Bill C-416 (Historical)
An Act to amend the Criminal Code and the Youth Criminal Justice Act (sentencing principles)
This bill was last introduced in the 37th Parliament, 3rd Session, which ended in May 2004.
This bill was previously introduced in the 37th Parliament, 2nd Session.
Brian Pallister Canadian Alliance
Introduced as a private member’s bill. (These don’t often become law.)
Introduction and First Reading
(This bill did not become law.)
Private Members' Business
October 29th, 2003 / 5:55 p.m.
The Acting Speaker (Mr. Bélair)
The House will now proceed to the taking of the deferred recorded division on the motion at second reading stage of Bill C-416, under private members' business.
(The House divided on the motion, which was negatived on the following division:)
Private Members' Business
October 23rd, 2003 / 6:10 p.m.
Brian Pallister Portage—Lisgar, MB
Madam Speaker, justice should always be blind to race. What my private member's bill, Bill C-416, will do is achieve the removal of the references to race, both in the Criminal Code and in the Youth Justice Act. These are unique to Canada and it is sad when these references compel judges to consider in the determination of a sentence whether a convicted offender is an aboriginal person.
I have listened intently to the arguments put forward by my colleagues, some thoughtful, some less thoughtful. Certainly in some of the comments there is no evidence that people have read the actual bill, in fact. The government's argument seems to be that because there are too many aboriginal people in jail, there should therefore be special consideration to reduce the percentage of aboriginal people in jail. That is a kind of quota system. There is no logic or fairness to that. The justice system is supposed to look at the individual person in determining sentencing, and that is exactly what the judge has to do now.
What this provision does is require the judge to be a social worker and take a look at the race of the person, to peek out from under the blindfold and see what colour of skin the person has. That is supposed to influence sentencing. There is no logic or fairness in that.
There are too many aboriginal people incarcerated. That is a problem, but they have committed a crime and they have received a sentence. That is why that person, who has made that individual decision, is in jail. Sixty per cent of federal inmates in Manitoba are aboriginal, versus an aboriginal population, though younger certainly, of 13%. In Saskatchewan, fully two-thirds of young offenders incarcerated are aboriginal. There is a problem, but those figures, while shocking, are no excuse for a requirement that instructs judges to be lenient based solely on racial characteristics. There is no fairness in that. That is tantamount to providing a volume discount for crime.
It is an absurd proposition to suggest that we will reduce the rate of incarceration of aboriginal people, or any other group, for that matter, by simply sentencing them more lightly. Nor will we reduce the rate of criminal activity of such a group by doing that. The correct approach would clearly focus on preventing the crime in the first place. This is something the government has had precious little success in doing.
Members from the New Democratic Party and the Liberal Party talk about crime prevention mechanisms, but they fail to adopt common sense changes which would empower individual aboriginal people to a greater degree, such as human rights protection. These are the kinds of things the Canadian Alliance supports: human rights protection for all aboriginal people, the only group in the country that does not have it, and matrimonial property rights for aboriginal women so that they would have the security and confidence that all other women in Canada now enjoy.
These are meaningful changes that the Canadian Alliance has brought forward. The government has failed to act on them. In so doing, it has continued to perpetuate the strength of chiefs at the expense of vulnerable individuals on reserves. I grew up next to a reserve. I have spent my whole life with aboriginal people. I urge the government to take steps to prevent crime, meaningful steps, by empowering individual aboriginal people against the concentrated power of the chiefs and the elites on reserves.
The fact of the matter is that we have advanced matrimonial property rights proposals, as I mentioned, which would give aboriginal people the right to own their own homes, human rights protection, as I mentioned, and consumer equality for aboriginal people so that they could obtain credit and engage in transactions that we take for granted. There are so many proposals we have brought forward. None were adopted.
I listened to the member from the NDP, who, with his poorly researched and idiotic comments, was saying that all this is about is punishment. My God, that is pap. The fact of the matter is that we have brought these ideas forward because we believe in them strongly. We in this caucus represent more aboriginal people than everyone else in the House combined. For heaven's sake, I say, show some respect to people when they present ideas in the House and do not go with the idiotic political correctness and the poorly researched ideas. It is absurd.
Aboriginal people are diverse. There are over 600 first nations communities. Half the aboriginal population in this country lives off reserve. Aboriginal people have a complete gamut of skills, vocations and familial environments. They do not all grow up in alcoholic households, they do not all come from broken homes, and they are not all on welfare. These old stereotypes are dangerous and the government plays to them when it references group membership in the Criminal Code.
The fact of the matter is that we have to deal with this issue in a meaningful way. I believe that what the government has chosen to do is favour aboriginal criminals at the expense of aboriginal victims. That is grossly unfair. Adopting this bill will change that. I urge my colleagues to support it.
Private Members' Business
October 23rd, 2003 / 6:05 p.m.
Maurice Vellacott Saskatoon—Wanuskewin, SK
Madam Speaker, Bill C-416 brought forward by my colleague, the Canadian Alliance member for Portage--Lisgar, is a good bill and it is an attempt to restore equality in the sentencing principles of the Criminal Code and the Youth Criminal Justice Act.
Presently the Criminal Code and the Youth Criminal Justice Act include sections that instruct sentencing judges to “pay particular attention to the circumstances of aboriginal offenders”. These provisions can result in more lenient sentences for offenders based on race.
To sum it up for our viewing audience and for members who have just stepped into the chamber, the bill would remove that race based sentencing instruction in the Criminal Code and the Youth Criminal Justice Act and restore equality to our justice system.
Sentencing reforms adopted in 1996 created that two tier justice system; one for aboriginal Canadians and one for non-aboriginal Canadians. These reforms in the view of many of us actually stigmatize aboriginal Canadians by creating the false impression that they are more likely to commit crimes because of their race.
It is true that there probably is a greater percentage of native, aboriginal and first nations people in jail but that is not because of their race. It is because of other conditions that definitely and clearly need to be addressed, issues of poverty, family instability, low education rates and so on.
However this reform, which was instituted in 1996, actually creates the stigma that someone is an aboriginal person and because of that, the person is more likely to offend. As well these sentencing provisions in my view fail to acknowledge that the victims of crime committed by aboriginal offenders are usually aboriginal also. Aboriginal victims should have the same right to justice as non-aboriginal victims.
On December 21, 2001, RCMP Constable Dennis Strongquill, himself an aboriginal person, was murdered in the line of duty by Robert Sand. It was a brutal murder. Mr. Sand's lawyer argued that he should receive a more lenient sentence because he was an aboriginal and so we had justice at least argued to be denied, by that judge, to six fatherless children, which was something perpetrated against another aboriginal person. Imagine how his wife and six children feel about the murderer of their father getting off light because he is aboriginal.
Discounted sentences come at a high price. When the Liberals introduced these amendments, it was obvious that they chose criminals over the victims. These sentencing provisions deny aboriginal victims the full and equal protection of the law.
I have another story from the Montreal Gazette . It tells about one of the scariest nights of a particular aboriginal woman's life when two men went on separate drunk shooting sprees in her community of Mistissini, 90 kilometres northwest of Chibougamau. It goes on in the story to talk about the fright that took place. After it was all over, police chief Blacksmith said that the real problem was the justice system. He said:
We're not getting the appropriate sentences for these guys. Every time we bring someone in on serious charges, they're back out again in a few months.
Chief Blacksmith is a Cree who has lived on that reserve for more than 30 years. He points back to a 1990 Supreme Court ruling requiring judges to consider background and other social factors in sentencing aboriginal offenders. He said:
They always bring it up to get a more lenient sentence. It means we end up babysitting all sorts of serious offenders.
My colleague's intent is to put some equality back into the justice system. In particular, victims are victimized all over again by the very lenient or lighter sentences without the seriousness of the crime taken into account and the kind of treatment delivered or dished out by the individual who has offended and has committed that very serious offence against another aboriginal person.
We who are in the Canadian Alliance support the bill. There should be due consideration for the bill in the House. In the meantime we have a kind of racism in that we are not giving proper justice to aboriginal people based on their skin colour. That is clearly wrong.
Private Members' Business
October 23rd, 2003 / 5:55 p.m.
Val Meredith South Surrey—White Rock—Langley, BC
Madam Speaker, I have listened with interest and I do not disagree with some of the comments that have identified. There is a higher population of aboriginals in our corrections systems. I really find it amazing that their logic would say it will solve everything by giving them special sentences after they have committed crimes. I do not buy that.
I spent 15 years in Canada's north. I lived in a community that was 50% aboriginal. The aboriginal community got high offices on our local council because we treated them as equals. They ran businesses and were treated with respect in the business community because we treated them as equals. They rose to significant influence in our community because the community treated them as equals.
To have this philosophy that the only way aboriginal people will rise from oppression is by treating them differently is false. Our justice system is based on all people will be treated fairly and equally under the law. The fact that aboriginals have horrible living conditions on reserves will not be resolved by giving them special consideration under law.
What they need is substantial support from the federal government. The federal government has to stop treating them like children and stop denying them their proper place in society. The government does not give them good health care, which is its responsibility and it does not give them good education, which is also the government's responsibility.
Yes, there is a high suicide rate among young people on reserves. Yes, there are poor living conditions on reserves. We should be dealing with those kinds of issues.
To in law assume that it is only aboriginals who live in poverty is not true. Many non-aboriginal people live in poverty. Many non-aboriginal people are uneducated, do not have jobs and incomes and are on welfare and social assistance. To say that the way to solve all problems is to treat them differently in law will not resolve those issues.
To take our legal system and break it down on special conditions for this and special considerations for that, that has already happened. It is not codified. It is not written down in law. When a judge looks at all the circumstances and deals with anyone who appears before the court who has committed a crime, all these circumstances that have a place in the crime which was committed are taken into consideration by the judge when a sentence comes down, and so it should be.
We have argued that much of this does not need to be codified because it is already in practice. However, when we start codifying stuff, then we are starting to say that the law is not equal and is not fair. When we go down that slippery slope, we start breaking down what law is and what the justice system is to Canadians.
I do not argue with my colleagues that something is wrong and that a higher percentage of aboriginals are in our prisons and system. I do not argue that it is because of deplorable circumstances and living conditions. However, I do argue that codifying that a judge has to take that into special consideration and treat that person differently than they would treat a non-aboriginal is wrong. This is not the way to go.
When we look at the circumstances, I know the federal government spends a lot more money on different programs, restorative justice programs for the aboriginal people, and that is good. However that does not deal with the inherent problem that causes the higher number of aboriginal people to be in the court system.
We have to break down some of the prejudices that we see in perhaps our policing community that will throw an aboriginal in the drunk tank but take a non-aboriginal home. We have to change that attitude because it is not right. We have to change the attitude of some people who might say that these people do not have any better place to go so we should incarcerate them.
I know of a personal case in the community in which I was raised. A person who did not have a place to live was left alone during the summertime, but come fall he would be incarcerated because some people decided he would at least have a roof over his head and three meals a day.
Those are the wrong reasons for putting a person behind bars, but it was done for compassionate reasons. This guy would end up spending his time locked away during the winter months because people were concerned about his health and well-being, There has to be a better way for society to handle that sort of thing.
We have to deal with those kinds of issues that may skew some of these numbers. This comes down to root causes such as poverty, poor living conditions, poor health conditions or poor education. This does not happen just on reserves. A large community of aboriginals in Canada are not treaty Indians and do not get the protection of the federal government, albeit it is not much protection. That aboriginal community needs something.
Those aboriginals need economic development in their communities so that they can get jobs and have pride in having work and having income. We can restore their sense of pride because they do not have to depend on federal government largesse and, in essence, the federal government treating them like children.
We need to do something substantial, but treating them separately and differently is not the way to do it. The aboriginal community will only become accepted in our society as equals when we as a society start treating them as equals. By always separating them, making special conditions for them and treating them as different, we will never reach a point where we are treating them as equals. I know this from my own experience in the community where we have a large native population. Only when they are treated as equals, will we be able to meet them face to face as equals.
My colleague who presented the amendment in Bill C-416 is only trying to get down to the basic point of the law, which is to treat all Canadians with fairness and with equality.
I rest my case. That is the essence of this issue. There are problems with our aboriginal people, but let us deal with those problems. Let us not get mixed up in corrupting a legal system to deal with problems that do not belong there.
Private Members' Business
October 23rd, 2003 / 5:50 p.m.
Brian Masse Windsor West, ON
Madam Speaker, it is a pleasure for me to add my voice and the voice of the New Democratic Party to oppose Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act.
For five years I was an employment specialist for youth at risk, be it employment or counselling for a vocation. I can say that provided there are the right programs and services, youth who are at risk can turn their lives around and make incredible contributions and strides in a matter of weeks or months. More important, they can become leaders and mentors.
This amendment goes in the wrong direction for youth. It singles them out in particular. I find I cannot support it.
I fail to see what the bill has to contribute to the elimination of crime, the improvement of the corrections system or the development of society. Rather than focusing on the causes of crime or the adverse situational circumstances affecting aboriginals, the Alliance is wasting the time of the House debating a measure that will contribute nothing to reducing crime.
I also point out that in aboriginal communities there are things that have been allowed to fester and to grow and have created conditions that are unique and special and challenges that require the commitment of the nation. We know that right now 50% of aboriginal children are living in poverty. We also know that the suicide rate of aboriginal children is more than five times the suicide rate of non-aboriginal children. These are statistics that come from troubled environments that need support and enhancement, not further unfair practices.
The Alliance is not proposing methods to tackle the causes of crime. It is proposing nothing to improve the circumstances faced by aboriginal people. Rather than getting tough on crime and tough on the causes of crime, it is getting tough on a convenient scapegoat. That is youth, youth that have perhaps made wrong decisions, or because of their background, require some assistance and some mentorship. That certainly could be developed a lot more strategically as opposed to this amendment.
Both the Liberals and the Alliance are reactive rather than proactive on this issue. The Liberals amended the legislation to deal with the particular circumstances of aboriginal offenders. The Alliance wants to do away with the amendment. Neither party is proposing measures that will resolve the underlying causes of crime in aboriginal communities. Why are they choosing to focus on the after the fact issues such as sentencing rather than getting serious about preventing crime and the underlying causes of crime within a particular community?
The whole situation reminds me of a scene from the TV program The West Wing , where a campaign strategist said, “We don't want a solution, we want an issue”. That seems to be the whole Liberal-Alliance agenda.
The Liberals are false friends of the aboriginal people in this. Really, the clause is an admission that Canada's aboriginal people should not expect things to get better: “We will let far too many of you live in despair, but don't worry, we'll take that into account when we decide how long we put you in prison”. Meanwhile, the Alliance claims that aboriginal people are getting off too lightly.
In the end, it is two sides of the same coin. Both the Liberals and the Alliance get an issue they can try to play to their mutual political advantage. Whether it is Liberal inaction or Alliance prejudice, victims of crime continue to suffer. Canadian communities continue to suffer and aboriginal people continue to suffer.
Finally, any allegations that the Criminal Code extends preferential treatment to aboriginals is absolutely false and manipulative of the public's understanding. The code permits judges to adopt the sensitivity and understanding required when sentencing aboriginals. This degree of understanding is not extended because the justice system favours aboriginals, but because it allows judges to implement sentences that are more fully complete and achieve the public and individual good.
This specific discretion protects the public by allowing judges to impose sentences that are tailored specifically to the rehabilitation needs of a section of society, rather than confining a judge's discretion to imposing a one size fits all punishment that ignores the needs and realities of particular individuals, groups or a community.
Simply put, Bill C-416 has nothing to offer, nor will it change anything. Supporting the bill would only lend credibility to those who wish to conceal and manipulate the real issues.
Private Members' Business
October 23rd, 2003 / 5:40 p.m.
Inky Mark Dauphin—Swan River, MB
Madam Speaker, I am pleased to rise on behalf of the Progressive Conservation Party to take part in the debate on Bill C-416.
This bill amends the Criminal Code and the Youth Criminal Justice Act by removing the obligation of a court to consider with particular attention the circumstances of aboriginal offenders when imposing a sentence.
Let me remind our viewers that during this hour the House deals with private members' business. Essentially this is business initiated by private members and does not necessarily reflect the views of the parties. As we know in the House, as members we will have a free vote on this, probably in the following week.
We in the Progressive Conservative Party of Canada are not supportive of this type of amendment. It is imperative that we recognize social and cultural differences and that this recognition not be a type of reverse discrimination. The recognition by the Criminal Code and the Youth Criminal Justice Act of the societal differences do not prevent a judge during the sentencing process from examining the same type of differences for non-aboriginal people. In fact, judges do take into account all the factors of the accused all the time.
The bill brings to light a very serious issue. If positive discussion stems from this debate, it will come in the form of recognition that there are societal and cultural differences that need to be acknowledged. We talk about the diversity of the country. In a sense we are talking about the same topic. We know that there are homeless in the country and that there are millionaires who drive Cadillacs.
The debate tonight centres on what would be an amendment to the new Youth Criminal Justice Act and the Criminal Code. I will begin by talking about the Youth Criminal Justice Act and then move to the main issue which surrounds the recognition of aboriginal offenders during the sentencing process.
Arguably one of the most important tasks that we undertake in this place is to put in place a more effective and accountable system of youth criminal justice.
This summer I met with a number of aboriginal communities to deal with that very same topic, lack of youth justice. I found that if the government of the day wishes to be successful on that portfolio, it will have to put a lot more money into making sure that its programs are happening at the grassroots level because today that is what is lacking. We do not have the resources, the money or the manpower to make sure that the youth justice system works. We cannot operate like we did before with a new act if we do not put in the resources.
As legislators we have to be adamant about recognizing that no bill will satisfy everyone. That is pretty commonplace in the House.
The Youth Criminal Justice Act was intended to simplify and streamline the system. Young people in particular, their parents and those who were tasked with the enforcement of youth criminal justice would be able to work in a more suitable and responsive fashion that would be quick to adapt to the changing times in which young people found themselves facing tough decisions which led to involvement in the criminal justice system. The intent clearly was to somehow codify a system that would allow for early intervention and the proverbial pre-emptive strike in dealing with young people when they made those decisions that challenge the law.
Sadly, what we have done is put layers on top of layers and created a system that will result in numerous delays and new court challenges. In fact, the justice system basically echoed the sentiment in dealing with aboriginal youth, is it better to deal with it at the local level through a justice committee or is it better to wait a year before the accused shows up in court? It does not make any sense. Community problems have to be solved at the community level.
This new approach that was supposed to achieve so much will have the polar opposite effect. It will result in delays which follow the old legal maxim that justice delayed is justice denied. That is the example I just gave.
The system will not allow young people and their parents in particular to grasp what is happening. Many who work in the system would certainly agree that accountability and responsibility are paramount to any youth justice system. What this will do is separate that nexus of accountability.
What we are doing here is trying to somehow codify the system of discretion, telling police that they can now issue warnings, that they can now issue cautions and that these have to be written up in a certain way. We are superimposing these responsibilities in an artificial way, telling police that they must be counsellors and caseworkers, that they must document all of this, do the paperwork and spend less time out on the streets and more time being administrators and paper shufflers. That is the problem that exists today.
This imposition on top of the current responsibilities of law enforcement and the demands upon the men and women who are currently carrying out that important task would result in a great deal of delay. It would result in a great deal of unnecessary, unsubstantiated work that is currently outside the realm of police in terms of where they should be concentrating their efforts.
There are a number of serious flaws in this bill. The amendment passed by the Senate last year does manage to shed light on a very serious problem that can be found not only in the youth system but the criminal justice system at large.
Noting differences for differences' sake is unacceptable. What we see in the Youth Criminal Justice Act is a recognition of the inherent differences that do exist, sadly, on native reserves in this country. The fact of the matter is there are social and economic differences and the consequences those have on young people are very acute. The problems found on our reserves are very serious and highlight some of the inequities throughout our entire country. These differences need to be addressed.
The inclusion of the recognition that circumstances differ is an important one for courts to consider, not only through the adjudication process but when considering sentencing. This is not tantamount to the solution. It is simply a reminder to those in the judiciary that this has to be taken note of.
If there is one positive that can come from the debate today, it may be that the bill proposed by the member for Portage--Lisgar demonstrates that the societal differences between aboriginal and non-aboriginal youth are officially recognized. In my opinion they should continue to be recognized.
I admit that justice should be blind to race, ethnicity and gender. In a perfect world we would not need the leviathan, but this is not a perfect world and these societal inequities remain and are evident today.
These directions are provided in the Criminal Code and the new Youth Criminal Justice Act. I would submit that the youth and the adult systems have to be consistent. We have to have similar protection under the new Youth Criminal Justice Act.
Statistics and studies have consistently shown that there are a disproportionate number of aboriginal youth incarcerated in our system. We have heard already this evening that 85% of people incarcerated come from aboriginal communities. I do not believe that there is a race or ethnicity issue associated with the particular clause we are considering.
The addition of aboriginal recognition during youth sentencing is consistent with current Criminal Code provisions. It is not about specializing the interests of the accused or the victim. It simply puts into legislation a recognition that the situation in which aboriginal people find themselves today is worthy of note in coming to a conclusion as to what the appropriate sentence is that is meted out by the sentencing judge.
Some have argued that it is in and of itself discriminatory to have a clause like this in the Criminal Code at all. Yet in our justice system we have to recognize that the courts have made a very important pronouncement, alluded to in the Queen v. Gladue which sets out quite clearly that we can improve upon the situation of aboriginals in our legal system by this recognition of their circumstances. It is one of simple consultation and it allows judges to recognize what is inherent in the country today.
I close by saying that justice is about helping people to better themselves. It is not about locking them up and throwing away the key.
Private Members' Business
October 23rd, 2003 / 5:35 p.m.
Derek Lee Scarborough—Rouge River, ON
Madam Speaker, I am pleased to speak to Bill C-416, an act to amend the Criminal Code and the Youth Criminal Justice Act introduced by the hon. member for Portage—Lisgar.
This bill would result in amending the Criminal Code and the Youth Criminal Justice Act so that a court would no longer have to consider the particular circumstances of aboriginal offenders when passing sentence. The amendment would apply to both adult and youth offenders.
The specific section of the Criminal Code that is at issue is section 718.2(e). It states that:
--all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
The proposed bill would delete these last nine words as well as similar provisions in the Youth Criminal Justice Act.
The primary purpose of this principle is to encourage our courts to use restraint when considering imprisonment as a sentencing option. It is important to point out that this principle of restraint applies to all offenders, not just aboriginal offenders.
However, based on the fact that aboriginal offenders continue to be drastically over-represented in our criminal justice system and in our prisons, the principle stresses the importance of paying special attention to aboriginal offenders. Based on the history and current plight of aboriginal peoples in Canada, this special recognition is both necessary and justified. I therefore cannot support Bill C-416.
This relatively new principle of requiring courts to consider the circumstances of aboriginal offenders came into effect in 1996 by virtue of Bill C-41. This is one of a number of principles that were codified in that bill. Since that time, the courts, including the Supreme Court of Canada, have had an opportunity to consider this sentencing principle. I would like to share some of the comments that the Supreme Court made about paying particular attention to the circumstances of aboriginal offenders.
In 1999 the Supreme Court concluded in Regina v. Gladue that in sentencing aboriginal offenders section 718.2(e) required judges to consider the unique systemic or background factors that may have contributed to the offender having committed the crime, and then to consider whether there were traditional or cultural sentencing practices or sanctions that may have been appropriate for that particular offender in the circumstances.
The Supreme Court stated that aboriginal offenders:
--differ from those of the majority because many aboriginal people are victims of systemic and direct discrimination, many suffer the legacy of dislocation, and many are substantially affected by poor social and economic conditions.
In Regina v. Wells, a unanimous 6 to 0 decision in 2000, the Supreme Court upheld a lengthy prison sentence for an aboriginal offender who had sexually assaulted an aboriginal woman. When considering whether a conditional sentence would be appropriate, the court stated that the application of section 718.2(e) did not mean that a sentence for an aboriginal offender would automatically be reduced since the determination of a fit sentence required consideration of all of the principles and objectives of sentencing set out in part XXIII of the Criminal Code.
The court stated that while section 718.2(e) mandated a different methodology for the sentencing of aboriginal offenders, it did not necessarily mandate a different result. Section 718.2(e) did not alter the fundamental duty of the sentencing judge to impose a sentence that was fit for the offence and the offender.
The court further restated the principle set out in the earlier decision of Gladue, that at the more serious end of the range of offences it would be more likely that non-aboriginal and aboriginal offenders would receive similar sentences. The court confirmed that the section did not mean that aboriginal offenders must always be sentenced in a manner that gave greatest weight to the principles of restorative justice and less weight to goals such as deterrence and denunciation.
In the Wells decision, the Supreme Court confirmed that the trial judge, in imposing a 20-month sentence, correctly applied the sentencing objectives of denunciation and deterrence to a serious sexual assault.
The Supreme Court in Wells said, however, that in appropriate circumstances, a sentencing judge may accord the greatest weight to restorative principles notwithstanding the fact that an aboriginal offender committed a serious offence.
The court stated that a just and appropriate mix of accepted sentencing goals depended on the needs and current conditions of the particular community where the crime occurred. The court also rejected the notion that restorative sections were necessarily lenient. In fact, the court pointed out that making reparations to the victim and the community might be more onerous than serving a short prison sentence.
The Supreme Court, after fully considering that section, concluded that this provision did not give preferential treatment to aboriginal offenders but sought to treat aboriginal offenders fairly by recognizing that their circumstances were usually different.
I fully support the balanced approach that has been set out by the Supreme Court in applying section 718.2(e) of the Criminal Code.
I am also pleased that section 718.2(e) of the Criminal Code has encouraged the development of programs and services to assist aboriginal offenders across the country. For example, in Toronto, a “Gladue court”, if we want to call it that, has been established and that makes section 718.2(e) work the way the Supreme Court has set out.
The government continues to be concerned about the over-representation of aboriginal offenders in the criminal justice system. This was confirmed by the statement made in the Speech from the Throne in 2001, opening the first session of this Parliament. It said:
Canada must take the measures needed to significantly reduce the percentage of Aboriginal people entering the criminal justice system, so that within a generation it is no higher than the Canadian average.
In conclusion, there is no doubt the aboriginal community is vastly over-represented in the criminal justice system. The government is continuing to make efforts to change this; however, the causes of over-representation involve complex social and economic factors, addictions and disadvantages. These are historical and not easily dealt with.
Despite indications that the courts are supporting the sentencing provisions in the Criminal Code that encourage restraint in the use of incarceration, the government continues to be concerned about the incarceration of aboriginal offenders. The government will continue to make efforts to ensure that aboriginals are not over-represented in our prisons. Paying particular attention to the circumstances of aboriginal offenders at the sentencing stage is only one small part of the overall plan to reduce this over-representation.
Our society needs to focus on the root cause of crime so that long term changes will result. For example, we are funding programs for aboriginals through the national crime prevention strategy, the aboriginal justice strategy, and the youth justice renewal initiative.
The government is committed to working with our aboriginal people and all Canadians to contribute to a safer and more just society.
Statements By Members
October 21st, 2003 / 2 p.m.
Brian Pallister Portage—Lisgar, MB
Madam Speaker, imagine a country where your race determined your treatment by the justice system. Such a country would be violating the most fundamental tenet of justice. Only one such country exists and we are in it. It is Canada.
The appalling truth of the 1996 Liberal amendments to the Criminal Code and the 2000 Youth Criminal Justice Act is that they require sentencing judges to treat aboriginal offenders differently than other Canadians.
That is wrong. It is an insult to law-abiding aboriginal people. It is an insult to the victims of aboriginal crimes, most of whom are aboriginal people. It sends a sickening, perverse message to aboriginal young people. Most important, it fails to address the causes of higher aboriginal crime rates: the deplorable socio-economic status of aboriginal Canadians.
On behalf of aboriginal Canadians, I urge all members to support my private member's bill, Bill C-416, which will restore a true and equal justice system to our country.
Private Member'S Business
May 8th, 2003 / 6:15 p.m.
Greg Thompson New Brunswick Southwest, NB
Mr. Speaker, Bill C-416 would amend the Criminal Code and the Youth Criminal Justice Act by removing the obligation of a court to consider with particular attention the circumstances of aboriginal offenders when imposing a sentence.
We are not supportive of this type of amendment. It is imperative we recognize social and cultural differences. This recognition is not a type of reverse discrimination. The Criminal Code and the Youth Criminal Justice Act recognition of the societal differences does not prevent a judge, during the sentencing process, from examining the same type of differences for non-aboriginal people. We have to put that on the record.
The bill brings to light a very serious issue. If positive discussion stems from this debate, not that we always have to agree with the other member, it will come in the form of recognition that there are societal and cultural differences and that they have to be acknowledged.
The debate today centres around what would be an amendment to the new Youth Criminal Justice Act. We have spoken on that act here many times. Arguably one of the most important tasks that we could undertake in this place is to put in place a more effective and more accountable system of criminal justice for youth.
As legislators, we have to be very adamant about recognizing that no bill will satisfy everyone. The Youth Criminal Justice Act was intended to simplify and streamline a system so that young people, in particular, their parents and those who are tasked with the enforcement of youth criminal justice, would be able to work in a more suitable and responsive fashion, in a way that would be quick to adapt to the changing times and the way in which young people found themselves facing tough decisions, which would lead to their involvement in the criminal justice system.
The intent clearly is to somehow codify a system that will allow for early intervention which will allow for the proverbial pre-emptive strike in dealing with young people when they are making those decisions that challenge the law.
Sadly, in the Youth Criminal Justice Act what we have done is put layers on top of layers and have created a system that will result in numerous delays in our court challenges.
The new approach that was supposed to achieve so much had exactly the opposite effect. It will result in delays, which follow that old legal maxim that “justice delayed is justice denied”. This system will not allow young people and their parents, in particular, to grasp what is happening.
Many who work in the system would certainly agree that accountability and responsibility are paramount to any youth justice system. What this does is separate that nexus or that bond of accountability.
What we are doing is trying to somehow codify this system of discretion, telling police that they can now issue warnings, that they can now issue cautions and that those have to be written up in a certain way. We are superimposing these responsibilities in an artificial way, telling police that they must be counsellors and caseworkers and that they must document all of this, do the paperwork and spend less time on the street and more time being administrators and paper shufflers.
This imposition, on top of the current responsibilities of law enforcement and the demands upon the men and women who are currently carrying out that important task, is, I suggest again, a great deal of delay and a great deal of unnecessary, unsubstantiated work that is currently outside the realm of police work in terms of what they should be concentrating on in their efforts.
There are a number of flaws in this bill. However, the amendment passed by the Senate last year does manage to shed light on a very serious problem that can be found not only in the youth system but the Canadian justice system at large. Noting differences for differences' sake only is unacceptable.
What we see in the Youth Criminal Justice Act is a recognition of the inherent differences that do exist sadly on native reserves in the country. The fact of the matter is that there are social and economic differences and the consequences of those for our young people are very acute.
The problems on our reserves are very serious and highlight some of the inequities throughout the entire country. These differences need to be addressed. The inclusion of the recognition of how those circumstances differ is an important one for the courts to consider not only through the adjudication process but when considering sentencing.
This is not equivalent to the solution. It is simply a reminder to those in the judiciary that this has to be taken into account. If there is one positive note that can come from the debate today, it is that the bill as proposed by the member for Portage—Lisgar demonstrates that the societal differences between aboriginal and non-aboriginal youth are officially recognized.
I admit that justice should be blind to race. It should be blind to ethnicity and it should be blind to gender. In a perfect world we would not need this stated but this is not a perfect world. Those societal inequities remain and are evident today.
These directions are in the Criminal Code and the new Youth Criminal Justice Act. I would submit that we have to be consistent between the youth and the adult system; we have to have similar protection under this new youth criminal act.
Statistics and studies have consistently shown that there are disproportionate numbers of aboriginal youth incarcerated in our system. I do not believe that there is a race or ethnicity issue associated with the particular clause we are considering.
The addition of aboriginal recognition during youth sentencing is consistent with current Criminal Code provisions. It is not about specializing the interests of the accused or the victim. It simply puts in the legislation a recognition that the situation in which aboriginal people find themselves today is worthy of note in coming to a conclusion as to what the appropriate sentence is that is meted out by the sentencing judge.
Some have argued that it is in and of itself discriminatory to have a clause like this in the Criminal Code. Yet in our justice system we have to recognize that the courts have made an important pronouncement. It was alluded to in Regina v. Gladue which set out clearly what we can improve upon regarding aboriginals and our legal system, a recognition of their circumstances.
I had the opportunity today to read that Supreme Court ruling in Regina v. Gladue. I wish I had time to quote from it but the fact is it reinforces some of the message which I think we are trying to put out on at least this side of the House, that the discrimination the member is trying to address in the bill is not an issue that is worthy of debate or in terms of changing the existing law because the fact is it is something that is always considered by judges. For example, for young people who grow up in a poor family, a family that is ravaged by alcohol or drug abuse, that is always considered by the judge in handing down a sentence, whether they are aboriginal or non-aboriginal.
In this particular court ruling the judge clearly outlined that in many cases the punishment that is handed down to aboriginals is more severe because of the conditions that might have surrounded that particular case.
We cannot support this effort by the member from Manitoba. We think it is very narrow in its scope. We do not believe it would be a positive move by us to endorse that type of legislation and we will be voting against it.
Private Member'S Business
May 8th, 2003 / 6:05 p.m.
Alexa McDonough Halifax, NS
Mr. Speaker, I am pleased to have an opportunity to speak to private member's Bill C-416, a bill to amend the Criminal Code and the Youth Criminal Justice Act. For the benefit for those who may have just joined the debate, this is an enactment that proposes to amend the Criminal Code and the Youth Criminal Justice Act by removing the obligation of the court to consider the circumstances of aboriginal offenders when imposing a sentence.
I listened carefully to the Alliance member who introduced the bill. I wanted to hear the principal argument for putting forward the kind of amendments he seeks. Once again it seemed to me that it reflected a quite worrisome disrespect for the important and sensitive role of the judiciary. We heard that this morning in the Alliance opposition day business where there was an attempt, I think, to utterly discredit the Supreme Court of Canada. I know part of the purpose behind that motion was to slam the Liberals along the way, but it showed a real disrespect for the roles of interpretation and bringing to bear experienced, sound judgment, accumulated wisdom and sensitivity to the general public in the conduct of those various roles, including that very difficult task of fair sentencing.
We see a bill that contributes absolutely nothing to the elimination or the reduction of crime. It is just a total preoccupation with the results of crime. It does absolutely nothing to improve the correction system, which begs for reform and adequate resources with which to do the job that it is charged to do, and it does absolutely nothing to develop a healthier society. If that member and his party were actually concerned about the prevention of crime, then one would hope they would focus on what needs to be done to not only ensure fair and even-handed treatment, but also to get at the conditions that contribute to the crimes about which that party proposes to be so concerned.
Once again, rather than focusing on the causes of crime or the adverse circumstances affecting the daily lives of far too many aboriginals, we see the Alliance wasting the time of the House debating a measure that will contribute absolutely nothing in the way of a solution to these fundamental problems.
There is another regrettable aspect to the problem which we are being invited to address in the amendment proposed by the Alliance. The Alliance is characteristically being utterly reactive rather than proactive in dealing with the issue of crime as it occurs in the aboriginal community. The Liberals have done the same. They too have been reactive. They too have failed to be proactive in addressing the question of the incidence of crime among aboriginal Canadians. They actually amended the legislation in the first place to deal with the particular circumstances of aboriginal offenders.
While the Alliance Party wants to do away with the amendment introduced by the Liberals, there surely is cause for some consternation. Neither the Liberal Party, the governing party, nor the Alliance are really proposing measures that will resolve the underlying causes of crime, particularly among aboriginal youth.
Why do they always choose to focus instead on the after the fact issues such as sentencing rather than getting serious about the prevention of crime and ameliorating the underlying causes of crime within a particular community?
I have to say parenthetically it is that same failure with respect to the government's priority in introducing and trying to drive through the first nations so-called governance act, which has so enraged the overwhelming majority of Canadians and most particularly and understandably, aboriginal Canadians
It is not that aboriginal Canadians do not see that there is always the need to try to create greater transparency and greater accountability with respect to the use of resources and taking responsibility for decisions that are made on behalf of aboriginal people. However it is utterly frustrating, to the point of it being enraging, for a great many aboriginal Canadians when the government thinks this is the priority. There are so many issues from the Royal Commission on Aboriginal Peoples that remain completely on the shelf gathering dust and that scream for urgent attention.
This falls somewhat within the same category. What is becoming clearer is the Liberal government is really a false friend of aboriginal Canadians in this respect. The clause introduced by the Liberals is, in a way, an admission that Canada's aboriginal people ought not to expect things to get very much better. It is like saying to them that many of them will continue to live in frustration, despair, dire poverty and far too often without opportunity and hope, but they should not worry about it. That will taken into account when the government decides how long to sentence them to prison when the time comes, when the predictable and inevitable higher rates of crime occur among aboriginal Canadians.
Meanwhile, the Alliance is claiming that aboriginal people are getting off too lightly. In the end I would have to say that it is like two sides of the same coin. Both the Liberals and the Alliance get an issue they can try to play to their mutual political advantage. Whether it is Liberal inaction or Alliance out and out discriminatory attitudes and downright prejudice, victims of crime, Canadian communities and aboriginal people continue to suffer.
Finally, any allegation that the Criminal Code extends preferential treatment to aboriginals is simply unfounded and manipulative of the public's understanding of the facts. What the code does permit is for judges to adopt the sensitivity and the understanding required when sentencing, in this instance when sentencing aboriginals. This degree of understanding is not extended because the justice system favours aboriginals but because it allows judges to implement sentences that are more fully contemplative and achieve the public and individual good. This specific discretion protects the public by allowing judges to impose sentences that are tailored to the rehabilitation needs of a particular segment of society, rather than confining a judge's discretion to imposing a one size, fits all punishment, that ignores the needs and realities of a particular individual group or community.
In case it is not already evident, it is not my position nor that of my colleagues to support Bill C-416. It has nothing to offer in terms of dealing with the real fundamental problems of crime and it will not change anything to the advantage of the broader community or of the aboriginal community. Supporting this bill would only lend credibility to those who wish to conceal and manipulate the real issues for their own political advantage.