Bill C-75 (Historical)

An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts

This enactment amends the Criminal Code to, among other things,
(a) modernize and clarify interim release provisions to simplify the forms of release that may be imposed on an accused, incorporate a principle of restraint and require that particular attention be given to the circumstances of Aboriginal accused and accused from vulnerable populations when making interim release decisions, and provide more onerous interim release requirements for offences involving violence against an intimate partner;
(b) provide for a judicial referral hearing to deal with administration of justice offences involving a failure to comply with conditions of release or failure to appear as required;
(c) abolish peremptory challenges of jurors, modify the process of challenging a juror for cause so that a judge makes the determination of whether a ground of challenge is true, and allow a judge to direct that a juror stand by for reasons of maintaining public confidence in the administration of justice;
(d) increase the maximum term of imprisonment for repeat offences involving intimate partner violence and provide that abuse of an intimate partner is an aggravating factor on sentencing;
(e) restrict the availability of a preliminary inquiry to offences punishable by imprisonment for a term of 14 years or more and strengthen the justice’s powers to limit the issues explored and witnesses to be heard at the inquiry;
(f) hybridize most indictable offences punishable by a maximum penalty of 10 years or less, increase the default maximum penalty to two years less a day of imprisonment for summary conviction offences and extend the limitation period for summary conviction offences to 12 months;
(g) remove the requirement for judicial endorsement for the execution of certain out-of-province warrants and authorizations, expand judicial case management powers, allow receiving routine police evidence in writing, consolidate provisions relating to the powers of the Attorney General and allow increased use of technology to facilitate remote attendance by any person in a proceeding;
(h) re-enact the victim surcharge regime and provide the court with the discretion to waive a victim surcharge if the court is satisfied that the victim surcharge would cause the offender undue hardship or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender; and
(i) remove passages and repeal provisions that have been ruled unconstitutional by the Supreme Court of Canada, repeal section 159 of the Act and provide that no person shall be convicted of any historical offence of a sexual nature unless the act that constitutes the offence would constitute an offence under the Criminal Code if it were committed on the day on which the charge was laid.
The enactment also amends the Youth Criminal Justice Act in order to reduce delays within the youth criminal justice system and enhance the effectiveness of that system with respect to administration of justice offences. For those purposes, the enactment amends that Act to, among other things,
(a) set out principles intended to encourage the use of extrajudicial measures and judicial reviews as alternatives to the laying of charges for administration of justice offences;
(b) set out requirements for imposing conditions on a young person’s release order or as part of a sentence;
(c) limit the circumstances in which a custodial sentence may be imposed for an administration of justice offence;
(d) remove the requirement for the Attorney General to determine whether to seek an adult sentence in certain circumstances; and
(e) remove the power of a youth justice court to make an order to lift the ban on publication in the case of a young person who receives a youth sentence for a violent offence, as well as the requirement to determine whether to make such an order.
Finally, the enactment amends among other Acts An Act to amend the Criminal Code (exploitation and trafficking in persons) so that certain sections of that Act can come into force on different days and also makes consequential amendments to other Acts.

National Defence Act

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, it is true that the record of the current government has not been a particularly positive one when it comes to standing up for victims. The fact that we have now waited three years for this bill to be introduced is instructive.

We see another bill before the House right now, Bill C-75, which would water down sentences for serious indictable offences. We saw the government defeat a private member's bill, introduced by the hon. member for Beauport—Côte-de-Beaupré—Île d'Orléans—Charlevoix, Bill C-343, which would have made the victims ombudsman truly independent by making the position an independent officer of parliament rather than one housed within the Department of Justice. Finally, we saw the failure of the current government to fill the victims ombudsman position for nearly a year.

Contrast that with the prisoners ombudsman. It took the government a matter of two weeks to fill the position of the prisoners ombudsman. It was two weeks for the prisoners ombudsman and one year for the victims ombudsman. It speaks to the priorities of the government.

[Garnett Genuis, Conservative, Sherwood Park—Fort Saskatchewan, AB]

Madam Speaker, it is a great honour for me to rise in the House to debate Bill C-77.

I would like to begin by thanking the previous Conservative government for its excellent work on the Canadian Victims Bill of Rights, which was an important first step in advancing victims' rights in Canada. Next, I would like to thank the former minister of justice in the Conservative government, Peter MacKay, for his excellent work on the act that enacted the Canadian Victims Bill of Rights. Finally, I would also like to thank the previous minister of national defence, Jason Kenney, for his work on the Victims Rights in the Military Justice System Act.

Unfortunately, this last bill did not reach second reading stage. These two bills prove that the previous Conservative government has always been committed to defending victims, and that the Conservative Party will always uphold this principle in its justice policies. Unfortunately, that is not the case for the Liberal government.

The current government introduced Bill C-75, which reduces penalties for offences such as membership in a criminal organization and administering a noxious thing. This government is also the one that refused to send Terri-Lynne McClintic, a child murderer, back to prison. It was also this government that awarded benefits intended for veterans to the man who killed Constable Campbell. Meanwhile, the Prime Minister was telling veterans that they were asking for too much. This government always seems to side with criminals, even when the right thing to do, morally speaking, seems obvious.

This bill is very important to victims' rights in Canada. It provides victims with very important protections. For instance, the bill guarantees victims' privacy in crimes of a sexual nature. It also provides additional protections for victims under the age of 18. Thus, the bill will protect the rights of vulnerable witnesses by allowing them to testify using a pseudonym and providing them with other supports.

These are important reforms, because they provide victims with the resources they need to understand the legal process and feel safe as the process unfolds. It is also important to show victims that they are not alone and that people are available to help them through this extraordinarily difficult time.

Looking at Bill C-77, it is quite clear that the Liberals took inspiration from the previous Conservative government. The wording of the bill is identical to that of the bill introduced by the previous Conservative government. I am very pleased that the Liberals have decided to copy the Conservative bill. That was the right thing to do, and it would be nice if they did more of that.

Obviously, the Conservative Party and the Liberal Party are not the same, so the two bills do have some differences, although they share the same objectives. That is why I would like to see this bill referred to committee, so we can look at how to improve it and come to an agreement between the Liberals and Conservatives.

This bill is a good start, and I would like it to go to committee so it can be improved.

The committee should also study this bill carefully to ensure that each provision complies with the Constitution and the Canadian Charter of Rights and Freedoms, and to ensure that there are no deficiencies in this bill.

I hope that the committee will make substantive amendments to improve the bill.

I will vote in favour of this bill, so that it can be sent to committee for a more thorough review.

We have a bill here, Bill C-77, that adopts in many respects the work done in the previous Parliament by the then defence minister and future premier of Alberta, Jason Kenney. The bill began a process, and it is good to see that occasionally the Liberal government sees the wisdom of continuing the good work Conservatives have done. The Liberals have often been reluctant to recognize the heritage they bring forward in these cases, but nonetheless, we will accept that even if they need to engage in some reinvention of the record about the trajectory of this issue, we see some progress being made on initiatives that were carried out previously.

The unfortunate thing about the current government is that this one bill dealing with the rights of victims is so out of step with the vast majority of the Liberals' agenda. It is curious to hear members of the government talk about victims, because in so many other debates on so many other bills we deal with in the House—sometimes on opposition day motions that we put forward, as well as legislative initiatives—we hardly hear the Liberals talk about the rights of victims.

There are many issues where we need to recognize the problems specifically created by the current government when it comes to the rights of victims. We see legislation coming forward to weaken sentencing. We see perverse outcomes and the failure of the government to intervene. I note in particular the opposition day motion that we put forward that no members of the government had the courage to vote in favour of, even though I am sure they were hearing from their constituents about it. Coming off a constituency work week, that is one of the things I was hearing about again and again from different constituents. Many people were very engaged with the particulars of that issue, because they understood that having a convicted murderer in a facility where there is no fence and children are present is obviously inappropriate. I think Canadians of all backgrounds and all political persuasions understood that, but unfortunately our colleagues across the way do not seem to share in it. We did not see a single Liberal stand up for the protection of society and for victims in that case. They could have done much better; unfortunately, they did not.

There are other areas where we see a lack of regard for the protection of victims, namely the backlogs that the Liberals have allowed to emerge in our justice system. My colleague from St. Albert—Edmonton raised this issue right at the beginning of this Parliament, the fact of court delays and the lack of a government response to actually do its job of ensuring that we have judges in place so that cases can move through in a timely way and that people who have committed a crime actually pay the consequences. We have seen this problem exacerbated by the continued lack of effective response by the government. This is important to Canadians and to victims. Of course, we have the failure of the government to effectively respond to the issue of ISIS or Daesh fighters who are coming back to Canada. Again, the government has not responded by taking seriously the needs of society and potential victims, and so forth.

While I am pleased to support Bill C-77 through to committee, I wish that the Liberals would adopt more of our Conservative legislation and more of our respect for victims. I will not hold my breath, but here is hoping.

Public Safety

[Marilyn Gladu, Conservative, Sarnia—Lambton, ON]

Mr. Speaker, I have a petition in regards to Bill C-75, an enormous 302-page omnibus bill, which proposes lightening sentences on such things as obstructing or violence to or arrest of officiating clergymen participating in terrorist activities, impaired driving causing bodily harm, polygamy, marriage under the age of 15 years and forcible confinement of minors.

The petitioners call on the Prime Minister to defend the safety and security of all Canadians as well as the rights of victims by withdrawing Bill C-75.

Justice

[Jody Wilson-Raybould, Liberal, Minister of Justice and Attorney General of Canada]

Mr. Speaker, without question, our hearts go out to the family of Constable Beckett in this tragedy.

I will say that our government is incredibly proud to have introduced and passed legislation that is among the toughest impaired driving laws in the world. I will say, with respect to Bill C-75, that it does not in any way, shape or form change the principles of sentencing, which are proportionate to the gravity of the offence and the grave responsibility of the offender.

What Bill C-75 does is that it gives prosecutors the necessary discretion to determine—

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, Constable Sarah Beckett paid the ultimate sacrifice when she was killed in the line of duty by an impaired driver.

This week her husband, Brad Aschenbrenner, spoke out against Bill C-75, which waters down sentences for impaired driving causing bodily harm.

Will the Liberals listen to Sarah's husband and other victims, and remove from Bill C-75 the watering down of sentences for this serious crime?

Divorce Act

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, I appreciate my colleague's comments regarding Bill C-75.

in the course of the member's speech, he talked about the fact that in most circumstances it is in the best interests of the child to have both parents involved in the child's development and for there to be ongoing contact and support with both parents. One of the criticisms some have put forward with respect to Bill C-78 is it would not provide for a presumption of shared parenting. As the hon. member for Carlton Trail—Eagle Creek noted, sometimes shared parenting is not in the interests of the child. Would the member agree that perhaps one flaw of the bill is that it does not contain a provision for a rebuttable presumption for shared parenting?

[Kerry Diotte, Conservative, Edmonton Griesbach, AB]

Mr. Speaker, as I have said about the bill, it is largely laudable. The unified court is a good thing.

Again, we have to hold the interests of the child at heart. That is the best part of the bill. Divorces can absolutely ruin children for life. I think we are on the right track, but we should also be consistent. If we are looking out for the interests of the child, let us look out for the interests of the child not just in this bill but also in Bill C-75.

[Kerry Diotte, Conservative, Edmonton Griesbach, AB]

Mr. Speaker, we all know that divorce is a very terrible thing. It can be a traumatic experience for families, children and parents. However, when it does occur, it really is imperative that the best interests of children should be at the heart of any divorce proceeding they may be caught up in.

According to the 2016 census, more than two million Canadian children are now living in separated or divorced families and 38% of the five million separations and divorces in Canada between 1991 and 2011 involved a child. Therefore, divorce has, sadly, become a regular part of the lives of everyday Canadians. With this legislation, we really have a duty to try to minimize the trauma of divorce as much as possible, especially on children.

Overall, the intention of Bill C-78 is good. I am especially glad to hear the legislation will be centred on the child. Too often, children become pawns in bitter divorces. We have all heard those heart-wrenching horror stories.

A woman near and dear to my heart has been going through a living hell, battling to get what is best for her daughter for years after her divorce. Under shared custody, the daughter was succeeding in school and attending regularly, especially when she was at her mother's home. However, at subsequent family court appearances, the daughter's dad managed to convince the family court it would be in the best interest to have the daughter spend all of her time at his residence. After that happened, the teenage daughter's marks plummeted. She missed a ridiculous amount of school and got into trouble with police. It is a very sad story.

Despite fighting tirelessly in family court, this woman's daughter is now hopelessly alienated because one parent wanted to punish the other. This child was used as a weapon and essentially brainwashed by one parent to punish the other parent. This daughter will now no longer speak to her mother, her grandmother, her aunts, uncles or young nieces and nephews, who absolutely adore her.

Alienation is one of the most terrible things that can be inflicted upon a child. It is something that can literally ruin a person's life and could take years of psychological help to overcome.

Part of the problem I have witnessed in family court is people who appear there do not even testify under oath. Remarkably, there is no requirement to actually tell the truth. Therefore, how can a judge truly make a correct decision in the best interests of the child if there is little or no ability to compel people to tell the truth? It is really quite ludicrous and it is no wonder that some people criticize family courts as kangaroo courts.

That is also why subsection 16(10) of the act is an important first step and states the principle that children should have as much contact with each parent within the confines of their best interest. It also takes into account the willingness of the parent to facilitate visitation as a consideration in custody disputes. It is a move that will penalize parents who, for petty reasons, try to limit visitation and access of the child or children to the other parent. It is a positive first step to ensure that even in acrimonious divorces, the best interests of the child are always first and foremost, and that is as it should be.

Promoting the use of alternative dispute resolutions, such as divorce mediation, to settle divorce cases is also an encouraging move. It should help make divorce proceedings as amicable as possible in very bitter situations at times.

Being caught up in the middle of an acrimonious divorce is never in the best interests of children. Therefore, taking steps to create a valuable alternative to litigation in family court is a sensible idea. It obviously would not solve the worst of cases, like the case I mentioned, but it is a start. If done correctly, it could have a meaningful impact for millions of Canadians.

Ultimately, Canadian children are best served when the custody and divorce proceedings are as harmonious as possible, with both parents having a meaningful relationship with their children.

A third important part of the legislation is the introduction of measures on combatting domestic violence and child abuse. That is a laudable goal. Having dispute mechanisms and courts taking into consideration domestic violence and child abuse is imperative, considering the move to a more dual parenting framework.

As I stated before, it is always in the best interests of the child to have both of their parents having meaningful relationships. That, however, is definitely not the case in situations where one of the parents is violent, neglectful or abusive. I see the government is committed to creating 39 new judicial positions in Alberta, Ontario, Nova Scotia and Newfoundland and Labrador. That is another positive step, especially considering the extraordinarily slow pace the current government has taken in appointing badly needed new justices and judges. Let us certainly hope they appoint them a lot faster than they have been filling other judicial vacancies.

Unfortunately, my colleagues across the aisle's support of the best interests of children rings somewhat hollow. Let us talk about another case from the headlines about which everybody is talking.

It is the case of Terri-Lynn McClintic, a convicted child murderer who is now living at a healing lodge. Canadians are saying, loudly and clearly, that she should be back behind bars. The Liberals are refusing to act on that, saying that the Conservatives are ambulance chasers, that we are just creating this whole controversy and that it is very low of us. However, all we are doing is reflecting on what the father wants. He has spoken about it very clearly on CBC and other media.

For instance, I just am not sure how it can be said that promoting the best interests of the child is best served. She was murdered. The Liberals talk about promoting the best interests of the child in this legislation, yet her murderer is not even behind bars. She is in a healing lodge. Would Tori's best interests not be ensured by her murderer being held behind bars?

I also do not see how having a child murderer at a healing lodge is in the best interests of the children who are often present there, yet this is the position the members across the way supported in votes. It is really enraging Canadians. One day there is what seems to be a flippant disregard for what is Tori Stafford's best interests and the best interests of children at that healing lodge. Then on the next day we hear the Liberals' talking points about this bill and how much they care about children. It is rather shameful, to be honest.

This is also the case with Bill C-75, the government's new crime bill. Again, l am not sure how many parts of that bill mesh with the priority of the best interests of the child, which my colleagues across the aisle seem to believe today. How is giving a mere fine in the best interests of children who are forced into marriage, or marriage under the age of 16 or the abduction of a child under the age of 16? How does that act in the best interests of the child? I fail to see that.

How do any of these reforms put the interests of the child first? Very simply put, I do not believe they do and that it is not the government's position. If the minister would like to truly put children first, as she should, I recommend she do so in a consistent manner and go forward from there.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Mr. Speaker, of course. I would like to salute my colleague, as I have not yet had a chance to say hello to her since we returned from the summer break. I think my colleague is doing a great job.

I can certainly imagine that, much like the Conservatives, New Democrats recognize the fact that the Liberals are putting child protection at the centre of their bill, along with the needs of the child and the repercussions children can suffer during a nasty divorce. The Liberals want to put the protection and well-being of children at the centre of their bill. That is great, and all members of the House of Commons agree on that.

We also look forward to seeing how this all unfolds at committee. As they say, the devil is in the details. I never thought I would say that here. This is a lengthy bill, which we will study in committee. I look forward to hearing what our expert witnesses have to say. This is a very important bill that amends the Civil Marriage Act, which has not been amended for 20 years.

We have some concerns regarding clauses 54 and 101. As I said, I am a little apprehensive. As I emphasized a few times during my speech, with all due respect, the Prime Minister has not honoured his commitment, his marriage to the people of Canada. He has broken most of the promises he made to Canadians when he married them, so to speak, in 2015, at the time of his election. There is a parallel here; it is a parable.

I agree with my colleague that the child must absolutely be front and centre. That is not what we see in Liberal Bill C-75, which seeks to reduce sentences for offences committed against children. We think that is unfortunate.

[Alupa Clarke, Conservative, Beauport—Limoilou, QC]

Mr. Speaker, I can understand my colleague's concern. I did have a point I was getting at. I want to talk about clauses 54 and 101 of Bill C-78 and how they contradict Bill C-75.

However, I was talking about something that is very important to me. I will use a different analogy. Let us leave NAFTA behind for a different analogy.

We have a Prime Minister who introduced Bill C-78, telling Canadians that after 20 years, he is proposing important amendments, some fundamental and others more technical, that will strengthen the legislation and the institution of marriage in Canada.

Notwithstanding the fact that we Conservative members plan to support this bill, following the committee studies, we feel it is hard to trust the Prime Minister when he says he wants to strengthen marriage, considering his behaviour as the head of government.

For example, when Mr. Trudeau was elected in 2015, we might say that it was a marriage between him and the people of Canada. However, after everything that the Prime Minister has done in the past three years, a marriage would not have lasted a year since he broke three major promises. I would even say that these are promises that break up the very core of his marriage with Canada. I will get to the clauses in this bill that have me concerned, but I want to draw a parallel. How can we trust the Prime Minister when it comes to this divorce bill, when he himself does not keep his promises to Canadians?

He made three fundamental promises. The first was to run deficits of only $10 billion for the first three years and then cut back on that. He broke that promise. The deficits have been $30 billion every year.

The second fundamental broken promise of his marriage with the people of Canada was to achieve a balanced budget by 2020-21. Now we are talking about 2045, my goodness. Is there anything more important than finances in a marriage? Yes, there is love. I get it.

However, budgets are essential in a home. Finances are essential for a couple to remain together. I can attest to that. Love has its limits in a home. Bills have to get paid and children have to eat. Budgets need to be balanced, something that Canadian families do all the time. Our Prime Minister is unable to keep that promise.

The other promise has to do with our voting system, how we are going to run our home, our political system. Just before they got married, the Prime Minister promised Canadians that he would reform the voting system. That was a key promise and he broke it. In fact it was one of the first promises he broke and it is a serious broken promise in his marriage with Canadians in my opinion. It is a broken promise to every young person who trusted him.

Personally, I completely disagree with reforming the voting system because I believe that the first past the post system is the best guarantee for a parliamentary democracy. That said, it was a key promise that he made to youth and the leftists of Vancouver, Toronto and Montreal, who view proportional representation as being better for them, their future and their concerns. However, he broke his promise. The marriage has been on the verge of breaking up for a long time now. I predict that it will only last one more year.

I have one last point to make in my analogy and then I will discuss the bill. I want to talk about his infrastructure promise. The Prime Minister said that he would invest $183 billion in infrastructure over the next 14 years. It was the largest program in the history of Canada because, according to the Liberals, their programs are always the largest in the history of Canada. I would remind members that ours was incredible as well, with $80 billion invested between 2008 and 2015.

I will ask my colleagues a question they are sure to know the answer to. How many billions of the $183 billion have been spent after four years? The answer is $7 billion, if I am not mistaken. Even the Parliamentary Budget Officer mentioned it in one of his reports.

Therefore, how can we have confidence in the Prime Minister, the member for Papineau, who is introducing a bill to strengthen the institution of marriage and the protection of children in extremely contentious divorces when he himself, in his solemn marriage with the Canadian people, has broken the major promises of his 2015 election platform?

The bond of trust has been broken and divorce between the Liberals and the people of Canada is imminent. It is set to happen on October 19, 2019.

Bill C-78 seeks to address some rather astonishing statistics. According to the 2016 census, more than two million children were living in a separated or divorced family. Five million Canadians separated or divorced between 1991 and 2011. Of that number, 38% had a child at the time of their separation or divorce. I imagine that is why the focus of Bill C-78 is protection of the child.

However, we have some concerns. Clause 101 introduces the idea that Her Majesty ranks in priority over the party that instituted the garnishment proceedings if the debtor is indebted or has any moneys to pay. That has us concerned. We will certainly call witnesses to our parliamentary committee to find out what they think and to see if we can amend this.

We also believe that clause 54 is flawed. It extends Her Majesty's binding period from five to 12 years. That is another aspect of the bill that could be problematic in our view.

I do not like to end on a negative note, but I absolutely have to mention a major contradiction pertaining to Bill C-78. Today, the Liberals enthusiastically shared with us, through this bill, their desire to make the protection of children, rather than parents, a priority in cases of divorce. However, when we look closely at Bill C-75, which, with its 300 pages, is a mammoth bill if ever there was one, we see that it seeks to rescind all of the great measures to strengthen crime legislation that our dear prime minister, Mr. Harper, implemented during his 10 years in office, a fantastic decade in Canada.

We are distressed to see that this bill lessens sentences for crimes committed against children. The Liberals are not content with just saying that they are good and the Conservatives are bad. They, who profess to believe in universal love, want to lessen the sentences for criminals who committed terrible, deplorable crimes against children. Then they tell us that the purpose of their bill is to help children.

We see these contradictions and we are concerned. I do not think that my constituents would let their spouses break promises as important as the ones the Prime Minister has broken since 2015. They would not want to stay in a relationship like that.

Canadians need to realize that their divorce from the Liberal government is imminent.

[John Brassard, Conservative, Barrie—Innisfil, ON]

Mr. Speaker, there is no argument to a question like that. I think throughout the history of our country it has been the responsibility of all governments to look after our children to make sure that we have a safe and secure environment for not only them but families, understanding that we need to make sure that there is a responsibility on the part of parents to be looking after their children. Not all of that responsibility lies on the part of the government. At least that is a fundamental belief that I have. We need to encourage parents to accept the responsibility of parenthood.

I will say in contrast to that that there are some difficulties and some hypocrisy on the part of the government, specifically as it relates to Bill C-75 where it has made some changes that directly impact crimes against children. However, I do not want to get into the weeds on Bill C-75.

Absolutely governments across this country, and throughout the history of this country, have always believed in the rights of children while making sure that we have a safe and secure environment for children and families as well.

[Sylvie Boucher, Conservative, Beauport—Côte-de-Beaupré—Île d’Orléans—Charlevoix, QC]

Mr. Speaker, I thank my colleague for his question.

A lot of numbers have been thrown around. I agree that people who owe payments must make them, but incentives are needed. Personally, I think Bill C-78 is a pretty good bill. However, it does have two points that contradict one another, and I wonder whether my colleague is aware of this.

Bill C-78 is really about children. It puts them first. However, Bill C-75 flies in the face of Bill C-78.

That bill proposes reducing sentences in cases of very serious crimes, such as kidnapping a child under the age of 16 and concealing the body of a child.

When proposing a bill pertaining to divorce, it is important to remember that, in some cases, parents commit serious acts of violence. That is a fact, and it happens everywhere. There was Dr. Turcotte's case in Quebec, for example.

How can we have both Bill C-78, which puts children first, and Bill C-75, which reduces sentences for people who use violence against those same children?

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I confess I find the member's comments quite puzzling. To draw an analogy between this legislation and the Titanic is preposterous, because we had widespread consultations and have since received vociferous support from coast to coast to coast for this legislation. The Conservative government in Alberta is the very government that initiated the concept of changing the terminology from “custody and access” to “contact and parenting” orders.

The member raised Bill C-75 and some of the provisions in it that she finds logically inconsistent with what we are doing in Bill C-78. It is quite the contrary. In Bill C-75, we are doing exactly the same as we are doing in Bill C-78 in two important respects. One, intimate partner violence is at the heart of what we are doing in Bill C-75. We are addressing it and would make it a prerequisite to deal with that as a condition on bail. What we are doing here is making family violence something that a judge would have to consider, including criminal orders or proceedings, in determining the best interests of the child.

The other conceptual component that is exactly the same between the two pieces of legislation is that in each instance we are trying to reduce the very backlog in our court system that my friend opposite laments, our over-reliance on the court system, the over-litigiousness of Canadian society. We would be reducing that with Bill C-75, and exactly what we would be doing here with this provision. Two cases in point are the ADR mechanisms for calculating support.

Could I have the member opposite's comments on how improving ADR mechanisms addresses the very problem she has identified?

[Cathay Wagantall, Conservative, Yorkton—Melville, SK]

Mr. Speaker, I will be sharing my time with the member for Banff—Airdrie.

I am pleased to rise today to speak to Bill C-78. I do not come at this from a legal perspective—I am not a lawyer—and I do not come at it from the perspective of actually having experienced this directly. I was raised in a home with six children, a very happy, very busy home, and then when my parents were much older in life and I was a grown woman myself, they faced a difficult time when they came very close to divorcing. I have to say that even then, as an adult and with my own children, it was extremely unnerving and disturbing to me, which just raises the realization of how important it is that we have systems in place to assist children. I cannot imagine what it would have been like to actually be dealing with those circumstances as a young child in my home. Fortunately, things worked out well.

That being said, in regard to Bill C-78, I appreciate the four key objectives that are listed: to promote the best interests of the child; to address family violence; to help reduce child poverty; and to streamline various definitions and processes but, more important, to require legal professionals to encourage clients to use alternative ways to resolve disputes.

The Conservative Party has always had this perspective that we believe that in the event of a marital breakdown, the Divorce Act should grant joint custody and/or shared parenting, unless it is clearly demonstrated not to be in the best interests of the child. Both parents and all grandparents should be allowed to maintain a meaningful relationship with their children and grandchildren, unless it is demonstrated not to be in the best interests of the child. In every case where it is possible, the influence of both parents, and grandparents as well and siblings, is so key to making sure that the family unit is able to survive as best as it can through these difficult circumstances. We understand very well how traumatic divorces are on families.

We are overall pleased with the intentions of Bill C-78, especially the promotion of child welfare and the measures to combat family violence. We have always stood up for and believed in the safety and well-being of children and of families.

However, where this goes off the tracks for me is in the fact that the counterintuitive implementation of Bill C-75 is here as well. I know that Canadians' heads are spinning quite often when trying to determine, if this is a whole-of-government approach to things, how it is on the one hand we can be saying we are so concerned about children and then on the other hand be bringing in Bill C-75, which would reduce sentences for very serious crimes, including abduction of a child under the age of 14, participating in activities of a criminal organization, forced marriages, marriage under the age of 16, and concealing the body of a child. These are very serious crimes and impact children, yet the government seems prepared to bring in something that seems so contrary to me.

I want to quote something from the Lawyer's Daily, written by David Frenkel:

The impetus in the fights between parents does not begin when spouses read the terms “custody” and “access” in the Divorce Act. Therefore, unless there are additional provisions added to the proposed amendments, the family conflicts will likely continue even with the replacement of the terms “custody and access” with “parenting” as introduced by Bill C-78.

I appreciate what is being attempted there with the terminology being changed, but at the same time that is a good point, that simply changing the terminology will not in the end make a huge difference. Mr. Frenkel continues:

[A] “parenting order” will replace the traditionally named “custody and access” order.

That needs to be done, but actually it has already been taking place. He says:

The significant change in wording likely arose to answer the concerns from the courts over the years that awarding one parent the status of “custody” and the other “access” created unnecessary winners and losers.... [A]s early as 1975 Justice Robert Furlong...wrote as follows: “The time is long past when the Courts disposed of the custody of a child as a reward to a well-behaved parent or as a punishment to one who misbehaved. The custody of their children is not a prize to be contended for by parents as an award for their good behaviour.”

He continues:

In 1986, the Manitoba Court of Appeal upheld a decision to refrain from using the words “custody” and “access” because the trial judge thought “those are destructive to a child”.

He also states that perhaps the more important focus of this discussion should be the issue of “control”, as that, unfortunately, quite often is what the fights are about in these circumstances.

He continues:

Litigants, in time, will become sophisticated in understanding the effect of a future “parenting order” and couples that previously fought incessantly over the term custody will now fight over who will have “decision-making responsibility.”

In other words, although that is part of it, how can we come to a point where the extreme difficulties in making these decisions are not fought out in such a confrontational way?

He goes on to say:

Therapy and assessment orders for litigants will not solve all the problems in custody battles, but they may expose the underlying factors contributing to unreasonable positions taken by them. Therefore, in addition to a change in language to the Divorce Act, it may be necessary for a court to have the jurisdiction to order trained professionals to determine and opine whether a parent's desire for custody or a ”parenting” order is based on healthy motives or not. And if such information cannot be readily available when needed, then simply repealing the terms “custody” and “access” may not achieve the intended consequences we all have been waiting for with Bill C-78's introduction.

In other words, efforts need to be made to ensure that the individuals who are involved in these circumstances have the necessary tools at their disposal to assist them in the process more effectively. There is no question that this is probably one of the most trying and difficult circumstances to be in for a couple who at one point married because of their desire to see their life as a long-term commitment and to have children. Yes, sometimes there are very violent circumstances. Other times there is an inability to communicate. However, there needs to be a process in place to assist them.

Further to that, I read an article by Robert Harvie, a family lawyer, mediator and arbitrator with Huckvale LLP, an advisory board member for the national self-represented litigants project, and a past Law Society of Alberta bencher. Harvie comes at this from a very well-rounded perspective. He states:

The unveiling of Bill C-78 received almost uniform praise from the media and legal profession as the “first major amendment of the Divorce Act in 20 years.”

Indeed, it is.

He continues:

My opinion is less effusive. Perhaps it's the cynicism of a lawyer who has been working in family law for 32 years. Having sat as a bencher with the Law Society of Alberta, and in fact, chaired their Access to Justice Committee for two years, I have seen much promise and very little delivery in improving access to justice. As a result, I opened up the 190 pages of Bill C-78 with less optimism than many of my colleagues.

He says it is “similar to the excitement over the maiden voyage of the Titanic”, which piqued my interest. With respect to the Titanic, he talked about all of its amazing additions to improve its amenities and necessities, such as squash racquets courts, baths, a gymnasium, a swimming pool, electric passenger lifts, all these of different services, including more deck chairs, to make the trip better. However, the reality was that they did not have what they truly needed.

He indicates that, at its core, Bill C-78 is devoid of change to the overall resolution process, that lawyers charge too much money, that law societies appear focused on reducing complaints rather than caring for them, that litigation is antiquated and cumbersome, and that we need to fund and support more alternative forms of resolution.

I have a good friend who settled many divorce and custody cases for his law firm out of court and without expensive litigation. However, he lost his job. Why? It was because he did not have enough billables and was not productive enough for the firm. In other words, he did not make enough money for the firm. He was encouraged to work for legal aid, because that was where he belonged.

Our legal system needs to change so that firms invest in litigating these cases through mediation and arbitration. Yes, we can tell people that they should go and do this, that they should make this choice, but they usually first find themselves at a law firm. I would like to see this concern addressed within the legal profession in Canada, where we make this a priority and prepare our lawyers, who are clearly willing to take on this type of roll to serve Canada, and especially to serve children.

[Arif Virani, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the hon. member for Willowdale, who happens to be an old high school classmate, gave us a very comprehensive overview of Bill C-78. He touched on many different facets, so I would ask if he could zoom out a bit and provide us with his insight on how the bill fits in with some of the broader initiatives our government is pursuing. There are two I would ask him about.

We heard about how the bill impacts on child poverty. How does that fit with some of the government's broader objectives of addressing child poverty in Canada? We heard about how the bill would address family violence in a more direct way. How does that work with Bill C-75, which is before the justice committee, which my colleague is a member of, and the provisions that are being put in place in that bill to deal with intimate partner violence in the context of things such as bail conditions? Perhaps he could elaborate on the broader impact of what we are doing as a government.