PRIVATE MEMBERS' BUSINESS

STANDING ORDERS OF THE HOUSE

The Speaker: The question is on the amendment to the amendment.

(1755)

(The House divided on the amendment to the amendment, which was negatived on the following division:)

(Division No. 293)

YEAS

Members

NAYS

Members

Bellemare
Bethel
Bevilacqua
Blondin-Andrew
Bodnar
Brown (Oakville-Milton)
Calder
Cannis
Catterall
Chamberlain
Chan
Clancy
Cohen
Collenette
Collins
Cowling
Crawford
Culbert
Cullen
DeVillers
Dhaliwal
Discepola
Easter
Finlay
Flis
Fry
Godfrey
Guarnieri
Harb
Hubbard
Ianno
Iftody
Jackson
Karygiannis
Kilger (Stormont-Dundas)
Kirkby
Kraft Sloan
Lastewka
LeBlanc (Cape/Cap-Breton Highlands-Canso)
Lincoln
Loney
MacLellan (Cape/Cap-Breton-The Sydneys)
Manley
Marleau
McCormick
McGuire
McKinnon
McLellan (Edmonton Northwest/Nord-Ouest)
McTeague
Minna
Mitchell
Murray
Nault
O'Brien (Labrador)
Pagtakhan
Patry
Peterson
Pettigrew
Phinney
Pickard (Essex-Kent)
Pillitteri
Proud
Reed
Regan
Richardson
Rideout
Robichaud
Robillard
Scott (Fredericton-York-Sunbury)
Sheridan
St. Denis
Steckle
Stewart (Northumberland)
Szabo
Telegdi
Terrana
Thalheimer
Torsney
Vanclief
Verran
Volpe
Wappel
Wells
Whelan
Zed-95

PAIRED MEMBERS

The Speaker: I declare the amendment to the amendment defeated.

The next question is on the amendment. Is it the pleasure of the House to adopt the amendment?

Some hon. members: Agreed.

Some hon. members: No.

The Speaker: All those in favour of the amendment will please say yea.

Some hon. members: Yea.

The Speaker: All those opposed will please say nay.

Some hon. members: Nay.

The Speaker: In my opinion the nays have it.

And more than five members having risen:

(1805)

(The House divided on the amendment, which was agreed to on the following division:)

(Division No. 294)

YEAS

Members

NAYS

Members

PAIRED MEMBERS

The Speaker: I declare the amendment carried.

The next question is on the main motion as amended. Is it the pleasure of the House to adopt the motion?

Some hon. members: Agreed.

Some hon. members: No.

The Speaker: All those in favour of the motion will please say yea.

Some hon. members: Yea.

The Speaker: All those opposed will please say nay.

Some hon. members: Nay.

The Speaker: In my opinion the yeas have it.

Some hon. members: On division.

The Speaker: Carried on division.

It being 6.10 p.m., the House will now proceed to the consideration of Private Member's Business as listed on today's Order Paper.

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PRIVATE MEMBER'S BUSINESS

CRIMINAL CODE

He said: Mr. Speaker, it is definitely a privilege to begin the debate on my private member's Bill C-247 dealing with amending the Criminal Code with respect to trespassing. This is a time when the average Canadian gets to speak, for my measure comes from them.

In my three and a half years as a member of Parliament I have had only two bills drawn for debate. Unfortunately this is the way the old system works. I think every member will agree with me that it is difficult to bring a concern from the riding and change a statute based on that concern.

As the member for New Westminster-Burnaby, I have done much to bring concerns forward in order to make a difference in our community. After all, this is a large part of the job. Canadians count on each and every one of us to be fully accountable to their concerns. There is no question that Reform has been the most significant party that truly puts the constituent first. And while Reformers may be able to pat themselves on the back for this achievement, it is also sad to see in contrast how many Liberal and NDP MPs have treated their constituents.

In British Columbia the issue which seems to be on everyone's mind is criminal justice. British Columbians are completely fed up with the many loopholes in our statutes and what they provide.

Last month thousands protested in Vancouver when Clifford Olson issued a notice that he would seek parole through a section 745 hearing, probably one of the most significant loopholes in the Criminal Code. The Minister of Justice and local Vancouver Liberal MPs sloughed it off by saying ``do not worry, Olson will not get paroled''.

It is impossible for these bleeding heart Liberals to say he will not get out on parole because statistics clearly show that the accused usually has an excellent chance of being released early. The issue here is the symbolism of that offender. The symbolism that this offender can mock a community through our justice system is unacceptable.

Reformers are not going to give up the fight on section 745 and we are definitely not going to give up the fight in trying to cure the loophole disease, as I call it, that is plaguing the way justice is administered in this country.

I mentioned at the outset that I have had two private member's bills drawn in this Parliament. The other bill was Bill C-323 which dealt with amending the Bankruptcy and Insolvency Act.

Approximately two years ago a constituent approached me with a concern that a loophole in the Bankruptcy and Insolvency Act was enabling violent offenders to be released from their commitment to pay civil court judgments. It was a loophole that was causing innocent victims unnecessary suffering.

Last year I saw an article in the Vancouver Province about a woman who was awarded $200,000 in damages for sexual abuse by her stepfather. Her stepfather was ordered after a civil court trial to make payments of $500 a month. According to the article, he made one full payment of $500, four payments of $100 and then filed for bankruptcy. He got off. It was easy. That was the end of it.

It was clear from my research and from speaking with constituents that a simple amendment to the Bankruptcy and Insolvency Act would eliminate the possibility for a person to use personal bankruptcy to escape from any owed damages awarded in civil court.

If we look at the way the Bankruptcy and Insolvency Act reads, a bankrupt person cannot be relieved of paying, for example, any traffic fines, alimony or child maintenance payments, yet they can be relieved of paying damages for something like sexual assault, a great inconsistency. I found it amazing that no government had ever changed such a very simple clause.

After I introduced Bill C-323, the Minister of Industry introduced Bill C-5 which amended the section that my bill did. However, their amendment was fairly weak in content. What ensued were negotiations to have my private member's bill included in Bill C-5, which is now close to receiving royal assent.

The exercise proved not only that an individual MP can have a direct influence on how legislation is drafted, but it proved that MPs should be open to all concerns and suggestions brought forward to them by their constituents. In this rare instance the government listened and I also found a sympathetic minister.

That brings me to the discussion surrounding Bill C-247, what we are debating today. In coming up with my bankruptcy and insolvency bill one constituent contacted me to get me going down the road of investigation.

Now on the issue of trespassing I have received numerous complaints from police officers, regular patrons of shopping malls and public library workers. The complaint was the sheer frustration that persons are trespassing on property, causing a public disturbance and destroying a sense of community and livability for children and yet are unable to be removed for any significant amount of time.

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We all know malls are popular places for youth to hang out. If members have teenage sons or daughters as I do, they will know that one of their favourite congregation points is the mall, usually the food court. Perhaps it is because there is food around or perhaps it is because there are tables to lounge on and places to sit.

The security personnel in the malls consistently have a difficult time in maintaining civility and the chief reason is that they have little if any authoritative jurisdiction. If the security staff of a mall is forced to remove a problem person, that individual can simply re-enter the mall within minutes and start the whole scenario all over again.

There is no place in the Criminal Code that states that the trespasser must stay off the property for any amount of time. The only way the person can be charged is by resisting removal from the property. Therefore, if the person never resists, the act could continue over and over, which in some cases it does as a specific plan.

Federal government officials too often forget that teenagers are extremely street smart. I served on the House Standing Committee on Justice and Legal Affairs when we dealt with the Young Offenders Act. A witness wanted me to believe that most young offenders have no idea of the penalties they will receive if they commit a certain crime. At the time Reformers were calling for the YOA to be strengthened in order to deter young offenders from committing crime. Offenders seem all too aware of how soft the system is.

Before I became a member of Parliament I served as a court officer in the attorney general's ministry in British Columbia. I spent a great amount of time dealing on a one to one basis with young offenders. After a while one understands very clearly what they are thinking. Many offenders know exactly what they are doing when they calculate committing an offence. Many know exactly how to beat the system. If there is a loophole in the system a teenager will find it, and the word quickly travels the streets.

For the past three and a half years, Reformers have been attempting to amend the justice system by closing these loopholes one loophole at a time. I recently went on the Internet to see what I could find if I typed in the words ``trespassing in Canada''. Several items came up and most were of no use. One site did appear in the search, a CBC site for the television show ``Street Cents,'' a show geared toward teenagers interested in consumer-based issues. The title of the site was ``How does the law affect you in common, legal

situations, if arrested, kicked out of a mall, asked for ID or if someone is threatening to search a locker''.

Whoever was doing the research for this question interviewed the Public Legal Education Society of Nova Scotia, the Nova Scotia Human Rights Commission and a Halifax lawyer. This is what was said at this site about trespassing in a mall or hangin' at the mall: ``Provincial laws like the Protection of Property Act give mall owners and store owners the power to post signs like no loitering or only two persons at a time allowed in the store. The signs are a restriction on people's freedom of movement as defined by the charter of rights, but so far the charter's rules only apply to the federal government and federal institutions like the CBC.

``The Protection of Property Act gives property owners the power to control how their property may be used so long as they publicly post these conditions. No smoking rules are an example of how this power may be used.

``Provincial health and safety laws are responsible for a bunch of other sign restrictions like no bare feet, no pets you often see in malls. If you break any of these rules posted on signs it means mall security can simply usher you out of the mall and they don't need to give a reason. You're ushered and you're toast. It's a powerful statute.

``Some malls do not post signs forbidding loitering so hangin' out indefinitely may be just fine where you live, it depends. However, most provincial protection property laws, the dreaded P of P, do empower mall security to move on or forcibly remove persons who are in a mall and causing a disturbance. In the province of Nova Scotia the guard can even ban you from the mall or store from which you've been hurled for up to six months. It has happened. If you break the ban police can be called and you can be charged with trespassing. Heavy.

``In the case of young people swearing or physical horseplay, wrestling or hackie sac might be interpreted by some as causing a disturbance. There is a range of behaviour by individuals malls will tolerate. When it is groups of teens the range seems to narrow down. Some malls might even argue a large group of exuberant young people cause a disturbance to other customers or merchants just by their very presence. This is an area of common misunderstanding''.

Every province seems to have a different way of dealing with trespassers. In British Columbia the trespassing laws are weak. Something has to be done with this most serious issue. With the provinces doing very little to remedy this situation, something should be done to amend the Criminal Code to provide a reasonable national standard of peace and order.

The amendments I have made in Bill C-247 would strengthen section 41 of the Criminal Code. Subsection 41(1) states:

Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

That is the law the way it is now.

I am proposing an amendment to section 41 of the Criminal Code, making it a mere summary conviction for a person who has already been lawfully removed from real property or a dwelling house not to be able to lawfully return for 24 hours. The reason for the 24 hours is to provide adequate time for the person to cool off. It is amazing how attitudes change in 24 hours.

Perhaps I could put my proposed legislation into a hypothetical situation. A teenager is removed from a shopping mall for offensive, rude, loud conduct. The teenager must then stay out of that shopping mall for a total of 24 hours. If that teenager decides to re-enter the mall within that 24 hours, he or she can be charged with trespassing on entrance and may be guilty of an offence punishable on summary conviction. They would be issued a ticket, a summons to appear in court.

Additionally, as the section in the Criminal Code deals with a dwelling house, my amendment also deals with it. As a family court counsellor I was often made aware of domestic situations wherein disrupting behaviour which disturbed the peace for children in the household was a problematic situation.

For example, sometimes police are called to a residence to assist in the removal of a drunk, unwanted, former boyfriend of a young mother. Perhaps in this situation the matter is dealt with successfully by the officer on the scene, assisting in the removal of the person from the dwelling house. Subsequently, at the curb, the policeman may decide to release the individual, being that the temporary co-operation of the person appeared to have solved the situation. However, the offender may return some time later after having consumed more alcohol and start the process all over again.

In this case the perpetrator could temporarily co-operate in view of the officer. However, an hour later he might reappear at the door and start conversations or hassle again and again.

Legally the second or third appearance on the property is a separate event which would have to be dealt with by an attending officer as a legal, separate incident on a new complaint being made. My bill would solve that special set of circumstances and perhaps bring much peace into estranged domestic situations where restraining orders or no contact orders are not available or not workable.

General community order would more likely be provided if the perpetrator knew that he or she could be charged summarily if he or she reappeared on the property with 24 hours of being lawfully removed. The deterrent effect would be great and would likely

result in more non-justice system solutions with voluntary co-operation.

My amendment makes common sense, but of course I do not expect to get much help on that score from the House when the committee did not make my bill votable. I spoke yesterday, albeit briefly, on the general reputation of the government on the administration of justice. It just does not represent mainstream Canadian values on protecting the public.

I know that in this Parliament my bill will not see the light of day past this one hour. However, I hope that my Criminal Code amendment will be drawn to the attention of government lawyers in the Department of Justice whose jobs it is to make the criminal justice system more loophole free. I have personally drawn my private member's bill to the attention of the justice minister and so far I have had no response.

The bill is straightforward common sense. Its practical consequence is prevention at the street level, rather than enlarging the net. I hope this reasonable measure will find support in the House.

With the unanimous consent of the House, I would now like to move a motion. I move:

That my private member's bill be made a votable item.

The Acting Speaker (Mr. Milliken): Does the hon. member have unanimous consent to propose the motion?

Some hon. members: Agreed.

Some hon. members: No.

Mr. Gordon Kirkby (Parliamentary Secretary to Minister of Justice and Attorney General of Canada, Lib.): Mr. Speaker, I am pleased to speak to Bill C-247, an act to amend the Criminal Code with respect to trespass.

The bill proposes to amend section 41 of the Criminal Code by adding a new subsection (3), which would carry a summary conviction offence in the case of subsequent trespass.

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The bill would therefore create a specific offence that would apply whenever a person trespasses on any property after having already been lawfully asked to leave or prevented from entering less than 24 hours before. This subsequent trespass would occur with respect to residential property or any other kind of property.

I believe the hon. member for New Westminster-Burnaby is trying with this bill to stem a problem that occurs in his constituency and which may be taking place in a number of urban areas across the country. The problem is essentially one of people, particularly young persons, who may hang out at shopping centres and at times to some degree make a nuisance of themselves. These young people are often asked to leave by a security guard or a shop owner but they keep coming back, sometimes day after day.

I agree with the hon. member that sometimes such behaviour can be annoying. However, I have problems with the remedies proposed by the hon. member. I believe that the proposed remedy is not in line with the principles that govern the current trespass provisions in the Criminal Code.

Section 41 of the Criminal Code provides that a person who is in peaceable possession of a dwelling house or real property is justified in using reasonable force to prevent a person from trespassing on the property or to remove the person from the property. Trespassing itself does not constitute a criminal offence. A criminal offence would be committed only if there were physical resistance of one sort or another to the removal that could be considered an assault.

Under the current law no offence is committed when one leaves a place without resistance when asked to do so. The change that the hon. member is proposing is to make it an offence to return after one has been asked to leave once and has left the place peacefully.

My first comment is that the bill appears to create a somewhat odd situation. The oddity would come from the face of the bill that makes it an offence to trespass in a certain place when one does it for the second or subsequent time but when the same act done for the first time is not an offence. I find that a little odd.

Another concern is that the bill would make it an offence to trespass on not only private property but even in a public place. The bill would apply not only to persons doing subsequent trespassing on a dwelling house but also to persons doing subsequent trespassing on any real property, including places considered generally open to the public.

There are some instances where trespassing is a criminal offence under the Criminal Code provisions. For instance, trespassing at night is an offence. Section 177 of the Criminal Code makes it an offence to loiter or prowl at night on the property of another person near a dwelling house situated on that property. Trespassing at night is an offence punishable by summary conviction.

Clearly there is a big difference between trespassing at night, which has sinister connotations, and the kind of trespassing that Bill C-237 is aiming at.

While I agree that teenagers hanging out at the mall can annoy some shop owners and clients, this behaviour does not in general have a sinister characteristic that trespassing at night could have. The behaviour considered in Bill C-237 is nowhere near as serious

as what is considered to constitute a trespassing offence under the Criminal Code.

What we are talking about here is more like what is referred in common parlance as loitering. I would like to point out that loitering in a public place and obstructing persons who are in that place is already a summary conviction under section 175(1)(c) of the Criminal Code. A person or group of persons hanging out at a shopping centre may fall within the ambit of 175(1)(c) if they obstruct persons such as shoppers or shopkeepers who are in that place.

I believe that the offence of loitering in section 175(1)(c) would make sense precisely because of the conduct of obstruction, that which causes inconvenience or harm to other people. However, young people who simply hang out at their local shopping mall are not causing any obstruction and are not committing any actual misconduct, nor are they doing any direct physical harm to anyone.

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Creating a Criminal Code provision aimed at alleviating this type of situation is like swatting a fly with the proverbial sledge hammer. The hon. member indicated that in many areas these situations can be remedied by either municipal bylaws or provincial law. It seems a long stretch to use the most severe legislative sanction that can be drawn, that is the Criminal Code, the criminal law of the land.

The hon. member wants to make it an offence just to be in a place that is not necessarily a private residential property or some place of a private nature. He wants to make it an offence to be in a public place such as a local shopping mall. I am concerned about the potential for abuse by the owners or tenants of these public places and perhaps by security guards or law enforcement authorities.

I strongly believe it is not appropriate to create a Criminal Code offence that would criminalize acts that can be seen as trivial in comparison with what is normally the domain of the code, more so since these acts often involve young people.

In addition, I do not believe it is necessary since there are already provisions in the Criminal Code that would allow authorities to deal with cases that do constitute a nuisance. As I indicated previously, when serious actual acts which harm or could harm either shopkeepers or clients to public places are taking place, the Criminal Code already has sanction for these more serious activities.

I cannot support the bill because the type of problem the bill is dealing with is not the type of problem that would appropriately be dealt with in the Criminal Code. This is a type of problem, as I indicated, that could very easily be dealt with by municipal bylaws and provincial statutes and regulations.

Unless we are dealing with serious matters we should allow our provincial municipal authorities, those closer to the scene of the problem, to make legislation that fits in their circumstances.

[Translation]

Mr. Michel Bellehumeur (Berthier-Montcalm, BQ): Mr. Speaker, it is always a pleasure to speak to a bill introduced by a member who has taken the time to move amendments to the Criminal Code. The bill clearly reflects the concern of the hon. member for a problem he has encountered in his riding or a problem experienced by his constituents.

However, I will say right away that I cannot support this bill. I cannot support the bill introduced by the hon. member of the Reform Party, and I will explain why, very briefly.

First of all, I will quote the text of this amendment to section 41 of the Criminal Code:

Every person is guilty of an offence punishable on summary conviction,

who (a) trespasses on a dwelling house or real property; and (b) has, within the previous twenty-four hours, been lawfully removed from, or prevented from entering, that dwelling-house or real property.

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The Criminal Code already contains provisions to deal with any breach of such orders. This aspect that may be affected by this amendment is already covered by the Criminal Code. So something else would be added, since when an order is breached, the person is brought before the court and then has to suffer the consequences of his actions.

In the other case, someone mentioned earlier the example of loitering in commercial buildings or even in front of a private residence or elsewhere. I think I agree with the government on that

score. This kind of behaviour should not be criminalized, and as a member of the Bloc, I think we should look at the broader context. I think it is more a municipal problem than anything else. It is a problem that local authorities, in other words, municipal councillors and mayors of municipalities, can deal with by passing appropriate bylaws on loitering.

As far as I know, many municipalities in Quebec and across Canada have already passed bylaws in their municipalities to prevent young people from making a nuisance of themselves one way or another in public places or in front of private residences.

My point is that the hon. member was probably well intentioned when he decided to propose this amendment to the Criminal Code, but an amendment has to add something new, it has to fill a void. At the present time, I think that our municipal bylaws, the Criminal Code and other appropriate legislation already deal with this problem and that it is unnecessary to amend the Criminal Code by adding an additional paragraph as proposed by the member of the Reform Party.

This is why we in the Bloc Quebecois are not in favour of Bill C-247.

[English]

Mr. Ken Epp (Elk Island, Ref.): Mr. Speaker, I would like to add a few words of what I hope will be considered common sense to the debate. The bill which my hon. colleague has put forward has a lot of common sense at a very elementary level.

The bill simply deals with refusing to allow a person re-entry who has been already illegally evicted from a premise. Let us stop to think about it from a very practical point of view. There is not a merchant in the country who will kick his customers out if the customers are good for business. It also makes a lot of sense to consider if he or she is encountering interference by people on the premises who are preventing other people from coming in or even making them uncomfortable because of their antics. If there is adequate reason to remove that person lawfully, which is the first part of the bill, why should there not also be a simple provision that says the person may not come back? Perhaps 24 hours is not enough.

That is what the motion is stating. A person can be kicked out of a place, walk right back in, do the same thing, be kicked back out, come back in, do the same thing and on it goes. There is no remedy to that situation. It can be repeated over and over.

My hon. colleague is simply saying that we should give that individual a chance to stop and think about it and give the involved security people or the police staff the opportunity to say to the person: ``You are out of here for 24 hours. Stop to think about what you are doing. Maybe you will correct yourself''.

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At the time of the initial eviction, especially with young people, very often there is a little element of peer pressure. They just want to prove a point and maybe have a bit of fun. That would break this up and solve the problem. We in the Reform Party are very interested in preserving the rights of law-abiding citizens.

In this instance we are taking people who are pushing to the limit the rights and the privileges of others. We are saying that for a short time their right to enter the premise will be suspended. It is just a very gentle way of correcting them instead of digging them into a big hole.

There is always the debate on whether this is a provincial matter. We have heard that a lot this week in the debates on justice issues. I suppose one could argue that almost everything is provincial in the sense that almost everything is given in the Criminal Code to the provinces to administer. There is a national Criminal Code, the Criminal Code of Canada. Within that code are these articles of trespass and other provisions. Why not strengthen it so that it could be made to work more smoothly?

One of the last things I would like to see happen is our security people or those working on police forces wasting their time frivolously putting people out and allowing them back in because they have to under the present provisions without there being a remedy.

Now it is suggested that every municipality could have a regulation in this regard. Why should we ask the thousands of municipalities to deal with the issue and to include it in their own provisions? That would result in a lack of uniformity and an inefficiency in terms of the use of legislators' time when we could have a national law in the form of a change to our national provisions which would solve the problem?

In conclusion, it is unfortunate the way this place works. The member from the Bloc who spoke said: ``I and the members of my party will not be supporting this provision''. In other words he is the justice critic. He comes in here. He looks at it and says: ``That is the end of it. Our guys will not be supporting it''.

The parliamentary secretary already made the decision on behalf of the Liberal Party. This is a private member's bill. Of course we have free votes. Instead of a carte blanche that says we will not support it and thereby have everybody jump into line, perhaps it would be better if the leaders in their respective caucuses would challenge their people to think about the matter and to make their decision individually.

They should talk to the people in their ridings as my hon. colleague has done. His motion is a direct result of representations to him by people involved in these kinds of things. He has talked to the police who actually have a suboffice in the shopping mall. They have a problem where their time is being wasted by having to repeatedly put people out. They have no legal provision to tell them not to come back.

That is all that is being asked here. It makes a great deal of common sense. As I said in the beginning, it is perhaps a little too elementary for members opposite to realize, but I plead with them to consider the matter carefully. Let us allow the legislative process and the Liberal red book commitment to more free votes to apply. Let us deal with the issue rather than simply have one person say: ``We will not support it because it is a Reform motion'' or for whatever other reason.

I am thankful for the opportunity to participate. I hope I have added value to the debate this evening.

The Acting Speaker (Mr. Milliken): There being no further members rising for debate and the motion not being designated as a votable item, the time provided for the consideration of Private Member's Business has now expired and the order is dropped from the Order Paper.

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