Statement made on 01 March 2012 by Senator James Cowan
Hon. James S. Cowan (Leader of the Opposition):
Honourable senators, this is not the first time — and I suspect it will not be the last time — that I will speak on a time allocation motion moved by this government. I readily acknowledge that there may be circumstances in which proceeding in this way is justified, for instance when a deliberate filibuster drags on and on, or where there is some public urgency for the legislation in question. However, that is not the case with Bill C-10.
Following its second reading, the Senate asked its Committee on Legal and Constitutional Affairs to examine Bill C-10 so that we in this chamber could better focus our debate and consideration of the legislation. Our committee heard from over 100 witnesses during almost 60 hours of testimony. It then presented its report containing a number of amendments, as well as some observations that were unanimously agreed to by its members.
Our committee did what we asked it to do, but yesterday, after less than an hour of debate on its findings — really just an explanation of the amendments and observations by the chair and a few comments from me — the government had heard enough. Senator Carignan gave notice of this motion to limit further debate.
Not only did he give his notice of motion with unseemly haste, but he also then gave us only the very minimum time allowable for any additional discussion.
Rule 39(2) states that "the motion shall provide for at least . . . a single period of a further six-hours debate, in total, to dispose of both the report and the third reading stages of a public bill."
That is exactly what Senator Carignan's motion gives to us all — six hours, not a minute more.
After barely 30 minutes of debate on an omnibus bill containing more than 200 clauses, the government decided there would be only six more hours of debate. The government had the option of giving more time under rule 39. It could have given 12, 10, or even 7 hours, but that is not what it chose to do.
We have exactly six hours to debate and discuss this omnibus crime bill before it is brought to a final vote — six hours, 360 minutes, not a minute more.
An Hon. Senator: That is after six years.
Senator Cowan: Each senator, apart from the two leaders, will be permitted, under our rules, to speak for a maximum of 15 minutes after the committee's report is brought forward for debate later today. Twenty-four senators speaking for the maximum allowable time will mean that almost 80 of us will have no opportunity whatsoever to participate in the debate.
An Hon. Senator: Shameful.
Senator Cowan: With this motion, Senator Carignan is telling almost 80 of his colleagues that the government has absolutely no interest in listening to what they have to say.
Senator Cowan: As I say, Bill C-10 is an omnibus bill. It combines nine bills that were previously brought by the Harper government in different sessions and in different Parliaments, none of which were passed into law and many of which were never examined in this chamber. It will enact significant amendments to some eight statutes, create an entirely new act, and make consequential amendments to even more statutes.
I do not believe that any committee member brought to the hearings the briefing book prepared by the Department of Justice. It was simply too massive to carry. The legislative summary prepared by the Library of Parliament ran to over 150 pages.
Honourable senators, omnibus bills are inherently dangerous creatures. They allow dangerous clauses to be buried, as we in this chamber have discovered on several occasions in recent years. They do not allow interested Canadians and others with serious knowledge of particular issues to be heard. Witnesses frequently find their voices lost on large panels. Other potential witnesses are left out in the cold, prevented by so-called time constraints from testifying altogether.
Let us not lose sight of the content of this bill. It proposes amendments that will result in many more Canadians being sent to prison. Honourable senators, if any bill deserves careful scrutiny and debate, it must be a bill that will deprive our citizens of their liberty.
We all know that this bill is contentious, and we have all received hundreds of emails and other communications from very concerned Canadians —
An Hon. Senator: Thousands.
An Hon. Senator: Thousands.
An Hon. Senator: Thousands.
Senator Cowan: Asking us — pleading with us — to reflect carefully on the proposals in this bill.
How insulting to these people to then invoke closure, to shut down debate, to limit it to the maximum degree possible, and to do so immediately, after the briefest of explanations.
The Canadian Bar Association said:
The CBA Section is of the view that bundling several critical and entirely distinct criminal justice initiatives into one omnibus bill is inappropriate and not in the spirit of Canada's democratic process.
I agree. This is not the right way to craft the best laws for Canadians, particularly ones dealing with the Criminal Code. This is not how our legislative process was designed to work.
Mr. Harper understood that — at least he did when he was in opposition. In 1994, he stood in Parliament and vehemently imposed the use of an omnibus bill in, as he put it, the interests of democracy.
Unfortunately, since becoming prime minister, he appears to have had a change of mind, as well as a change of heart. He has presented so many omnibus bills of such astonishing and unprecedented breadth and length that our former colleague Senator Murray once suggested that there could come a day when the Harper government would table only one bill in Parliament — a super-bill encompassing the whole of its legislative agenda for the year.
An Hon. Senator: Good idea.
Senator Cowan: As I said when I began my remarks, I have some sympathy for a government that finds it needs to move forward more quickly with a piece of legislation because of a pressing public need. However, with Bill C-10, there is no such pressing need. The real reason for the supposed urgency is nothing more than the Conservatives' election pledge to pass this omnibus bill within the new Parliament's first 100 days.
Why 100 days, honourable senators? Why 100 instead of 75 or 90 or 190? Nothing in the bill demands that it be passed within 100 days. Indeed, many provinces and territories have been begging the federal government not to bring all parts of the bill into force too quickly as they are simply not prepared and equipped to deal with the aftermath.
We were actually told by officials, on the last day of our committee hearings, that Bill C-10 will in fact be phased in over the months ahead.
Because of an absolutely arbitrary election commitment, we have found ourselves, in this place, unable to do the complete and proper study that this bill requires. Far too many eminent Canadians with deep knowledge of the issues in the bill could not be heard by our committee. These are people like Anthony Doob, the highly respected criminologist, who has devoted his life to these issues, and David Daubney, the former Progressive Conservative MP, chair of the Justice Committee in the other place, who went on to work with the Justice Department on sentencing issues. These are just two of the witnesses I would have wanted to hear from on this legislation.
Those witnesses who did appear had to present their submissions on this massive bill in five to seven minutes. How do you sum up views of all of these diverse parts, these far reaching provisions, in just five to seven minutes? Senator Wallace was ever polite and tried to allow as much latitude as he could, but repeatedly we had to end sessions before all senators could ask their questions.
The two federal ministers who appeared, Justice Minister Nicholson and Public Safety Minister Toews, did so very briefly. Several senators, including our colleague Senator Nolin, did not get to ask any questions before the ministers had to run from the committee room, apparently for a vote.
One would have hoped that on such an important, far-reaching bill they could have found time to return, but that was not to be. Now, of course, this debate is being shut down.
Honourable senators, submissions from witnesses and groups who were unable to appear because of the artificial time constraints have continued to come in, long after the committee completed its study of the bill. We all have binders of submissions — hundreds and hundreds of pages of transcripts. If we are to do our job as legislators, each of us should carefully study them and weigh the arguments presented before we vote on the bill.
Have all senators who were not on the committee been able to read all the material? Will this truncated debate be sufficient to inform them of all the complex implications of this mammoth bill? I doubt it. We should be very clear: We are not being allowed to do our job as parliamentarians with this bill. That alone should give each and every one of us pause before we vote on this motion.
The Canadian Bar Association gave us excellent advice in its submission when they stated:
The politics of criminal justice should not trump the evidence and knowledge as to what are the most effective criminal justice policies and the best use of public resources.
In this case, honourable senators, politics has trumped good legislating. There was no legitimate reason to restrict the witness list. There was no valid reason for restricting the Senate from doing what it does best: engaging with Canadians through its committees; and there is no legitimate reason to cut off this debate today.
We saw what happened in the other place because of the government's unseemly haste to ram this bill through. In committee, my colleague Irwin Cotler proposed a number of reasonable, evidence-based amendments designed to improve the bill. Every one was voted down by the Conservative majority on the committee — almost always without even an attempt to present any argument why the amendment was ill advised. Apparently, it was enough that it was proposed by a Liberal.
We all know what happened. After the committee concluded its voting on the clauses, the government realized, suddenly, that some of the amendments proposed by Mr. Cotler would really improve the bill. Then they tried to reintroduce them at report stage, but they were ruled out of order by their Speaker on procedural grounds. So they had to be introduced in our committee.
Thank goodness for the Senate, but what a waste of time — precious time — had this bill actually been urgent for Canadians.
Honourable senators, there simply is not the time for each of you to read all the transcripts, let alone the many thoughtful submissions that Canadians and, indeed, eminent international authorities have sent to us. Let me urge you to read at least the submission prepared by the Canadian Bar Association.
The CBA, as many of you know, is a non-partisan group representing Crown prosecutors, defence attorneys, jurists and law professors across the country. I found their brief carefully and thoughtfully prepared, and it covers pretty much the entire bill. I wish you could read all of the submissions — but, if you only have time to read one, I recommend that one.
If I had to pick a single article to read, it would be the important one that appeared recently in the National Post. Its three authors are among the most knowledgeable people on our criminal justice system: the Honourable Roy McMurtry, former Attorney General of Ontario in the Progressive Conservative government of former Premier Bill Davis and the former Chief Justice of Ontario; Edward Greenspan, a highly respected and experienced criminal lawyer; and Anthony Doob, Professor Emeritus of Criminology at the University of Toronto. The article appeared on February 14 and was entitled, "Harper's incoherent crime policy." They argue that in all the talk about Bill C-10, it would be easy to miss the real significance of Prime Minister Harper's crime policy. They say that the issue should not be this provision or that — six or nine months in prison for growing six marijuana plants, et cetera. They say:
The more fundamental issue that crime policy should address is basic: How do we, as Canadians, want to respond to those who have committed crimes?
They then state some basic facts — simple truths as they put it — that they say need to be considered in making sensible crime policy. It is things like the following: Many young Canadians commit relatively minor offences — drug possession, breaking and entering, shoplifting — that could see them imprisoned. As people get older, they become dramatically less likely to commit offences. In many cases, if someone avoids reoffending for five to fifteen years, their odds of committing a crime again become the same as the segment of the population that had never offended. There are known, effective ways to reduce crime. Changing criminal laws alone will have little if any impact on crime.
McMurtry, Greenspan and Doob argue that:
The Harper crime policy is less than the sum of its parts because it does not add up to a crime policy that addresses, or even acknowledges, these basic facts. It squanders resources that could be used to reduce crime. . . .
But the Harper crime policy is more than the sum of its parts because it tells us that the government is committed to ignoring evidence about crime, and does not care about whether the criminal justice system is just and humane.
The writers conclude:
The Tories are right that their incoherent crime plan is a major shift in Canadian justice policy. But this shift will not serve us well.
Honourable senators, the government has ignored the evidence in drafting its incoherent crime policy, and now it is doing its utmost to prevent us from even reading the evidence in assessing that policy. Instead of allowing us, as legislators, an opportunity to consider and debate what Canadians are telling us about the omnibus crime bill, the government, through Senator Carignan's time allocation motion, has brought in the guillotine.
Honourable senators, this is wrong. This is not how laws should be made in this country. This is not what Canadians expect of their legislators. This is a bad day for all of us.
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