develop his individuality. There are parallel needs in group activity and in the growth and development of each individual and group in society. There is a constant search for the proper balance between the needs for privacy and for disclosure.

In order to achieve the greatest freedom for an individual in society, there must be a proper balance with respect to the gathering and disclosure of information by government. A small area of secrecy for government is necessary to preserve the integrity of secret information and the privacy of internal policy-making processes, but those processes must be made public when the need for secrecy has gone. In any event, there must be sufficient publicity of government matters so that the people will be able to form proper judgments in political matters based on the facts. It is in this context that I propose this legislation which recognizes in individuals the right of privacy and which will protect an invasion of those rights.

A study of electronic surveillance and invasion of privacy was commenced in the Department of Justice some years ago to further work which had been done by committees of the Canadian Bar Association. This subject was debated at the 1968 Annual Convention of the Canadian Bar Association, at the conclusion of which the resolution adopted was presented to the then minister of justice.

There have been a number of private members' bills going back for seven or eight years which proposed legislation dealing with this subject matter. Some of those private members' bills were referred to the Standing Committee on Justice and Legal Affairs, together with a general direction that the committee consider and report on the subject matter of electronic eavesdropping on November 25, 1968. That same order of reference directed the committee to recommend legislative action. The order of reference was continued by further order on November 21, 1969. The committee reported to the House on March 11, 1970. During the course of its deliberation it heard evidence from a number of witnesses and considered a number of submissions made in writing.

I think it would not be inappropriate for me to say that the committee deserves commendation for the work which it did and I should like, too, to say that the many people who made submissions to the committee and subsequently to my department or those who appeared for the purpose of giving evidence should be recognized as having made responsible contributions to the democratic process.

The legislation which is now proposed is almost identical to the bill which was introduced by the Minister of Finance (Mr. Turner), my predecessor as minister of justice, on June 28, 1971. An opportunity has been granted to the hon. members of this House and to all citizens of our country to consider the proposals and to make known their views with respect to these proposals. A good number of them have been considered in the Department of Justice, and I imagine that all of the members here have had full opportunity to consult with their constituents about these proposals.

The bill before the House would make it an offence, for the first time, wilfully to intercept a private communication by means of electromagnetic, acoustic, mechanical, or other devices. A private communication is any oral communication, or telecommunication, made under circumstances in which it is reasonable for the originator thereof to expect that it will not be intercepted by any person other than the person intended by the originator to receive it. Intercept means to listen to, record, or acquire a communication, or acquire its substance, meaning or purport. An offender would be liable to imprisonment for five years.

It would also be an offence to possess, sell, or purchase any electromagnetic, acoustic, mechanical or other device, or any component thereof, knowing that the design thereof renders it primarily useful for surreptitious interception of private communications. Conviction for this offence could bring imprisonment of up to two years.

A third new offence would be with respect to the disclosure of any information obtained by a person by means of an unlawful interception; or by disclosure, without proper authority, of information obtained lawfully. A sentence of up to two years imprisonment is provided for this offence.

The two basic exceptions to the general prohibition against interception of private communications would be in cases, first, where the interception or seizure is directed towards prevention or detection of espionage, sabotage, or any other subversive activity directed against Canada, or detrimental to the security of Canada, and where such interception or seizure is necessary in the public interest; or second, where an authorization has been obtained from a judge of a superior court of criminal jurisdiction in aid of a criminal investigation.

Provision is also made in the bill for certain other exceptions. Interceptions would be excused where a person intercepts with the consent of only one of the parties to a communication, or where the interception is necessarily incidental to the ordinary duties of a person engaged in providing a telephone, telegraph or other communication service to the public.

Before a judge grants an authorization to intercept a private communication, he must be satisfied that (a) other investigative procedures have been tried and have failed; (b) other investigative procedures are unlikely to succeed; or (c) the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures.

Any application for an authorization must be in writing and signed by a peace officer or public officer specially designated for that purpose by the Solicitor General of Canada or an attorney general of a province. Authorization can only be granted in respect of indictable offences, and the interception so authorized will not be valid for more than 30 days. There is, however, provision for renewal if the judge is satisfied by further evidence that it is necessary.

Provision is made for an emergency permit to intercept for a period not in excess of 36 hours if an attorney general or the Solicitor General of Canada or a peace officer or public officer designated in writing by him is satisfied that circumstances exist that would justify the

giving of an authorization for the interception of a private communication and that the situation requires that the interception commence before an authorization could, with reasonable diligence, be obtained. However, under such emergency procedure, an application for an authorization or approval would have to be made as quickly as possible.

Consideration was given by the Standing Committee to whether the authorization to intercept communications should be granted by a judge, a responsible minister, or by some combination of the two. Testimony before the committee was divided on this issue. As I have noted, the proposed legislation is that an application would have to be made to a judge of a superior court for an authorization. It is suggested that a judge is able to consider the application from a position of impartiality and thus bring to these procedures an assurance that they are not used freely and without control by law enforcement officers.

On the other hand, it is said that this is not the proper role for a judicial officer, because the application is ex parte, and he is not in a position to judge in the usual sense; that an attorney general is politically responsible for his conduct and can be subject to questioning should any controversy arise about the manner in which he has discharged his responsibility. The proponents of this view point out this is not so in the case of a judge who cannot be questioned and is obliged to remain silent in the event some criticism is levelled; he must remain as a judicial person, impartial and unable to engage in controversy or explanations.

The bill proposes a new approach to the law relating to admissibility of evidence which has been illegally obtained. At the present time, the test of admissibility of evidence in criminal proceedings is whether the evidence is relevant to the issue before the court and no regard is had for the question of how the evidence was obtained. The Standing Committee on Justice and Legal Affairs recommended a change in the existing law in so far as it related to the unauthorized interception of private communications. However, the committee went on to recommend that any evidence discovered or derived from an inadmissible statement could be received in evidence.

This is the approach which has been taken in the proposed legislation. There are competing points of view and on each side of this question there are arguments, many of which have been forcefully presented both to the standing committee during its deliberations and afterwards to the Minister of Justice when this legislation was first proposed to the last session of this House. I feel sure that both sides of the question will be examined again by the Standing Committee, but in the meantime I believe I should set out here some of the salient points on the two sides.

The provisions of section 178.16(1) amount to a rule of evidence applicable to all criminal proceedings and to all civil proceedings and other matters whatsoever respecting which the Parliament of Canada has jurisdiction. Arguments which have been advanced by those people who favour the introduction of this rule are of two types. The first relates to participation by the government and

Protection of Privacy Bill

the courts in illegal conduct. It is said that by acquiring and using evidence illegally obtained, the whole law enforcement and judicial process becomes tarnished and that respect for it diminishes. On the other hand, it is argued that a law which permits a preliminary finding of illegality in the manner of obtaining evidence to stop consideration of facts otherwise admissible and germane to the issue of truth likewise brings disrespect for the administration of justice.

But the principal argument advanced in the United States in favour of the exclusionary rule, where it has been in effect for more than 50 years, is that it will deter law enforcement officials from illegal behaviour and will have the long-term effect of encouraging greater conformity by invoking the moral and educational force of the law.

The arguments advanced against the adoption of the exclusionary rule appear to be based on the premise that the true function of the administration of justice is to establish truth in matters coming before the courts and that a court should not be refused access to facts relevant to the search for truth. This is not to be confused with the confession rule because there evidence is refused on the theory it might not be true. The civilized conduct of criminal trials must not be confined by mechanical or artificial rules. The inquiry which must be made here is whether the exclusionary rule is merely apparent rejection of approval of illegal conduct without effect or whether it is necessary control. A detailed examination of this question can be made before the standing committee, but I would like to note that until just recently there was no provision in the United States that the federal government is liable for damages for illegal interception by its employees. When the exclusionary rule was invoked there and implemented, the deterrent effect of tortious liability was not available. The legislation I propose does contain amendments by which the federal government would be vicariously liable. The opponents of the rule argue that the United States experience is clear evidence that the rule is not effective as a deterrent force.

In the legislation I propose, there are three ways by which unlawful or unauthorized interception should be deterred. In the first instance, the conduct is criminal bringing with it the sanctions I have mentioned. Second, the individual wrongdoer is liable in damages, both actual and punitive. This liability extends to the federal government for damages flowing from the illegal acts of its employees. The third deterrent force proposed is the exclusionary rule, but its opponents argue that the other two sanctions are sufficient. It is on that question we no doubt will have further comment. Before an intercepted private communication could be used in a trial, notice of the intention to use it, together with a transcript of the contents, would have to be given to the accused person.

A disclosure of the existence of a private communication or the contents thereof would be prohibited except where the disclosure is made in the course of giving evidence under oath, in connection with duties related to a criminal investigation, in the course of normal operation of a telecommunication system, or where a disclosure to a peace officer is intended to be in the interest of the administration of justice.

May 2, 1972

Protection of Privacy Bill

The bill would also amend the Crown Liability Act to provide that where a servant of the federal Crown commits an offence under the provisions of the act, the federal government would be liable for all loss or damage caused by his actions. Provision is also made for the recovery of punitive damages in an amount not exceeding $5,000.

Another safeguard proposed is that there be a full reporting system. The Solicitor General of Canada would be required to prepare and lay before parliament each year a detailed report relating to applications made, authorizations granted and refused and interceptions carried out. Details would also be required on emergency permits. The attorney general of each province would be required to prepare and publish a similar report. The purpose of these provisions is to bring to the public notice of what activities have taken place in the past year.

Topic:   PROTECTION OF PRIVACY BILL
Subtopic:   AMENDMENTS TO CRIMINAL CODE, CROWN LIABILITY ACT AND OFFICIAL SECRETS ACT
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NDP

Thomas Clement (Tommy) Douglas

New Democratic Party

Mr. Douglas:

Mr. Speaker, may I be permitted to ask the minister a question. With reference to the temporary permits granted by an attorney general of a province and the other authorizations in the province which are instigated by him, to whom is his report made? Is it made to the legislature or to the Solicitor General of Canada and tabled in the House of Commons at the same time the Solicitor General makes his own report?

Topic:   PROTECTION OF PRIVACY BILL
Subtopic:   AMENDMENTS TO CRIMINAL CODE, CROWN LIABILITY ACT AND OFFICIAL SECRETS ACT
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May 2, 1972