June 10, 1993

PC

Charles Deblois (Assistant Deputy Chair of Committees of the Whole)

Progressive Conservative

The Acting Speaker (Mr. DeBlois):

Is the House ready for the question?

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
?

Some hon. members:

Question.

)is

[DOT]?

June 10,1993

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Charles Deblois (Assistant Deputy Chair of Committees of the Whole)

Progressive Conservative

The Acting Speaker (Mr. DeBlois):

The question is on Motion No. 3. Is it the pleasure of the House to adopt the motion?

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
?

Some hon. members:

Agreed.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
?

Some hon. members:

No.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
?

Some hon. members:

On division.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Charles Deblois (Assistant Deputy Chair of Committees of the Whole)

Progressive Conservative

The Acting Speaker (Mr. DeBlois):

Negatived on division.

Motion No. 3 negatived.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Gilles Loiselle (President of the Treasury Board; Minister of State (Finance))

Progressive Conservative

Hon. Gilles Loiselle (for the Minister of Justice, Attorney General of Canada and Minister of State (Agriculture)) moved

that the bill, as amended, be concurred in.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink

Motion agreed to.


PC

Gilles Loiselle (President of the Treasury Board; Minister of State (Finance))

Progressive Conservative

Mr. Loiselle (for the Minister of Justice) moved

that the bill be read the third time and passed.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Rob Nicholson (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Rob Nicholson (Parliamentary Secretary to Minister of Justice and Attorney General of Canada and Minister of State (Agriculture)):

Mr. Speaker, I suppose that anytime there is an amendment to the Criminal Code and I have the honour to speak in the House then I would say it is a pleasure to speak. It truly is a pleasure to talk at the third reading stage of this bill.

I begin by thanking hon. members on all sides of the House for making it possible for this bill to get to third reading because I do believe that it is an important step forward in the Criminal Code. It is an important step forward for individuals who fear for their lives and their safety because of the unwanted attention that is sometimes directed at them.

I am pleased that the members of this House have agreed to move this piece of legislation. This is legislation that I think is very helpful and very important to children involved with the criminal justice system and children who are the victims of child molesters. There is considerable reason for this House and its members to be proud of the work they have done on this legislation.

Government Orders

A number of individuals and groups came before the legislative committee and indicated that they wished there were more time for consent. I would be less than honest if I said that I wished there were more time for consent. I can say that we are not bringing this legislation forward to be miserable or not to have a full discussion on this. There are certain realities we face. Among all the things and the pressures facing the minister, the government and parliamentarians, the process has been a reasonable one.

It was just three months ago that I was in Toronto and participated in various workshops concerning the prevention of crime. I can say that there were individuals there and I am sorry I did not take down their names and with what they were affiliated. However, they raised the matter of an anti-stalking legislation and indicated the things that we could be doing at the federal level to enhance public safety and to make better laws in this country. Certainly anti-stalking was one of them.

I mentioned at the report stage that I was the recipient of a petition in my own riding of Niagara Falls in which over 6,000 people, mainly women, said: "Look, this is an urgent problem. Parliament should bring forward legislation in this area".

I wish there had been lots of time for the parliamentary committee to study this. It was done in a couple of weeks. I do not agree that the clause-by-clause consideration was only three hours. I remember being there for most of the afternoon. We went from 3.30 p.m to about 6 p.m. and then we went again for several hours in the evening. I can say that I and other members were prepared to come back the following morning as well if there had been other amendments or other discussions.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
NDP

Joy Langan (Deputy Whip of the N.D.P.)

New Democratic Party

Ms. Langan:

It was only three hours for clause by clause.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Rob Nicholson (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Nicholson:

Three hours? My own recollection of it is that we were there in the afternoon and the evening. If hon. members want to discuss it further, I wish we had the summer. I wish we could bring in people and everything else.

Having said that, I think this is good legislation. I believe it was well crafted and the committee process was a good one. I respectfully disagree with individuals

June 10,1993

Government Orders

who were before the legislative committee and threw up their hands and said they did not like what we were doing because they were not consulted.

Part of the consultation process is the legislative committees. Those who are backbenchers sometimes make speeches in which we say we want more involvement and influence. I truly believe the legislative committee process is a way of consulting people who are directly involved and have an interest in legislation and I think it can make a difference.

I have been on all the legislative committees in the justice area for the last nine years. I can think of only one or two pieces of legislation that were not changed at the committee stage. I think that is the way it should work. Whether a suggestion comes from a member of the government, a member of the NDP or the Liberals, I think we as committee members have a responsibility apart from any partisan considerations to have a look at it to see whether we can incorporate it.

Some good changes were made to this bill. I am not saying it was not a good bill. It was tremendous legislation and a tremendous step forward but I believed it could be improved at the committee stage.

I think anyone who wants to seriously and without partisan consideration have a look at what we did at the legislative committee will agree that this bill was improved and that is the way it should be. That is the way the parliamentary system should work for private members who give their time and become involved with pieces of legislation. I think it is good for the groups that appear before the committee.

The hon. members who sat on that legislative committee will remember that one of the last witnesses, Professor Bala, said a lot of interesting things to the committee. He asked why we were making a distinction on the question of uncorroborated evidence of children. It is a good question and I believe I know why that distinction was made. It is because it has taken Parliament a long time to come to grips with the question of children's evidence.

We made substantive changes with Bill C-15 several years ago but I think we are still clearing away some of the common law misconceptions about children testifying in court. There are presumptions that the testimony of children is suspect or that children will lie on the stand. I think this 19th century concept has been discredited.

When a man like Professor Bala comes before the committee and asks why that distinction is being made and why we do not remove any reference to corroborated or uncorroborated children's evidence, if it makes sense why should we not do it? That is a healthy process and the way committee works.

That is why I have complete confidence in this bill that was carefully drafted by the individuals in the Department of Justice under the leadership and direction of the Minister of Justice. This wonderful piece of legislation that makes this country a better place to live was substantially improved at the legislative committee process.

This bill sends out a message to individuals who want to lavish unwanted attention on others, usually women. In the vast majority of cases when we talk about stalking women are the victims and recipients of continuous and repeated unwanted attention. We have sent the message out to those individuals through the Criminal Code saying if they want to engage in that kind of activity, it is a criminal offence in Canada for which they can be charged and imprisoned.

I think the actual wording of the legislation is improved. This bill went to the legislative committee as what was known as a specific intent offence. Several individuals and members of the legislative committee agreed that instead of making it a specific intent offence we would make it a general intent offence.

Again, we widened the scope of the bill to send a message to those individuals that the kind of activity that is sometimes engaged in by one individual against another is not going to be tolerated in Canada.

We also heard people say there may be problems with the reasonable test. Traditionally in the English common law and the interpretation of the criminal justice system the test was that of a reasonable man. For the most part the victims of criminal harassment and stalking are women. Groups came forward and said they wanted to make sure there was not a reasonable man test. All the circumstances that might be faced by an individual had to be looked at.

One of the changes is that the fear the individual feels for his or her safety must be reasonable under all the circumstances. We are sending a signal to the courts to take into consideration the total place that person has in society and any fears and concerns he or she may have.

June 10, 1993

We are sending out the message to look at the whole package.

It was pointed out to us this is not the only part of it. I welcome people like Monica Rainey and others who came before us and indicated that much of this bill deals with children and the problems they face with individuals who would sexually molest them. A lot of the legislation is directed toward that.

We made changes in the committee. It was pointed out by a number of members, and there was an amendment from the member of the NDP who is in the House saying that the penalty for the individual who intends to commit a sexual offence with a child outside this country is inadequate. I agree. I think she was absolutely correct and individuals came before the committee and indicated that this penalty should be increased. That was done and I think that is good.

This bill is also bad news for child molesters. Those individuals who are convicted of child molestation can now find themselves subject to a prohibition order that can last for life that prohibits these individuals from going near public places and parks where children play. This was something most of us received material about.

It happened in British Columbia and it happens in other provinces where some of these individuals are going from job to job and there seems to be a gap in the law. Under this bill a person can be prohibited from employment that puts him or her in direct contact with children. Who can be against that? How many Canadians can say that is a bad idea? That is a step in the right direction.

We made another significant change at the committee. Someone said: "Never mind employment that puts people in contact with children. What about the individual who is convicted of molesting children and wants to get involved with the Boy Scouts, Girl Guides or Big Brothers?" We covered that possibility as well. We included the prohibition of participating in voluntary organizations and I believe that, too, is a step in the right direction.

I know other members of the House want to talk about this. This is a good day for Parliament. This is a good day

Government Orders

for the committee system of the House of Commons that good legislation can be made better.

It is a bad day for anybody out there who is in the business of molesting children because one standing committee of Parliament is dealing with the question of child pornography, making it a crime for the first time to possess child pornography and that is a good idea. This bill, and particularly that prohibition and some of the changes we made with respect to children giving evidence is bad news for people who are child molesters as well.

When this Parliament deals and comes to grips with such problems this Chamber once again, as it has throughout its history, brings honour upon itself and it makes me very proud to be a member of this House.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
LIB

Mary Catherine Clancy

Liberal

Ms. Mary Clancy (Halifax):

Mr. Speaker, I rise today to speak ultimately in support of this much needed bill. I certainly add my voice to that of the parliamentary secretary's in that I think some very good work was done in committee. I said this earlier at report stage.

I might suggest to the parliamentary secretary with the greatest of respect that it is perhaps a little soon to wax lyrical on how this bill, as active legislation, will assist in the matter. It is certainly a much needed bill. There are things we had to have which is why my party is supporting this bill today, but to suggest in any way that it may be flawless is to miss the point of legislation. Unfortunately none of us is blessed with the ability to create flawless legislation and this bill certainly has its flaws.

First and foremost however is the need for the legislation. It really is unnecessary to articulate the horrors surrounding the stalking bill and the need for a stalking bill. There have been deaths in almost every province and region of this country. We heard from attorneys general, police officers and various other sundry groups that those deaths could have been prevented with legislation such as this.

There were imperfections in the process. First and foremost, a major imperfection was the lack of consultation. I am going to address that in a few minutes when I talk about the responses of women's groups in this country to this bill.

June 10,1993

Government Orders

There were other imperfections. Those of us on this side of the House were concerned at the tying together of the provisions relating to child abuse, particularly child sexual abuse, and the whole idea of the stalking amendments to the Code, the criminal harassment sections. I am really not imputing motive to the government. I can only say that my own reaction to this was that I was concerned we might be trying to pit the rights and needs of women against the rights and needs of children.

I think everyone will agree with me that in general, women are the primary care givers of children in this country, not always and in every case but in the vast majority of cases. There is something in every woman, whether she happens to be the primary care giver of a child or not, that distresses us to see even the suggestion of the rights of children put up in trade with the rights of women.

Again I compliment the parliamentary secretary and the government on the fact that they were most amenable in general on a number of the amendments which made the bill palatable and passable.

We have to be on our guard when dealing with these areas and particularly the areas that go so viscerally to the way we regard ourselves as a country, think about the protection of the weak and the need for true equality and true justice. We must put these bills in their proper places and not make the mix too varied to make it unpalatable at a future time.

To get back to the stalking provisions in particular, we are talking about a bill that goes after what can only be called fears of injury and death in the minds of far too many women in this country.

One question I posed to a number of witnesses during the committee stage of this bill was whether any bill was better than no bill, given the criticisms of the bill previous to its amendment. The response from all but the most vociferous critics was that yes, probably any bill was better than no bill.

I think we have a better bill than just any bill. However it goes to the root and seriousness of this problem that activists and advocates for women would say that any bill is better than no bill.

Let me talk just briefly about the criticisms of women's groups. I agree with my hon. colleague from New Westminster-Burnaby that the time was too short. I am going to articulate the criticisms made by women's

groups, many with which I agree and a few with which I do not.

However I have to say that I was disappointed last Saturday by the reaction of the National Action Committee on the Status of Women, and in particular its new president. I congratulate its new president, Sunera Thobani. However I think there is a difficulty that needs to be articulated here.

Feminism and the women's movement is not monolithic. We can disagree and we clearly do. There are five political parties in this House and there are feminists in four of them anyway. That was probably an unfair shot-

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
PC

Rob Nicholson (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada)

Progressive Conservative

Mr. Nicholson:

There are some in the NDP.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
NDP
LIB

Mary Catherine Clancy

Liberal

Ms. Clancy:

I have not forgotten the member at all. She is the hope to my left. The point that has to be made is that within the feminist movement we do disagree. We disagree on process, even if we do not disagree on goals.

I was disappointed because good and hard work was done by members of all three parties to try to make this better. I do not think there is any question from the members of the committee, or from members of this House, that the work done in that committee was done by the participants in good faith.

I have to say quite frankly that having been a member of that committee when I heard the president of the National Action Committee say that she was not going to support it my first response was that I had not seen the final draft of the amended bill even though I worked on it. Therefore, I wanted to know how someone who had not seen the final draft of the bill could be so certain that it was unworthy of passage.

I want to particularly deal with the criticism that it is similar to the American bills dealing with the stalking of movie stars. First of all, just because a woman happens to be a star of a soap opera or a film or is a famous woman does not make her any less vulnerable in a great number of ways.

I am thinking of that young television actress. She is no less dead because she was famous. A man came to the door of her house after stalking her and killed her on her own front doorstep. There is an actress who used to be in a soap opera in New York who can no longer work in the entertainment industry because of the actions of a stalker. She is in hiding because of what this man has done to her.

June 10, 1993

Our bill bears little or no resemblance to those American bills. Obviously there are similarities because we are dealing with similar problems, but this is not what we are looking at here. We are looking at what happens to ordinary people in Canada when they are faced with a stalker. The vast majority of ordinary persons in Canada who are faced with stalkers are women, not always and not in every case, but certainly the vast majority. I think that criticism was unfair and unfounded.

There are a couple of criticisms however that were not unfounded. The first is consultation, and I mentioned it before. To a degree the government probably now realizes that it did make a mistake on this. Certainly the consultation process on Bill C-49 created a good feeling, a good sense of support, and all the things we needed to bring forth what was in Bill C-49, which was good legislation as well. It was not perfect but good.

The precedent had been set for the hon. member for Vancouver Centre, who was then the Minister of Justice. I understand she is involved in something else over these next few days. I congratulate the current Minister of National Defence for that consultative process.

I understand why the women's groups were angry and why they felt left out. The front line workers asked: "Why did you not talk to us?" It was a mistake.

However, given the fact that a number of people continue to say we need this bill, such as the assistant deputy attorney general of Manitoba, the attorney general of Ontario, various police associations, the Canadian Bar Association and all kinds of witnesses who came before us, was the lack of consultation sufficient to jettison the bill?

No, it was not. It was a mistake but women, in particular, in this country need this bill. Therefore we should not go to the root of the matter and say we must go back to square one. I would hope in future that any and all governments would reinstate the consultative process but it should not kill this bill.

Government Orders

I am going to get a bit into technical legal arguments. I worry about this because there is a tendency for people with law degrees to sound pompous but I am certain that my colleagues will-

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink
LIB
LIB
LIB

Mary Catherine Clancy

Liberal

Ms. Clancy:

The hon. members for Nepean and Bonavista-Trinity-Conception have both reassured me, and neither one of those hon. members are lawyers.

The question of the preamble was one that was brought forward by a number of women's groups because the preamble sets out the intention of the legislation. They were particularly concerned about the specific fears and circumstances of women.

I understand that concern absolutely. I understand it to the very marrow of my bones because I know what it is like. I have represented hundreds of women who were hard done by in the legal system in a variety of manners. I understand that.

Martin's Annual Criminal Code of Canada comes out every year with all the amendments to the code. This one does not yet have the amendments as a result of Bill C-49. That will be in next year's Criminal Code.

Bill C-49 had a preamble but it is only the bill. It is only in the paper we have here that Bill C-49 includes the preamble. When Bill C-49 goes into the Criminal Code the preamble will not be there.

Consequently, when lawyers, defence or prosecution, and judges are sitting in the courtrooms of the land looking at this bill, looking at the amendments, then even if we had created a preamble it would not have made it into the Criminal Code. The odds on its affecting the judicial process are slim and none.

Second, part of the way trials are conducted and the legal process works in a courtroom is that we cannot cite a preamble. We can only cite the body of the bill. My consequent prejudice with regard to every one of these things is that we should not waste them in a preamble. If we want to say it then we should say it in the body of the bill.

June 10,1993

Government Orders

The question of intent was very difficult. The amendment came through and the burden of proof has been considerably lessened by the addition of "knowing or recklessly". There is no question that it is difficult to prove intent. Elowever if we take intent out in every way there is also no question that judges will infer intent based on the conduct of the accused and the fact that there is a concept of a mental element in almost every offence, and certainly offences of this nature.

The fact that we have the concept of recklessness in this bill will go a long way toward dealing with this problem. In criminal law we generally do not know how things are going to work until they are tried and interpreted and until they are judicially noted.

Professor Nicholas Bala told the committee that eliminating intent altogether means that the courts will then say that because there is this view that one can never be convicted of an offence without any kind of intent then they will say that the intent is that of causing reasonable fear and then we will have to show that the person intended to cause reasonable fear. That will be more difficult to prove than the amendment that we brought in.

The clause in section 2 of the bill as it now stands, with the amendment we made, is a far better situation than we had in the beginning. It will be easier but it will not be perfect. There will still be problems but the bill now reads: "No person shall, without lawful authority and knowing that another person is harassed, or recklessly as to whether the other person is harassed, engage in the conduct referred to in subsection 2".

It is not perfect but it is better. It goes a long way toward addressing the questions that were raised by women's groups in this particular area.

Then we have the question of reasonableness. This is again a bit of a lawyer's argument because those of us who suffered through law school have a tendency to be wedded intellectually to the reasonable test.

I can remember, and I brought this up at the press conference when the bill was introduced, when on my first or second day in law school a professor spoke about the reasonable man test. When the heads of the 20 women in the class all snapped up he immediately

amended it, being a lawyer and knowing which way the wind was blowing, to the reasonable person test. In too many of our courts the reasonable person is still the reasonable man. That is a bona fide fear on the part of women who will have to go before the courts in this country.

They know it. They have seen it and there is nothing that anyone can say that is going to make it better because we know it is true. It is just like the old law about a husband and wife being one person at law, and that one person was the husband. It was not the wife. It was the husband.

What can we do to change this? There are a number of things we can do. Unfortunately most of them cannot be done in this bill because enforcement and the judicial process are not things that we can legislate easily. One of the things is mandatory gender sensitivity training for judges. I merely raise it. I know it is not in the bill but I have such a knee-jerk reaction to this sort of thing that I have been raising this for four years in this Chamber so I am going to raise it one more time.

No less a personage than Madam Justice Wilson has called for this and so have a lot of other lesser lights in this country, one of the least being myself. I keep being told over and over again that it is impossible. No it is not. It is not impossible. This Chamber could do it with the political will. Right now, the judicial institute in this country offers good gender sensitivity training forjudges. It is good stuff. Sixty per cent of federally appointed Canadian judges have availed themselves of this training. In those courts one can see the difference. Forty per cent have not. In those courts one can see the difference too.

What do we do? I actually had one person say that they will die some day. I do not think I can wait that long and I do not think that the women of Canada can wait that long. Unfortunately some of them are not at death's door.

The problem is that age is not an indication of a lack of sensitivity. The lack of sensitivity can be as rampant in younger judges as it is in older judges. There are many older judges who because of their life experience are a lot more sensitive to this issue. I can think of a couple of senior members of the bench, very senior members, who were among the first to sign up for this training. Before I go off on a complete tangent I would just like to say that if there is one thing that we should be doing to make

June 10, 1993

things better for women in this country it is mandatory gender sensitivity training for judges in the federal area.

The next question was the whole question of reasonableness. That was amended. As my colleague for New Westminster-Burnaby has said, it is not necessarily perfect. It sure is not. It will depend on the judges and how they will interpret this. What it now says is: "No person shall without lawful authority and knowing that another person is harassed, or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection 2 that causes that other person reasonably" and the amendment adds "in all the circumstances to fear for their safety or the safety of anyone known to them".

Is "in all the circumstances" sufficient? I do not know. I hope so. The problem is that we are going to have to depend to some degree on judicial discretion but "in all the circumstances" opens the door for the use of expert testimony called on behalf of the victim to talk about the circumstances relating to women.

One of the most common examples that has been used-it shows the utter insanity of stalkers and what they do-is the one ploy of sending flowers. Women have been inundated with roses or inundated with some other form of flowers. What has been in the history of the relationships between people who care for each other a symbol of romance, affection and all of these things becomes a symbol of horror, fear, domination and threat. It is clear that there are people whereby this "in all the circumstances" allows for testimony with regard to that kind of conduct. Is it enough? Again we do not know but we cannot at this stage of the game wait and see.

That is why I would have liked a review. That is why I still think a review is a good thing. However there are other ways that we can do the same thing. The bill obviously is amendable and this is what we are going to have to look at in the future if necessary. We are going to have to see whether or not "reasonable in all the circumstances" solves the problem.

I can say right now that if it does not solve the problem then every one of us here in this House is going to have to answer to the women's groups who have raised the question. We take in a sense a leap of faith because we want the best legislation we can get.

Government Orders

That in general deals with my concerns about this bill. In conclusion I merely want to say that the women of Canada need the protection of this bill. I hope to God it is enough. I know that many of us have worked hard to get to this point.

I too want to congratulate both the member for Moncton and the member for New Westminster-Burnaby for their private members' bills. This is one of the most serious problems facing our society today. We have to deal with it. We have to pass this bill. We have to hope that in other jurisdictions the sensitivity to enforcement will do something to ensure that women do not have to live in fear.

Topic:   GOVERNMENT ORDERS
Subtopic:   REVIEW OF ACT
Permalink

June 10, 1993