Hon. George Baker:

Honourable senators, I have been asked to say a few brief words on this bill. Before I do, I want to congratulate Senator Frum and Senator Raine who attended the Legal Affairs Committee last night with government members and did an excellent job of questioning government officials. The minister was there as well. I believe it illustrated the function of the Senate, which is to make sure that the intent of the legislation is understood.

The reason why I say that at the beginning, honourable senators is that I think Bill C-30, the bill we have before us now should be passed. In fact, I think the bill we have before us should have been passed years ago. I think it is an excellent piece of legislation. However, let me read and put on the record how the bill came here, keeping in mind the changing role of the Senate.

Children in school learn that bills are introduced at first reading when the title is read. At second reading the bill is debated in principle. The bill then goes to committee to be examined, and then it comes back for third and final reading in the House of Commons. That is not what happens these days. I will put on the record how this bill came here to the Senate. It is in one sentence.

Honourable senators, here is how the bill was dealt with in the other place — and this is not an exception these days. This is from the official version of the debates report, No. 115, Friday, December 10, 2010 at 10:40 in the morning.

The Speaker: That concludes the debate on this bill.

Pursuant to order made Tuesday, December 7, 2010, Bill C-30, An Act to amend the Criminal Code, is deemed read a second time, deemed referred to a committee of the whole, deemed reported without amendment, deemed concurred in at report stage and deemed read a third time and passed.

All stages, one motion.

I am not objecting to that, Your Honour.

Honourable senators, I think that is the way Parliament has evolved. Anyone who wants to do away with the Senate had better give it a second thought because that is how things have evolved. Perhaps that is the way it should be because the other place is concerned more with politics, is tied up with Question Period and accountability of the government, while the legislative function is left to the Senate.

What would a researcher do if he or she wanted to find out what this bill means?

Senator Banks: What would a judge do?

Senator Baker: What would a judge do in finding out the purpose of this bill? This is a complicated bill we have before us. It is a great bill and I agree with it, but it is complicated. What would a judge do?

Honourable senators, the judge would say, there was no second reading, there was no committee stage and there was no third reading. That is the point. The Senate is the legislative function of the Parliament of Canada these days and we should keep that in mind.

Honourable senators, the mover of this motion is Senator David Angus — W. David, as we called him years ago. He used to be a great litigator, so far be it from me to be critical of W. David. In the mid-1960s, when I was a law clerk at a provincial table, he was before the Supreme Court of Canada. When I arrived on the Hill in 1974, Senator Angus was before the Supreme Court of Canada.

In the 1980s, he was before the Supreme Court of Canada as a litigator. He has appeared before the Quebec Court of Appeal and the Federal Court of Appeal.

Senator Angus even goes back to the Exchequer Court, Your Honour, and you will recall that from reading history, it was prior to the Federal Court. Senator Angus was the mover of this motion.

What is the foundation of this complicated bill that the other place has placed on the shoulders of the Senate to interpret and to pass at all stages? Your Honour, it all goes back to the Canadian Charter of Rights and Freedoms.

Honourable senators, today in Canada, everyone who is out on bail — or judicial interim release, as His Honour would call it, being a former professor of law — who has a condition that says that he or she is not to consume illegal drugs or drink alcohol cannot be tested. It no longer applies that a judge is able to give an order for a parole officer or officer of the law to ask for a breath, urine or blood sample from a person on parole. Why does it no longer apply? It is no longer applies because the Supreme Court of Canada ruled that it was a violation of section 8 of the Charter of Rights and Freedoms. That is why the Government of Canada is introducing this bill today.

Honourable senators, let me put on the record why we are here with Bill C-30. At paragraph 4 of the Supreme Court of Canada decision, R. v. Shoker is the person involved. It says:

Shortly after midnight on September 7, 2003, the complainant was awakened when a naked stranger was getting in her bed. The intruder, Harjit Singh Shoker, followed her when she fled to the kitchen to phone the police but he did not attempt to leave. On arrest, he told the police that he had been using a narcotic the previous day. Mr. Shoker did not testify at trial. He was convicted of breaking and entering a dwelling-house with intent to commit sexual assault.

The next paragraph examines the testimony of a Dr. Whittemore, who performed the psychological assessment on Mr. Shoker. Dr. Whittemore said that Mr. Shoker blamed his drug use for his behaviour, stating that he had been on speed at the time of the offence. The report described a history of substance abuse, including heroin, speed, cocaine and marijuana.

Honourable senators, the report also referred to a similar incident that had occurred a few months earlier. Mr. Shoker was charged and was awaiting trial for that offence. At the time of the earlier incident, Mr. Shoker said he was under the influence of drugs.

Here is a man who committed a second offence within three months — break and enter for purposes of committing an indictable offence, namely sexual assault. Dr. Whittemore said he was recommending that random urinalysis be done to assist in managing Mr. Shoker's risk to the community when he was released from jail.

The trial judge sentenced Mr. Shoker to 12 months' incarceration, to be followed by a two-year period of probation, subject to a number of conditions.

One of the conditions is found in paragraph 6, Condition 9:

Abstain absolutely from the consumption and possession of alcohol and non prescription narcotics and to submit to a urinalysis, blood test or breathalyzer test upon the demand/ request of a Peace Officer or Probation Officer to determine compliance with this condition.

Honourable senators, Mr. Shoker went to jail but he disputed the fact that he would have to be subjected to urinalysis when he came out to find out if he had a narcotic in his body.

He took it to court, and went to the Court of Appeal and the Supreme Court of Canada. The Supreme Court of Canada ruled that he was right and that it was unlawful. Why? As honourable senators know, there is a case called R. v. Collins, in which it says a search can be legal only if it is authorized by law, if it is a reasonable law and if the search is conducted reasonably. Those are the three components of a legal search. The Supreme Court of Canada said it is not authorized by law.

Honourable senators, that was in 2006. For five years we have been without the authority in this country for the police and parole officers to check on people who are out on condition, judicial interim release or probation following a jail term. That authority is what this bill provides. It is a complicated bill. It is a long bill, but that authority is what it provides.

Senator Angus, in describing the bill, made two excellent points, among all the other excellent points he made. He said: "For example, from April 1, 2005 to March 31, 2006, some 236,000 individuals in Canada were convicted of a Criminal Code offence."

When individuals are charged, as honourable senators know, they are brought before a judge within 24 hours. Following that is their application for bail, after which their conditions for release on bail are given. According to Senator Angus, 80 per cent of the cases of violent crimes in Canada involve the consumption of illegal drugs or alcohol.

There is that group of people. Then there are people released on conditions and on probation. Since this decision of the Supreme Court of Canada, a judge could not authorize the taking of a sample to prove that someone was complying with a condition of their release.

Honourable senators will note that these offences are considered to be indictable, criminal offences. There are 3.6 million Canadians with criminal records as per the Identification of Criminals Act. As honourable senators know, a criminal, in the Identification of Criminals Act, is not someone convicted of a summary offence. It is someone convicted or held for trial and who is charged with an indictable offence. That is subparagraph 2(1)(a)(i) of the Identification of Criminals Act in Canada.

Someone who is charged with a summary conviction offence is not covered under the Identification of Criminals Act. I want to make that distinction clear.

Therefore, 3.6 million Canadians today — over 10 per cent of the entire population of the country — have a criminal record as identified in the Identification of Criminals Act. We have 14 per cent of the entire population of the country who are of voting age with criminal records, and that percentage is increasing.

Senator Angus goes on to make an interesting point. He says that two standards are set under this new law. Do not forget that a system will be set up whereby parole officers and police officers can check whether someone is in compliance with their conditions of release; that is, officers can take a breath sample, a urinalysis or a blood test.

One group of people will be on the basis of grounds to suspect; the other group will be on grounds to believe. As honourable senators know, there is quite a difference between those two. Those grounds will apply to what they are released on and why they are released. Is it a part of their trial? Is it a part of their sentence? As honourable senators know, if there are grounds to suspect, and it is a part of their sentence, they have to submit to the inspection by the police officer.

What is the difference between "suspect" and "believe" in these cases? If someone has glassy eyes and slurred speech, those things are grounds to suspect. However, it is possible that anyone can have glassy eyes and slurred speech without being intoxicated or under the influence of drugs. If that person was also unsteady on their feet, stumbled when they walked and could not perform certain exercises, then that person would give reason to believe that they are guilty of the offence.

Senator Angus spells out this difference clearly.

I recommend to all honourable senators that we pass this bill. It is an excellent bill. Ensuring compliance with the Charter is one of the functions of Parliament and it is left to the Senate to determine compliance.

In conclusion, let me deliver some bad news for Senator Stratton.

There is sad news for Senator Stratton today. The law that Senator Stratton was being referenced regarding, in all of our courts, was struck down yesterday as being unconstitutional.

Some Hon. Senators: Oh, oh.

Senator Baker: It was struck down by the Ontario court.

When we were studying the bill, I recall a senator to my right, who said, when we reached that section of the bill, It seems to me this may lead to a constitutional challenge.

The lawyers from the Department of Justice Canada were there and said, no, we checked this out and we are sure it would not lead to a constitutional challenge.

That senator to my right was Senator Joyal. It did lead to a challenge and it was struck down by the court. We hope the Department of Justice Canada noticed. We know they always pay attention to what goes on in the Senate, and we hope they will obtain a copy of the judgment. It is not yet on Westlaw or Carswell, but I have a copy if they so wish to have one.

It is too bad; I suppose Senator Stratton could be compared to the line in Macbeth: "Out, out, brief candle!" He strutted his time upon the stage in Canadian case law, but now he will be heard from no more.

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