Criminal Code
Bill to Amend — Third Reading — Motion in Subamendment—Vote Deferred —
Debate Continued
On the Order:
Resuming debate on the motion of the Honourable Senator Joyal, P.C., seconded by the Honourable Senator LaPierre, for the third reading of Bill C-250, to amend the Criminal Code (hate propaganda),
And on the motion in amendment of the Honourable Senator St. Germain, P.C., seconded by the Honourable Senator Stratton, that the bill be not now read a third time but that it be amended, on page 1, in clause 1, by replacing lines 8 and 9 with the following:
“by colour, race, religion, ethnic origin or sex.”
On the subamendment of the Honourable Senator Tkachuk, seconded by the Honourable Senator Gustafson, that the motion in amendment be amended by adding, before the words “ethnic origin,” the words “national or.”
The Hon. the Speaker pro tempore: Call in the senators. The vote will take place at 5:30 p.m.
Motion in subamendment negatived on the following division:
YEAS
THE HONOURABLE SENATORS
Angus Keon
Carney Lynch-Staunton
Cochrane Merchant
Comeau Plamondon
Cools Rivest
Di Nino Sparrow
Forrestall St. Germain
Gustafson Stratton
Kelleher Tkachuk—18
NAYS
THE HONOURABLE SENATORS
Adams Joyal
Atkins Kirby
Austin Lapointe
Bacon Lavigne
Callbeck Lawson
Chaput Losier-Cool
Christensen Maheu
Cook Mahovlich
Day Mercer
De Bané Moore
Fairbairn Morin
Ferretti Barth Munson
Finnerty Murray
Furey Phalen
Gauthier Robichaud
Gill Rompkey
Hubley Spivak
Jaffer Watt—36
ABSTENTIONS
THE HONOURABLE SENATORS
Corbin Sibbeston—2
Hon. Joyce Fairbairn: Honourable senators, I ask for leave to revert to Notices of Motions.
Hon. Jack Austin (Leader of the Government): Do we not continue the debate?
Hon. John Lynch-Staunton (Leader of the Opposition): We are on Bill C-250.
Senator Austin: We now go to the motion in amendment.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: No.
The Hon. the Speaker pro tempore: Leave is not granted.
Hon. Bill Rompkey (Deputy Leader of the Government): Honourable senators, there have been discussions. As I understand, we will continue debate on the motion in amendment to Bill C-250.
This is not a government bill; it is a private member’s bill. I would make a suggestion to find if there is consensus in the chamber to balance the two issues of the lateness of the hour and that senators wish to speak. There will be more time later to debate this bill.
I propose that we begin debate on Bill C-250 and continue until 6:30, at which time we then adjourn debate to the next sitting of the Senate, if that is agreeable.
The Hon. the Speaker pro tempore: Is it agreed, honourable senators?
Hon. Senators: Agreed.
Hon. W. David Angus: Honourable senators, I move the adjournment of the debate on Bill C-250.
The Hon. the Speaker pro tempore: It was moved by Senator Angus, seconded by Senator Stratton, that the debate be continued at the next sitting of the Senate.
Is it the pleasure of honourable senators to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Hon. the Speaker pro tempore: Will those honourable senators in favour of the motion please say “yea”?
Some Hon. Senators: Yea.
The Hon. the Speaker pro tempore: Will those honourable senators opposed to the motion please say “nay”?
Some Hon. Senators: Nay.
The Hon. the Speaker pro tempore: In my opinion, the “nays” have it. Resuming debate with the Honourable Senator Angus.
Senator Angus: Honourable senators, I rise this evening on the subject of Bill C-250, to amend the Criminal Code regarding hate propaganda, and on Senator St. Germain’s amendment to this bill.
When Bill C-250 was first introduced in Parliament, I was rather uneasy about it. I felt it to be bad law and not for the purposes intended, as honourable and sensitive as they may have been.
In my view, there are ample and effective provisions in existing Canadian law to protect all individuals on an equal level. This bill strikes me as unnecessary and one that has the potential to lead our justice system down a path that we do not necessarily wish it to follow. The bill could possibly open the floodgates to unintended and undesirable consequences. Indeed, it makes me think of the old maxim of inclusio unius est exclusio alterius, as well as the old adage that two wrongs do not make a right.
I concede that the purport of Bill C-250 is politically correct. However, it in fact tends to accomplish that which it is designed to protect against. It does not establish equality before the law, but rather it creates inequalities between people based upon differences. Bill C-250 raises issues fundamental to the basic fibre of our country.
Canada is a diverse, pluralistic and tolerant society, one of which we are all proud. As Canadians, we are proud of this rich tapestry, as it has come to be called. Our country and citizens welcome fundamental differences. We embrace variety and we cherish the cultural, racial and other diversity that defines our great nation.
Honourable senators, the underlying basis of our style of democratic society is that individuals are recognized as equal, with equal rights, and the relations and relationships amongst our people are governed by the rule of law. It is in my view difficult to find fault with the words of Thomas Jefferson, who, as we all know, was one the key architects of democracy, the democracy we know and practice here in North America today. He said that all men are created equal and that they are endowed by their Creator with inherent and inalienable rights and that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. I earnestly believe that if Bill C-250 were enacted as drafted this evening, our cherished equality, as spoken of by Thomas Jefferson, could be at risk. No one can deny there are bigoted people in our society that target others based on discriminating factors. These factors are as diverse and varied as our country and society.
I should like for a moment to share some personal elements from my own life. As I have said in this chamber before, I have a daughter who was not fortunate, who has a terrible affliction, a mental illness. I have spent many hours and days in a psychiatric acute care ward in Montreal where I have seen discrimination against an identifiable group, a member of which is my daughter. I have seen it over and over again outside the PACU and in schoolyards where people are different. They are not necessarily of a different sexual persuasion, but they are different from others and from what we call normal. Are they on the list; and, if not, why not and should they be? My reservations about Bill C-250 arise when we start carving out special protections for people with certain differences, ignoring others who also require such protections.
I truly believe this to be a slippery slope. It begs the question of criteria. What are the criteria for a group to become protected under section 318 of the Criminal Code? Presently, section 318 defines an identifiable group as any section of the public distinguished by colour, race, religion or ethnic origin. What are the criteria for a group to be identifiable and protected under this section? How does sexual orientation fit into it? What else could be added? What about severely handicapped individuals like my daughter or those other people who suffer from evident physical or mental disabilities?
Some people would argue that homosexuals should be protected because they are targets for hatred. This sadly is an unfortunate truth, but there are many other identifiable groups that are also frequent targets of hatred in this kind of terrible abuse. It is just impossible, honourable senators, in my respectful view, to identify all groups that are potential targets for hatred and to protect them accordingly, other than under the general Criminal Code and the time-tested laws we have in this country.
In my opinion, it is not the role of government today to carve out another group. This is a systemic problem that can only be alleviated as our society evolves and matures and becomes more sensitive and more tolerant about these kinds of matters.
Honourable senators, governments can only legislate legalities on matters of substance. They cannot and should not try to legislate attitudes. They cannot enforce tolerance, nor should they impose acceptance standards. I believe that what the supporters of this bill are looking for is a shift in attitudes toward gays and lesbians for political reasons, attitudes that cannot be achieved through this or any other decent legislation. Bill C-250 may well accomplish the opposite; in practice, it may actually deepen the divide between homosexual persons and the rest of our population. Categorizing homosexuality as identifiable will perpetrate all of the stereotypes and generalizations that gay and lesbian groups have fought so hard for so long to dissolve. Perhaps another bill should be introduced to amend the Criminal Code by removing entirely the concept of identifiable groups, but that is not the issue before us this evening.
Considering that what we have before us is a proposed amendment to Bill C-250 adding new groups to the list of identifiable groups set forth in section 318 of the Criminal Code, I think it is only appropriate that we as legislators take this opportunity to, at the very least, maintain a certain amount of consistency in our laws. Considering that the 1977 human rights legislation includes people with a pardoned conviction in the list of identifiable groups, is it not logical that pardoned convicts also be protected under section 318 of the Criminal Code? By all intents and purposes, pardoned convicts are as worthy of protection as any other identifiable group. They are the victims of discrimination, targets of hatred and abuse, and are vastly misunderstood. Oftentimes, their conditions stem from factors beyond their control, such as sickness or abuse. If anyone deserves protection, it is people who have served time sometimes unjustly and are trying to integrate back into society to be productive contributors.
The John Howard Society has laid out six main principles surrounding the rights of pardoned convicts and others who have become involved with the law. Those principles are as follows: First, people have a right to live in a safe and peaceful society as well as the responsibility implied by this right to respect the law. Second, every person has intrinsic worth and the right to be treated with dignity, equity, fairness and compassion without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability when involved with the criminal justice process — this list is worth considering for section 318. Third, all people have the potential to become responsible citizens. Fourth, every person has the right and responsibility to be informed about and involved in the criminal justice process. Fifth, justice is best served through measuresthat resolve conflicts, repair harm and restore peaceful relations in our society. Sixth, independent, autonomous, non-government voluntary organizations have a vital role in the criminal justice process.
Honourable senators, these are just some of the reasons why I am uneasy and feel that C-250 is bad law.
Motion in Subamendment
Hon. W. David Angus: If we go ahead with this bill, then I would propose a subamendment to Senator St. Germain’s main amendment. I, therefore, move, seconded by Senator Stratton: “That the motion in amendment be amended by adding, before the words ‘ethnic origin,’ the words ‘pardoned convicts,’.”
The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion in amendment? Do honourable senators wish to speak on the issue?
Hon. Anne C. Cools: Honourable senators, I move the adjournment of the debate.
The Hon. the Speaker pro tempore: It is moved by the Honourable Senator Cools, seconded by the Honourable Senator Sparrow, that the further debate on the motion be adjourned until the next sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Will those in favour of the motion please say “yea”?
Some Hon. Senators: Yea.
The Hon. the Speaker pro tempore: Will those opposed to the motion please say “nay”?
Some Hon. Senators: Nay.
The Hon. the Speaker pro tempore: In my opinion the “nays” have it.
Senator Forrestall: That is not the way I heard it.
The Hon. the Speaker pro tempore: Is there an agreement on the bell?
Hon. Terry Stratton: Honourable senators, pursuant to rules 67(1) and (2), I would ask that we defer the vote until 5:30 at the next sitting of the Senate.
Senator Cools: Something is wrong here. I wanted to speak to this subamendment. The next stage —
The Hon. the Speaker pro tempore: There is a motion to adjourn the debate.
Hon. John Lynch-Staunton (Leader of the Opposition): If I may, the voice vote was on the adjournment of the debate and Her Honour ruled that the nays have it. That vote cannot be deferred until the next day. It must be taken right away. It is non- debatable. The vote must be taken immediately without the requirement of the bells ringing.
The Hon. the Speaker pro tempore: Is there agreement on the length of bell?
Some Hon. Senators: No bell.
Senator Cools: Honourable senators, it is very interesting indeed that Senator Angus has brought forth this particular initiative. I would also like to say in —
Hon. Jack Austin (Leader of the Government): Senator Cools cannot continue the debate. We must have the vote.
Senator Lynch-Staunton: I believe the honourable senator is about to speak to the amendment.
Senator Joyal: If a debate is to continue, it should continue after the vote.
Senator Robichaud: The honourable senator wanted to speak to the subamendment.
Senator Cools: I am having difficulty hearing what is being said because I am on my feet.
The Hon. the Speaker pro tempore: I am also having difficulty hearing.
Senator Cools: The audio system is not working very well. It is cutting in and out. Perhaps Her Honour could repeat what she said.
The Hon. the Speaker pro tempore: Is there agreement on the length of the bell? No bell?
Senator Lynch-Staunton: Two senators rose to call the vote on the adjournment of the debate, and it was agreed that the vote could not be deferred. Now I understand that Senator Cools has, by rising to speak to the subamendment, agreed that we should not have the vote.
Senator Cools: No, no.
Senator Lynch-Staunton: The honourable senator commenced the debate on the subamendment; she cannot have it both ways.
Senator Cools: I am a little confused. Which vote were we talking about suspending until tomorrow?
Senator Stratton: Call in the senators.
Senator Cools: So you want a standing vote.
The Hon. the Speaker pro tempore: We are calling in the senators now, and the length of the bell will be an hour.
Senator Rompkey: No bell.
Senator Stratton: This is on the subamendment; correct?
Senator St. Germain: This is on the adjournment of the debate.
The Hon. the Speaker pro tempore: There will be no bell. We will take the vote now.
Senator St. Germain: No, never. You must have a bell.
Senator Lynch-Staunton: The rule is that if there is no agreement, there is an hour’s bell; however, I believe the whip said that a 15-minute bell would be appropriate. If there are senators in the reading room or their offices, it is only fair to give them time to return to the chamber to vote.
The Hon. the Speaker pro tempore: Is it agreed that there be a 15-minute bell?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: The vote will take place at 6:10 p.m.
Call in the senators.
The Hon. the Speaker pro tempore: Honourable senators, the question is on the motion of the Honourable Senator Cools, seconded by the Honourable Senator Sparrow, that debate on the subamendment moved by the Honourable Senator Angus be adjourned.
Motion negatived on the following division:
YEAS
THE HONOURABLE SENATORS
Angus Lynch-Staunton
Comeau Merchant
Cools Plamondon
Forrestall Sparrow
Gustafson St. Germain
Keon Stratton
Lawson Tkachuk—14
NAYS
THE HONOURABLE SENATORS
Atkins Lapointe
Austin Losier-Cool
Bacon Maheu
Callbeck Mahovlich
Chaput Mercer
Christensen Moore
Cook Morin
Day Munson
Fairbairn Murray
Furey Phalen
Hubley Robichaud
Jaffer Rompkey
Joyal Spivak—26
ABSTENTIONS
THE HONOURABLE SENATORS
Corbin Ferretti Barth—2
Senator Cools: Honourable senators, I rise to speak in support of the subamendment proposed by Senator Angus. I would like to begin by saying to Senator Angus and to all honourable senators that although we all work here, we know remarkably little about each other. I was most impressed and touched when Senator Angus talked about his daughter and the challenges that he and his family would have faced.
Honourable senators, I am always amazed when we rise to speak in this chamber by what we learn about other people’s suffering. I believe it was Oscar Wilde who talked about certain aspects of life being a season of sorrow. Everyone has experienced some form of suffering in one way or another.
I would like to thank Senator Angus for bringing forward his concept of expanding the list of identifiable groups to include pardoned convicts. I am surprised and impressed by his thoughtfulness on this matter. It has been a long time since the Senate has examined any of these issues. When we speak to pardons we speak to the exercise of clemency in one of its myriad forms. Clemency is an aspect of the Royal Prerogative exercised by Her Majesty’s representative, Her Excellency the Governor General of Canada.
It might be of interest to some senators that I know a considerable amount about this subject matter. In 1980, upon the advice of then Prime Minister Trudeau and then Solicitor General Robert Kaplan, I was appointed to the National Parole Board. I was a temporary member for Ontario because Mr. Trudeau wanted to keep me involved in politics. The National Parole Board is the administrative, quasi-judicial tribunal that looks after the business of parole applications from inmates and the processing of future parolees.
In that position, I listened and spoke to many inmates and voted on many cases. The process is quite complicated. I cannot explain it now, but essentially the Parole Board makes recommendations about parole for inmates that go before cabinet and are invariably accepted. In that way, Parole Board members exercise their intentions by voting. It is an elaborate system.
In addition to the granting of parole, which was developed under the former remission system, the authority and jurisdiction of the National Parole Board extends to recommendations on pardons. In particular, the subamendment moved by Senator Angus speaks to pardoned convicts. If they are pardoned, they are no longer convicts, but that was the language he chose to adopt and that is the language used currently in human rights legislation.
There are two kinds of pardons: the ones that fall under the Criminal Records Act and those that fall under the Royal Prerogative of Mercy emanating from Her Excellency the Governor General on the advice of cabinet. It would be interesting to go back to see the origins of that particular section, and the role in it of Edward Blake, a great Liberal of the
late-19th century, particularly as a follow-up of the Louis Riel situation and that set of insurgencies. If my memory serves me correctly, Lord Dufferin took the initiative to grant certain pardons to many of the insurgents, and that angered many cabinet ministers. Thereafter, the Governor General’s Royal Letters Patent insisted that the Royal Prerogative of Mercy could only be exercised on the advice of the cabinet.
Honourable senators, when I voted on pardon cases I would be amazed at how so many reformed inmates would cling to the system that allowed for pardons. I read many cases. Inmates sometimes spoke of a pardon as though it would make a complete difference to their lives.
Interestingly enough, I recently was speaking in Toronto, the woman who introduced me told me that she had just received a phone call from a former inmate whose particular case I had worked on. The former inmate had said her life had turned around in a phenomenal way and that she wanted to thank me for the work that I had done on her case. We all have these kinds of episodes.
What I am trying to impress upon you, honourable senators, is that the process for laying out pardon applications is quite elaborate and systematic and it means a lot to those individuals who seek a pardon.
Despite the fact that many of these reformed or rehabilitated people had been pardoned, their records sealed and the offences vacated under the Criminal Records Act, many of these individuals complained of enormous discrimination and prejudices against them.
Honourable senators, I think it is important that we be always sensitive, particularly to that group of people in Canada that I call the working peoples of this country, who are mostly labourers. It is well known that the majority of inmates in the federal penitentiaries tend to be from the working peoples and the working classes. I was always deeply touched by the concerns that so many of these people raised about the hardships they encountered in finding jobs and so on.
I should also like to share another view, because it is very important. A part of me that says everybody should be protected from genocide and hate, but once we identify groups and once we begin to look at that list of identifiable groups, we begin to realize that many other groups of people are worthy of equal protection.
I must say to Senator Angus that I never would have thought of the group of people that he mentioned. I am pleased, indeed, to support that group because it gives us an opportunity to be sensitive to all those people out there who have had the misfortune of having an encounter with the criminal justice system.
That is the reason, honourable senators, I am opposed to Bill C-250 in the first place. I believe this particular bill will be used for political reasons, one of which will be to cleanse Canadians of moral opinions. I am of the opinion that this bill will engage many innocent Canadians in a prosecutorial process simply because some of them may happen to express views about certain homosexual sexual practices.
For example, if they wish to express moral views about certain homosexual or sexual practices, or if religious people wish to express the view that it is not only immoral but sinful, or if medical personnel wish to express the view that it is unhealthy, it would be very wrong to expose so many Canadians to vexatious and menacing prosecutions.
Honourable senators, I spent a lot of time listening to inmates and making decisions about granting parole. I visited every single penitentiary in Ontario many times to listen to inmates. I would also mention in passing, honourable senators, that, when I served on the parole board, I had a reputation for being a firm, fair and honest board member.
Senator St. Germain: Question? We still have time. Why are you calling time?
Senator Cools: I must object promptly. The Speaker usually stands to inform us that the time has expired. However, it is not yet 6:30. Is my speaking time up?
Senator Robichaud: Your 15 minutes are up.
Senator Cools: How does Senator Robichaud know that? Was he counting or is he a magician?
Senator Robichaud: I was counting.
The Hon. the Speaker pro tempore: You have 90 seconds, senator.
Senator Robichaud: Question!
The Hon. the Speaker pro tempore: Are senators ready for the question?
It was moved by the Honourable Senator Angus, seconded by the Honourable Senator Stratton: “That the motion in amendment be amended by adding before the words ‘ethnic origin,’ the words ‘pardoned convict,’.”
Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Hon. the Speaker pro tempore: All those in favour of the motion will please say yea.
Some Hon. Senators: Yea.
The Hon. the Speaker pro tempore: All those opposed to the motion, please say nay.
Some Hon. Senators: Nay.
The Hon. the Speaker pro tempore: In my opinion, the “nays” have it.
And two honourable senators having risen:
Call in the senators.
Senator Stratton: According to rule 67(1) and 67(2), I should like to defer the motion to 5:30 p.m. at the next sitting of the Senate.
The Hon. the Speaker pro tempore: Accordingly, the vote will be held tomorrow at 5:30 p.m.