April 9, 2008

?

Some hon. members

Nay.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
LIB

Peter Milliken

Liberal

The Speaker

In my opinion the yeas have it.

And five or more members having risen:

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink

(The House divided on the motion, which was agreed to on the following division:) Vote #86


LIB

Peter Milliken

Liberal

The Speaker

I declare the motion carried.

When shall the bill be read the third time? By leave, now?

Topic:   Private Members' Business
Subtopic:   Criminal Code
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?

Some hon. members

Agreed.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
LIB

Charles Hubbard

Liberal

Hon. Charles Hubbard

moved that the bill be read the third time and passed.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
BQ

Michel Guimond

Bloc Québécois

Mr. Michel Guimond (Montmorency—Charlevoix—Haute-Côte-Nord, BQ)

Mr. Speaker, once again, I seek the unanimous consent of this House to apply the results of the vote just taken to this vote. If any members wish to vote differently, let them say so immediately.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
LIB

Peter Milliken

Liberal

The Speaker

Does the House give its unanimous consent to apply the results of the vote as indicated?

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
?

Some hon. members

Agreed.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink

(The House divided on the motion, which was agreed to on the following division:) Vote #87


LIB

Peter Milliken

Liberal

The Speaker

I declare the motion carried.

(Bill read the third time and passed)

It being 6:28 p.m., the House will now proceed to the consideration of private members' business as listed on today's order paper.

Topic:   Private Members' Business
Subtopic:   Criminal Code
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CPC

Dave Batters

Conservative

Mr. Dave Batters (Palliser, CPC)

moved that Bill C-519, An Act to amend the Criminal Code (bail for serious personal injury offence), be read the second time and referred to a committee.

Mr. Speaker, before I begin I will take a moment to explain the medal I am wearing on my right lapel. To explain to the many people across the Canada who would have watched at home, riveted to their television sets, throughout the vote that just took place, the medals we are all wearing commemorate the 91st anniversary of the Battle of Vimy Ridge. We commemorate the courage of those soldiers, who did what many people thought was impossible and took that hill. It was a day when Canada truly came into its own.

As a member of Parliament, one feels a great sense of responsibility when choosing the subject for one's first private member's bill. I have focused my private member's bill, Bill C-519, on a matter very close to my heart. It is rooted in a tragic criminal case, which became one of the main reasons that I entered federal politics.

On November 4, 2003, Michelle Lenius, a 32 year old woman with three children, was murdered by her estranged husband, Kevin Lenius. Michelle was my friend and the friend and co-worker of my wife Denise. Kevin was out on bail at the time of this terrible incident.

Two weeks before Kevin strangled Michelle to death, he waited for her inside her darkened Regina home until she arrived later that night. Then he raped her and assaulted her and threatened to kill her if she went to the police. Despite this threat, Michelle made the brave--

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink
NDP

Bill Blaikie

New Democratic Party

The Deputy Speaker

I am sorry to interrupt the hon. member for Palliser, but I have a point of order from the hon. member for Ottawa—Orléans.

Topic:   Private Members' Business
Subtopic:   Criminal Code
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CPC

Royal Galipeau

Conservative

Mr. Royal Galipeau (Ottawa—Orléans, CPC)

Mr. Speaker, I wonder if I could have the unanimous consent of the House to revisit a mistake for which I was responsible a few minutes ago.

On the fourth vote, I voted to support Bill S-203. In the confusion of all the noise, when the Speaker called for the nays, both chair occupants sitting here in the rump stood again, definitely in error, and my vote was included as having voted against. Thankfully my colleague from Regina—Qu'Appelle was not counted as voting against, but I was. It will appear that I voted twice. My intention was to vote once and was to vote in favour of Bill S-203.

Topic:   Private Members' Business
Subtopic:   Points of Order
Sub-subtopic:   Vote on Bill S-203
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NDP

Bill Blaikie

New Democratic Party

The Deputy Speaker

Does the hon. member have the unanimous consent of the House to correct the record?

Topic:   Private Members' Business
Subtopic:   Points of Order
Sub-subtopic:   Vote on Bill S-203
Permalink
?

Some hon. members

Agreed.

Topic:   Private Members' Business
Subtopic:   Points of Order
Sub-subtopic:   Vote on Bill S-203
Permalink
NDP

Bill Blaikie

New Democratic Party

The Deputy Speaker

I might have the chamber take note of the fact that not all chair occupants in that corner voted twice.

Topic:   Private Members' Business
Subtopic:   Points of Order
Sub-subtopic:   Vote on Bill S-203
Permalink

The House resumed consideration of the motion that Bill C-519, An Act to amend the Criminal Code (bail for serious personal injury offence), be read the second time and referred to a committee.


CPC

Dave Batters

Conservative

Mr. Dave Batters (Palliser, CPC)

Mr. Speaker, I believe you were one of those individuals who stood twice, but that is for another day.

I want to get back to the gravity of the matter at hand and this very important private member's bill that I bring to this honoured chamber tonight.

As I was saying, two weeks before Kevin strangled Michelle to death, he waited for her inside her darkened Regina home until she arrived later that night. Then he raped her, assaulted her and threatened to kill her if she went to the police. Despite this threat, Michelle made the brave choice to go to the police and ensure that he was charged for these awful crimes.

Unfortunately, after spending one night in jail, Kevin was released on an undertaking not to contact Michelle and to keep the peace and be of good behaviour. The undertaking was reached by an agreement between the crown prosecutor and Kevin's defence lawyer. The judge who made the decision to release Kevin did not hear the facts of the case. I believe that if all pertinent information had been presented to the judge that day, Kevin would not have been freed on bail and, thus, we would have had a much different outcome.

With Kevin released from jail, Michelle tried to take measures to protect herself from him. She cut down the hedges outside her home. She installed extra lighting and locks. It was not enough.

A Regina Leader-Post article, based on the trial transcripts, details what happened on November 4, 2003. It states:

Michelle left the office shortly after 4:30 p.m. on Nov. 4, 2003 and drove the 20 minutes to Kevin's house after he had declined a request from Michelle—relayed by her oldest son—to instead drop off the younger children at her home.

The article goes on to state:

“You used your children for bait, didn't you?” prosecutor Al Johnston charged in cross-examining Kevin at trial. “I did not,” he replied.

The couple's two youngest sons, then aged five and three, were in a bedroom when Michelle arrived. Within minutes of grilling Michelle about her boyfriend, Kevin grabbed her by the neck and squeezed for at least two minutes until she died.

He then took their children to a neighbour's house, returned to Michelle's body, washed her face, and called police. It was 5:18 p.m., less than an hour after Michelle left the [comfort of her] office.

Kevin Lenius was convicted of second-degree murder and sentenced to life without parole eligibility for 12 years.

These are the tragic circumstances which prompted me to propose this private member's bill, which I will refer to as Michelle's law. The passage of the bill would give our hard-working crown prosecutors another tool to help them in their very difficult jobs.

The bill deals with those accused of a serious personal injury offence, as defined in the Criminal Code. It proposes that in those cases, before a judge rules on that person's release, the crown prosecutor shall present the judge with the prosecution's evidence relevant to the release of the accused. Subsection 515(10.1) would be added to the Criminal Code to achieve this amendment.

It is my hope that the bill will be passed by my hon. colleagues in the House. This legislation would place another check in our criminal justice system to help victims and would-be victims of serious violent crimes.

Michelle's law is designed to apply only in limited circumstances. In order for this legislation to apply, the accused must be charged with a serious personal injury offence, as defined in section 752 of the Criminal Code. In order to alleviate claims that the bill would create too much pressure on our criminal justice system, I have deliberately not proposed that this provision be used in all cases where an accused is seeking bail.

According to that Criminal Code section, a serious personal injury offence must be an indictable offence of a certain severity. Examples of the types of offences included in this definition are attempted murder, manslaughter, criminal negligence, discharging a firearm, aggravated assault, assault with a weapon, or causing bodily harm, sexual assault, sexual assault with a weapon, and aggravated sexual assault.

The heinous nature of these crimes warrants that the victims of these crimes be adequately protected. I want to emphasize today that I strongly support our crown prosecutors and the important and often unheralded work they do every day to keep us as citizens safe. Michelle's law is in no way meant as a criticism of their efforts. Instead I am trying to provide them with yet another tool to assist them in their difficult jobs with hectic criminal docket court schedules.

Many members of the House may be familiar with another very recent case, which I suggest may not have occurred if the type of law we are debating today had been in place.

In September 2007, in Oak Bay, British Columbia, just outside Victoria, Peter Lee murdered his wife, his six year old son and his wife's parents before he committed suicide. This terrible crime received significant national media attention, with its shocking brutality and ugly contrast to the beautiful Oak Bay neighbourhood in which it occurred.

There is a striking similarity between this case and Michelle's case. Only about a month before Peter Lee took the lives of that entire family, he was charged with aggravated assault of his wife causing bodily harm and two counts of dangerous driving causing bodily harm. Police said that they believed Lee tried to injure his wife when he crashed his vehicle into a pole, causing his wife to break her arm.

According to media reports, the Victoria police recommended to crown counsel that Lee not be released on bail. They were concerned that he posed a serious risk to his family. Unfortunately the crown prosecutor consented to Lee's release. This decision was signed off by a justice of the peace. Lee was placed under conditions not to contact his wife, visit the family home, visit their restaurant or possess any weapons. Again, this was not enough to prevent a horrific tragedy.

According to media reports, British Columbia's Attorney General Wally Oppal has said that crown prosecutors may not have had all the facts when they agreed to release Lee.

Shortly after the murder-suicide, the province of British Columbia announced a coroner's inquest to investigate the handling of this matter. That coroner's inquest will take place in Victoria later this month. The findings from that inquiry will result in recommendations to try to prevent such a situation from happening again.

Since introducing my private member's bill, I have discussed my proposal with a highly respected crown prosecutor. In his view, a more effective solution to the problem which occurred in these two cases would be to place a reverse onus on an accused charged with a serious personal injury offence. That way the burden would be on the accused to satisfy the judge that the accused should be released pending the next court date.

Currently many offenders in serious personal injury cases, even those involving murder, are released pending trial, even when a bail hearing is held. Thus the problem may be rooted in this system of judicial interim release.

Since the Bail Reform Act was put into place in the 1970s, the onus for bail hearings in almost all criminal offences has been on the Crown. This has resulted in violent criminals being released, endangering our citizens. In fact, I understand that in many cases, crown prosecutors do not even pursue bail hearings because it is seen as a foregone conclusion that the accused will be released.

Clearly this situation must be addressed. The needs and the rights of victims are not being protected under our current system. It is incumbent upon us as parliamentarians to change this law to protect the potential victims of heinous violent crimes.

Michelle's law starts the process. I ask all of my parliamentary colleagues to support this bill, to get it to the justice committee where members of all parties can look at amending this bill to institute a reverse onus clause for cases involving “serious personal injury offences”. This type of amendment would give this bill the teeth it requires so we can truly improve our criminal justice system.

The specific amendment I would present to the justice committee would be to amend the Criminal Code by adding the following short clause in the reverse onus section, subparagraph 515(6)(a)(v). I would add, “(vi) with a serious personal injury offence as defined in section 752”. That section 752 definition of “serious personal injury offence” is the same definition as the earlier provision included in my private member's bill.

We in the House must take decisive action to make our communities safer. In our nation, among solved homicides, half of the women killed were killed by someone with whom they had an intimate relationship.

Further, in a Regina Leader-Post article from December 2006, Saskatoon psychologist Deb Farden stated:

Studies show the point at which a woman leaves a relationship can be the most dangerous--when there needs to be the most vigilance by all the systems.

We need to help these women who have made those difficult choices to leave abusive or dysfunctional relationships. I think that Michelle's law can provide some real assistance to these vulnerable people.

I respectfully ask every member of the House to support this bill at second reading stage, to get it to committee where it can be amended and fine-tuned. I have proposed Michelle's law to protect victims of violent crime from suffering at the hands of offenders who are released on bail without the judge being informed of relevant prosecution evidence.

I thank all hon. members for considering my submission.

Topic:   Private Members' Business
Subtopic:   Criminal Code
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LIB

Brian Murphy

Liberal

Mr. Brian Murphy (Moncton—Riverview—Dieppe, Lib.)

Mr. Speaker, I want to thank the hon. member for his comments. It must be especially gratifying and yet difficult because in his remarks he indicated that he knew the individuals involved in the case which spurred him to bring Bill C-519 before the House tonight. I respect his courage in bringing the matter forward.

However, I feel, as a reviewer of legislation, that we have to look at the legislation before us. We have to look at the reasonable likelihood that what has been presented will become law. I cannot continue talking about Bill C-519 without talking about the big picture of whether this bill, if sent to committee, will ever become law. That is largely due to the state of dysfunction that we find ourselves in at the justice committee which I have served on for two years since my election to Parliament.

It is only recently, I might add in a note of partisan comment. The point being that up until recently legislation has been flowing through that committee. I would say a lot of legislation has been flowing through that committee. I might add, and without a lot of compliments to the other side with respect to the workload of the justice committee, that the committee has been loaded down with many laws that have been promulgated by the ruling party to backlog it with respect to many bills.

In a way, I feel that it would almost be disingenuous for us to promise the member that in sending this bill to committee that it will become law, unless, as I make this plea, we come to a reasonable solution to the simple question of why do we not follow the rules around here.

There are rules of procedure. We have to forget for a moment the merit of a debate. Forget whether he or she is right or wrong. We should follow the rules of procedure in this place. That is my lofty preamble on what committees do.

Should this bill be sent to committee, I think the committee would have a very large task in taking subsection (10) of section 515 of the Criminal Code and morphing it on to subsection 515(6).

I would be very open to hearing the other comments of hon. members and from witnesses with respect to whether such amendments would be in order. I too have grave misgivings, as I think now the mover of this bill has about the efficacy of the bill as presented.

I too have sought the opinion of crown prosecutors who I respect. They too have suggested that Bill C-519, the amendment of subsection (10) to add (10.1) to section 515 of the Criminal Code would impose a positive obligation on the Crown to do something and that is to produce all the evidence it has. This was not there before.

In effect, it is a good case of a well intentioned bill actually doing harm to the process. I think it is important. What I mean by this is that the mover of the bill moved quickly from saying that the bill is meant to do this, but now he has talked to prosecutors and he wants to do something else.

Clearly, at committee we would be open to that and that is fine. It is important to lay down the tracks that Bill C-519, as presented, is fatally flawed if we stay within subsection 515(10) or try to add to it.

I want to explain it as simply as I understand it. We are talking about an application for judicial interim release, which must happen sometime between 24 hours and 3 days after individuals are charged and detained of an offence involving a serious personal injury as the facts present here, that is, if they assault someone, typically a spouse.

If they do this on a Friday night, then they will have a bail hearing, depending on the jurisdiction and the availability of judges, for judicial interim release on the Sunday or the Monday, who knows, and at that hearing now the Crown does not have a positive obligation. It is not required to show the judge all the evidence it has to support why the person should not be released. The Crown must only make the case or show cause as to why the person should be detained.

There are many elements in the Criminal Code that suggest that if a person is a flight risk, will do harm again, is under a certain warrant of arrest now or is under certain obligation from the court by way of charge, then he or she should be detained. That is the show cause part of it.

With respect to certain offences, more grave offences, and this is where the member is going but he did not pigeon hole it in his bill, there is an onus on the accused to show why they should be released. That has been the law for some time. To label it a reverse onus right away and to say that this is something new, I do not think is productive to our criminal law evolution but it is in the Criminal Code. It has been for some time, that on very serious offences the accused must show cause why they should be set free.

If that is where we are going to go in committee, I welcome the discussion. Let us hear the evidence. Let us look at the other offences that are included in subsection 515(6) and see whether the serious personal injury offence fits within the tenure of those offences, if they are adequately serious with respect to the other offences. Let us hear the testimony from crown prosecutors as to how this will affect their everyday work.

Bill C-519, as it exists, burdens prosecutors and may in fact, by having them show evidence that they are not ready to present, damage further investigation or the leads that they have with respect to other crimes.

It may in fact lead to the anomalous situation where in order to get the order for detention, crown prosecutors would have to give a file to a judge which is virtually empty and if a fact scenario of a crime was committed on a Friday and on Sunday morning one expected a file replete with witness statements, medical information and other information, one is dreaming to think that would happen. That is not efficacious.

The spectre of having the victim be the evidence by giving viva voce evidence, a hearing to remand the person who beat her up three days earlier, is completely out of the norm of what we would expect with respect to respect for victims rights.

The law, as drafted, and I commend my hon. friend for his intention, is fatally flawed. If at committee we hear evidence that serious personal injury is in the realm of the other offences identified in subsection 515(6), then the committee, if it gets to work, if the backlog, the log jam or legalistic haranguing is gone, if we can get down to business as we did for two years previous, then we can look at this bill and maybe we can fix it.

With that, in conclusion I would like to say that the book called the Criminal Code is an organic thing. It has been with us a long time and it is probably one of the best things that has come out of our marriage between a common law jurisdiction and our vicinity or neighbourhood with the civil law of France and the civil code, and our proximity to the United States frankly. It is somewhere in the middle of the U.S. criminal codes and the common law in Europe as we took it in around 1867, and it is ours.

If we look at it, and the public should know, there is hardly anything really new that can be added to the Criminal Code. It grows like a plant and what we are trying to do here is see if the horrible crime that my friend describes can be put into this organic document, and it can be made sense of. It has to apply, with all respect, to every fact situation involving a serious personal offence and not just a heinous and egregious crime that he described, and to which he was so close personally.

I will do my part, this is a private member's bill, to ensure to the hon. member that the committee gets working, that his bill gets sent to committee, and that we try to save it and to do justice to the memory of Michelle. We want to ensure other victims, who will be hopefully helped by the fact that we did our work here on this night in Parliament, that the committee tomorrow or the next day will do its work.

Topic:   Private Members' Business
Subtopic:   Criminal Code
Permalink

April 9, 2008