Bill C-10 (Historical)

An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act

This enactment amends the Criminal Code to provide for escalating minimum penalties according to the number, if any, of previous convictions for serious offences involving the use of a firearm if the firearm is either a restricted or prohibited firearm or if the offence was committed in connection with a criminal organization, to provide for escalating minimum penalties according to the number, if any, of previous convictions for other firearm-related offences and to create two new offences: breaking and entering to steal a firearm and robbery to steal a firearm.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Ms. Jennings.

From the government's perspective, three out of four of the parties around the table today were elected in the last election with a mandate in their platform to bring in measures that target gun crimes. Three of the four—the Liberal, NDP, and Conservative parties—all mentioned increased mandatory minimum sentences in their platforms. It is with a clear mandate from Canadians that this bill, Bill C-10, was brought in. It includes targeted mandatory minimum sentences for serious firearms crime, use offences, serious non-use offences, and non-use offences.

Based on that, that's why we're here today. We've heard extensively from witnesses. I don't think the issue of mandatory minimums targeted at gun crimes is at issue at all among at least three of the four parties, because if we look at what we've been saying all along, it's something we've all committed to do. This bill provides a framework to do that.

Many sentences are targeted, many different mandatory minimums are in place in the bill. What I'm asking is for Madam Jennings or whoever else around the table to say where they'd like to see a change. We're talking about mandatory minimums and we're talking about firearms offences, and that's all this bill touches on. When you have a commitment to increase mandatory minimums for firearms offences, surely there's something in this bill that has merit; there's something in this bill that mirrors what you would have done anyway, or that was your commitment to do.

You mentioned targeted mandatory minimums, targeted penalties for gun crimes, so I'm asking: where do you see that taking place in this bill, and where do you see it perhaps going beyond what you would like to do? Perhaps there's some way we as a committee can address that. That's the approach we want to take.

The difference I see with this bill is that almost everyone around this table came to this Parliament with a commitment to get tough, to increase mandatory minimums on gun crimes. That was the premise, that's the basis, that's the foundation of the bill. We introduced a bill that does just that, and now I'm asking if there's some way you would like to see it changed to accommodate any concerns you have, to bring those forward. What would you like to see in the bill? In your opinion, where does it go too far, and where does it perhaps not go far enough?

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order on Tuesday, February 6, 2007, for a clause-by-clause consideration of Bill C-10 , an act to amend the Criminal Code on minimum penalties for offences involving firearms, and to make a consequential amendment to another act.

With us is the parliamentary secretary to the minister, Mr. Rob Moore; Mr. William Bartlett, senior counsel, criminal law policy section; and Ms. Julie Besner, counsel, criminal policy section.

Pursuant to standing order 75(1), the preamble is postponed in our clause-by-clause consideration. We will begin with clause 1.

Is there any discussion prior to entering into the clause-by-clause consideration?

Monsieur Ménard.

Organized Crime

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, I want to thank the hon. member for his question and also for his very hard work on the justice committee.

Gangs and criminal organizations have been growing in size, strength and wealth in this country over the past decade. This government has a very clear legislative package to address this problem. For example, Bill C-10 presently before the justice committee has targeted measures to disrupt criminal enterprises by establishing mandatory minimum sentences for gangsters and organized criminals who use guns, particularly prohibited weapons, to commit violent crimes.

[Sgt Larry Butler]

I'm not sure if any piece of legislation is going to stop anything anywhere. Street gangs, from my experience, are fuelled by a number of things, and I think one of the largest things fuelling it is ego. You can't legislate ego.

I think Bill C-10 is an improvement on the firearms legislation out there now, but as far as street gangs go—and I'm sure Mr. Gordon will agree—the street gang phenomenon goes back to social and economic bases. You spoke about the red and the blue scarves. That's a phenomenon from the L.A. street gangs, the Crips and the Bloods.

As far as a piece of legislation is concerned, I think things can be done in Parliament that will help. I don't think anything's going to stop it.

As far as feeling guilty about somebody getting shot, speaking for Vancouver only, there is such a possibility of that every single night out in the nightclub scene that if you gave us a piece of legislation to arrest and lock up and throw away the key on anybody we think has a gun, I still don't think we'd stop it. The flow of guns into Canada—and I can only speak for British Columbia—is out of control. We are taking offloads of guns in the numbers of 200 and 300 at a time, and they're just going out there on the street. They are expensive, but the drug trade gives people the money to buy these things.

Without getting into a whole lot of other philosophical discussions, I don't think we're going to stop it. We just need some tools to help curb it, but it's going to keep going on. It's a socio-economic thing and largely an ego thing, unfortunately.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I don't have a lot of time left.

My question is mainly for Larry Butler. I'd like to hear your view on the following question.

The Province of British Columbia and the Province of Quebec have adopted what, in politics, are called socialist assistance measures. In Quebec, all kinds of preventive measures are in place in an attempt to eliminate organized crime and participation in organized crime. We have free street workers, free psychologists, free psychiatrists, free social workers, shooting galleries where they give out free needles, free arenas and gymnasiums, volunteers to help people, free primary and secondary schools. There are all kinds of things that your province, like our province, provides in order to help the public.

However, barely three weeks ago, in Montreal, a person was walking with a red scarf on. One group, the Blues, shot at him. During the same period, barely three weeks ago, a number of youths who had exchanged songs through YouTube fought each other with guns because one didn't like the other one's song. You're familiar with the same kind of problem in British Columbia.

In my province, there's also a firearms problem. As you know, we've had the three biggest killings, the one at the École Polytechnique de Montréal, the attack on Valery Fabrikant and what happened at Dawson College. We've really had our quota.

Recently, however, a Bloc québécois member published a very good book on street gangs. I don't know whether you've had the opportunity to read it. This book shows that, despite all the free resources for helping youths to avoid getting involved in street gangs — we're told that youths of 12 or 13 belong to street gangs, as is the case in your province — you can currently buy weapons in Montreal in less than half an hour. You can even rent weapons there and return them afterwards. That tells you how big a problem this is.

We're considering Bill C-10. The problem this bill attempts to solve is that there are now 34 active street gangs in Montreal. We were unable to get rid of them, and, in addition, they're growing.

Today there are two philosophies. Either you pardon criminals and find all kinds of explanations, or you try to defend the victims and future victims. Bill C-10 may be the least costly measure that can help you.

I'd like to hear your comments on Bill C-10. You no doubt know that that's why you are here. In your opinion, could Bill C-10 prevent people from being shot at in the street?

We have to know what position to adopt. I don't want to find out tomorrow morning that someone was killed in the street because I made the wrong decision. That's my problem; it's a matter of conscience.

I'd like to know whether you think that Bill C-10 could help you.

[Larry Bagnell, Liberal, Yukon, YT]

We'll talk after, yes.

Related to the tools, this has been fantastic today, this much work. In our party we don't think Bill C-10 is going to help you because the judges already have the same maximum penalties now that they can give and this doesn't increase that, but you've given all sorts of great examples. I would suggest that with the arbitrary search related to the warrants, the wiretaps, the proceeds of crimes, there are lots of things we could do.

It might be helpful if, like the Hells Angels, you got your lawyers together to come up with.... Rather than waiting for us, because we and the Department of Justice often get sidetracked on things, propose some draft laws and work with the human rights groups to make sure it's acceptable so they don't come here and trash them. Get the whole package together, present it, and lobby us and the Department of Justice on that with the wording of the laws and everything. You might be able to move faster than by waiting for us. There are all sorts of discussions we could have on that. I'd love to, but we don't have time today. Hopefully we'll do it in the future.

I have a question for Mr. Gordon.

It's interesting talking about crime as a business and the deterrents to this business. I'd like to know from yourself or any of the witnesses if there are international examples of laws that we don't have in Canada now that have successfully provided this deterrent to crime and made it unpalatable so that they've moved to other countries. Obviously a lot of these things don't work in the United States. But are there laws that other countries have that actually have caused organized crime and street gangs to move because it's an unpalatable business decision to stay there?

[Rob Moore, Conservative, Fundy Royal, NB]

The reason I raise that is we are dealing in this committee with Bill C-10, and that's one of the things I think is good about Bill C-10. It targets those who are recidivist, repeat offenders.

We also heard testimony here on mandatory minimum sentences. On the first offence, there's not a whole lot that changes from the current regime. For some firearms offences now, there's a four-year mandatory minimum. Under Bill C-10 there would be a five-year mandatory minimum for some of those offences. If someone after being convicted for that offence goes out and commits another firearms-related crime, then there's an escalation of that mandatory minimum sentence. It's very much directed at what you're talking about, at people who, no matter what we do, are going to continue to commit crimes.

One of the things that was mentioned, and I'd like everyone's comment on this if possible, is when you take those chronic offenders—as you have labelled them—or recidivists off the street, that somehow there's some measurable improvement in public safety.

I know this committee travelled to Toronto and we heard from Chief Blair. He mentioned one operation they had in a neighbourhood in Toronto where, by taking the few offenders--and in every community there are only relatively few to the entire population--off the street for even a short period of time, they saw a marked, measurable improvement and a decrease in crime in that district. Can you comment on that? How important is it to take some of these chronic offenders, who no matter what you do...?

It's remarkable again, when we hear about that case, I think you said it began in 1995 or so, and finally people were sentenced in 2002, some seven or eight years later, only to be back on the street within a matter of months. Can you talk about that?

[Chief Jamie Graham]

Sure, there are a couple of points. Larry covered most of the material I was working on.

As you address the specifics of Bill C-10, I think this was a specific interest that I was asked to bring to this by some of my colleagues. We fully support the minimum and maximum sentence provisions. I think it's three...as it advances. I couldn't tell you how much we support that, as does certainly every police officer who I talk to nationally.

I'm not a lawyer, so I won't try to craft the words that go into legislation, but any time you craft legislation dealing with firearms, we would simply ask you to consider the words “imitation” and “replica” in your dialogue. It means that any time you make an order or there's a prohibition order or a sanction against a firearm, you always have to add the words “imitation or replica” afterwards.

The reason is the huge numbers. We seized, I think, 250 firearms off offenders in Vancouver last year. Ten times that were seized in terms of pellet guns and imitation replica guns. You cannot tell the difference. You've seen it all on TV.

Many times the prohibition orders that are given by the courts will ban an individual for ten years from having firearms or ammunition or explosives, but they leave that replica and imitation.... It's a huge advantage to the police to have that ban in there. We try to seek those at the local level, but to have it enshrined as part of the sanction instead of in a probation order would be very helpful.

The imitation law.... I don't want to harp too much on the imitation replica. In Canada it's an offence to be in possession of an imitation weapon for a purpose dangerous to the public peace. The trouble is that's a very high threshold and it's very hard to prove. So we would like to see almost the reverse onus. If you are in suspicious circumstances and in possession of a replica gun, in the reverse onus you have to explain why you have that gun. This would allow us to deal with the innocent high school kids who have a pellet pistol in their car and mean no harm...to the drug dealers in Vancouver who pull up their shirt to threaten purchasers by flashing an imitation gun.

In Vancouver we lead the country--I'm not proud of this--in armed bank robberies. I think we have three times as many in Vancouver as they do in Toronto, and the majority of them are lone bandits producing an imitation weapon.

In Bill C-10, under clauses 17 to 24, there's a list of offences that are outlined in there, a series of offences. I would simply ask, in addition to the offences that are already articulated, that you consider break and enter and commit.... It sounds like the old break and enter, B and E, of a dwelling house. That's not the case. It's break and enter and commit an indictable offence that would allow us to deal with home invasion. Also conspiracy--anyone charged with conspiracy would fall under the same....

These are just add-on sections that we think would be somewhat helpful to us. I'm sure the lawyers on the committee would help you work that through.

There's a provision in there of transferring gun licences. We would ask that there be a provision in there for an individual to have a thumbprint on a gun licence. It allows an officer on the street to quickly look at an individual's thumbprint and compare it to a licence. You can tell even with the naked eye whether it's the same person. There's an IT solution to how that can be done on these plasticized cards.

I read with interest the Canadian Bar Association...and there were a couple of religious groups, I think, that presented to the committee. Excellent presentations. I disagree with some of the things they said. They had their statistics wrong in a couple of areas. Violent crime in Vancouver is up 6%; it's not down. We are, as I said, the bank robbery capital. We seize hundreds of loaded firearms a year.

I'm very proud that next year will be 40 years in policing for me. I've worked many years with the RCMP, and my colleagues and P.Y. and I are on a couple of committees together at the national level. The support from this committee, at least what I've heard so far, is very positive.

I'll just end this on a more global level. We accept the fact that the best deterrent in the world to offenders is to sow the seed in the mind of the offender that there's a likelihood they'll be caught. That's our biggest deterrent. That's the number-one prevention strategy we have. If two offenders are planning a crime and they know there's a chance they'll get caught, they will not do the crime. They just won't. They'll go elsewhere. The fear of going to jail is not a large deterrent, but I'll tell you, it sure is helpful.

We don't particularly like sending more and more individuals to jail for long sentences, but as Larry pointed out, when they're in jail they do not hurt anyone else for the time they're in jail, and that cannot be overstated.

We have 1,200 officers in Vancouver, and I've got six full-time surveillance teams—full-time. Four of them are strike force teams and two are patrol based. Now, instead of doing global investigations, we track what are called “chronic offender programs”. We identify through various means who the chronic offenders are.

Our definition of a chronic offender is if you commit 12 or more crimes you are arrested for in a year—that's chronic. We have about 80 such offenders now, and we target them; we pick them up one at a time. Once we get to the bottom of the list, we go back to the top and keep getting them. We started off with five indictable offences a year for a chronic offender, and we had 800 such offenders in Vancouver. The pool was too big, so we just moved the goalposts and raised the numbers. That gives you an idea of the level of offenders we deal with and the violence.

Anyway, thank you very much for the opportunity to say a few words. I'd love to be able to answer your questions.

The support is really appreciated.

[Sergeant Larry Butler, Sergeant, Vancouver Police Department]

Mr. Chairman and committee members, I'd like to speak today with a little more concentration on the city police and the street-level focus of organized crime, with a particular focus on firearm aspect.

On the gang demographics a little bit in the Vancouver area,it's a very popular area for gangs, ranging from highly structured international criminal organizations such as the Hells Angels, to lesser known or less obvious gangs, such as Asian Triads, Indo-Canadians, Persians, and the like.

We have approximately well over a hundred Hells Angels within the greater Vancouver area. The other gangs range anywhere from just under a hundred to several hundred members. What we're finding more and more is an ever increasing conflict with respect to the drug distribution network and turf wars, and even clashing on the street just with respect to egos. The levels of violence that we're experiencing are also significantly on the increase. Never in my career have I seen it the way it is becoming in the city of Vancouver. The elicit drug trade amongst these organized crime groups is driving the violence levels through the roof. We're seeing shootings on a regular basis. It's commonplace in the city of Vancouver to go out to nightclubs on any given weekend and find gangsters in the nightclubs, wearing bullet-proof vests. Even the doormen and the staff at the nightclubs are starting to wear body armour just when doing their job in a nightclub, due to the indiscriminate firepower that's on the street and the shootings that have taken place in the city of Vancouver. Of particular concern and interest to us is the new firearm legislation from a city and a street-level point of view.

I'd like to give a couple of examples of some of the recent shootings that we've had in Vancouver, just so you can grasp what is going on in Vancouver. A nightclub in Vancouver called Loft Six, a busy nightclub in the downtown core, was full of patrons on a particular night it, at about two to three in the morning. A conflict erupted between the Hells Angels and Indo-gangsters. On that particular night, there was a shooting between the two gangs. We had nine people shot, six of whom were innocent. We had three people killed and one crippled for life. One of the individuals who was killed and the crippled individual were innocent people caught in the crossfire. Three handguns were used. We recovered two handguns, neither of which were used in the shooting, so there were at least five handguns involved in the nightclub on that particular evening. Of note is the fact that all three suspected shooters from that night are now dead from other shootings. It's just proliferation.

Purple Onion is another Vancouver nightclub, located very close to Loft Six. Again, it's a very busy nightclub, usually full of patrons. A dispute among Asian gang members erupted outside the door. What happened was that a gun was drawn and a young lady stepped between the combatants to try to quell the situation. She ended up getting killed. That night there was one handgun used. Seven people were shot, including three innocent people, with two people killed.

The most recent example was in the greater Vancouver area, in what I would describe as an urban park surrounded by multi-family dwellings, condominiums, and the like. It was a Persian gang conflict, and it was clearly an orchestrated shooting. On that particular night, numerous firearms were fired, including assault rifles and handguns. Approximately 150 rounds were fired in this little melee. Three people were shot and injured. The surrounding townhouses took the brunt of the rounds that were fired, with shots going through people's homes, given the high firepower of the assault weapons. One narrowly missed an infant in a crib.

I can't explain enough the seriousness of the firepower that's being used in Vancouver. I'm not sure if the messages or the media are getting back here with respect to what's going on. In British Columbia last year, we seized over 2,300 firearms. Almost 80% of the shootings were in public places, coming at the cost of human lives, those of innocent people and bystanders. It's not just the gangsters. The gangsters don't seem to be able to shoot that well. Like I said, at Dover Park, 150 rounds were fired and nobody was killed, but three people were injured. There's just indiscriminate firepower out there on the west coast of Canada.

With respect to organized crime legislation, I think Deputy Commissioner Bourduas laid things out very clearly. We agree with everything he has spoken to. As a member of a municipal police department, I can say that these types of large and lengthy investigations are difficult and costly for us to undertake. In British Columbia, we undertake the integrated model that was spoken of. One in particular was focused on the east end chapter of the Hells Angels, Project EPANDORA. That was a partnership led by the Royal Canadian Mounted Police, the Vancouver Police Department, and the combined forces special enforcement unit.

This investigation was about a two-year investigation. At the culmination, we ended up seizing what I would describe as the war chest of the east end chapter of the Hells Angels, which included dynamite, blasting caps, hand grenades, fully automatic weapons, silencers, and handguns. The criminal organization legislation was used to its full extent, with the cooperation of the Department of Justice and the regional crown counsel. In that investigation alone, 39 charges of gangsterism were laid, between facilitating, participating, and directing. It's very useful legislation. It's very helpful. But as I say, from the street officers' point of view, we're very concerned with the firearms.

On Bill C-10, the proposed firearms legislation, we're very optimistic with respect to the minimum mandatory sentences that are proposed. I know there are all sorts of studies from all over North America with respect to jailing people for longer periods of time. Does it really help? I think the studies go in both directions. I know from the street level and from the public safety level that if you take the guys who are out there doing the crime off the street for three years for the first offence and five years for the second offence, those are individuals who are not going to be shooting people any longer.

I also think there's a huge deterrent factor when it comes to the younger people who are looking at the gang situation and are trying to decide if they're going to go down that path in life. When one of their brothers goes away for three or five years, I think it does weigh heavily on their thought process.

Again from a street officer's point of view, one thing I would like to suggest or put on the table is a tool that's commonly used by the police, and that's the ability to search an individual when the police officer can illustrate articulable cause sufficient to justify the search, based on the need for preserving the safety of both the individual and the officer involved.

This concept of articulable cause arises out of a peace officer's common-law powers of search and is based largely on case law. The threshold necessary to perform a search of an individual based on articulable cause is reasonable suspicion, which is significantly lower than that of reasonable and probable grounds, as defined by the Criminal Code of Canada. It is still respectful of the Canadian Charter of Rights and Freedoms. The frailty of this is the fact that it's based on case law and not legislation.

As we know, case law has the ability to change dramatically and rapidly, and it can have a sweeping effect through the Canadian court system. It would be interesting and highly beneficial to see Parliament create legislative authority that recognizes the greater good of protecting society over protecting the rights of an individual. This can be accomplished by lowering the threshold to legally search a person of a notorious character and his immediate surroundings, such as an automobile, for a firearm or a weapon dangerous to the public peace, from “reasonable and probable grounds” to “reasonable suspicion”.

In proving reasonable suspicion, numerous factors can be considered, including the individual's previous violent background; gang involvement; location; documented associations with other know violent criminals or gang members; the individual's actions at the time of the investigation; and other relevant information and intelligence. To illustrate this, I would point to one of the enforcement models that we use in the city of Vancouver. On Friday and Saturday nights, we use what we call a firearms interdiction team because of the number of shootings and firearms in Vancouver now. Simply put, this is SWAT members and gang squad members going out and hunting down gangsters, trying to take guns off the street.

One of our biggest tools in this area is articulable cause, where we embark on some type of investigation or lawful detention, such as a Motor Vehicle Act offence or anything, and using articulable cause, we will then search the person and his vehicle. Like I say, it's a valuable tool, but it's based largely on case law, which could be taken away at any time and it would affect officers across Canada.

What would be very valuable is to have it codified by legislation, allowing us not first to need another type of law, such as the Motor Vehicle Act, to initiate the search and work within the laws of Canada. What would be very valuable is to identify this person of notorious character as a gangster, and someone who's most likely got a gun on him or in his vehicle, and that would be good enough for us to initiate the search for guns. Because that's what we're trying to do in the long run, get these guns off the street so they don't kill innocent people.

With respect to the Hells Angels and the effects of the gangsterism laws on these criminal organizations, I would suggest that in Vancouver, the greater Vancouver area, the Hells Angels are really the only ones that are concerned about the gang legislation, as it stands. We all know, and I'm sure you're all aware, that they have a national fund, they call it the C-95 defence fund. They put money into a fund to fight the actual legislation itself. Every member participates, contributes, and that's what they do. They've identified it as a definite threat and they put money towards fighting that threat.

In British Columbia, we have very media-savvy Hells Angels. They're very concerned about their public image. They've actually changed the name of their C-95 defence fund to the West Coast Freedom to Associate Society. It sounds very nice, but basically it's a fund to fight the organized crime legislation.

We find in our Hells Angels trials.... We had a Vancouver police investigation where we convicted two members of the Nomad chapter, Hells Angels, in British Columbia, of conspiracy to traffic cocaine, trafficking cocaine, possession of proceeds of crime. A lot of times the Hells Angels aren't concerned about being found guilty or not. They are under the gang legislation. But we're also finding that their biggest concern is they want to find out how we did things, who was the rat, that type of thing.

And they are masters at delaying the court process. To give you an example, a very short example, of the delay process these guys do, in this case it was a 1996-97 investigation, arrests were in 1998, they were convicted in the Supreme Court of Canada in 2001 and sentenced to four and a half years in prison. They launched an appeal to the B.C. Court of Appeal, and subsequently the Supreme Court of Canada, and these individuals eventually went to jail for four and a half years, commencing November 2005. Eight months later, on a 55-month sentence, one of these individuals is out on parole already. So the time and money spent by the criminal justice system on these individuals is phenomenal. And it was a relatively simple case, nothing like a criminal organization case. That is just to give you an idea of another type of battle that we fight out there with these criminal organization groups, who are masters of delay in the court system.

In summing up, I would just like to say thank you very much for having us here. It's an excellent opportunity to get our point across. As I said, I talked to the fellows at work, and I really wanted to bring a street perspective to the committee, as opposed to the large criminal organization investigative perspective, because I knew that our compatriots here would certainly cover that area and I felt it was important to get more of a street-level perspective. I know all the large cities across Canada are dealing with these similar firearms issues.

Thank you very much.

[Randall Richmond]

I want to start off by saying that I don't have a mandate here to comment on whether Bill C-10 should be adopted or not. I don't have a mandate from the Attorney General of Quebec to come out for or against the bill, so any comments I make on it are purely personal and engage only myself.

But I have had an opportunity to look at Bill C-10. I've also had an opportunity to read many of the transcripts of witnesses who came here in previous meetings of this committee. I can say to you, definitely, I am not against Bill C-10 at all. I was surprised to read in many of the transcripts of other witnesses that the debate seemed to be on whether mandatory minimum sentences are good or not. It surprised me, because in Bill C-10, for almost all the offences that are mentioned there, there already is a mandatory minimum prison sentence, and all that's being done in Bill C-10 is to raise it slightly in the case of restricted and prohibited firearms. In most cases it's an increase of one year for a first offence, and in some cases it's an increase of two years.

The really big increases are for repeat offenders who come back for a second or a third time within a period of 10 years. In the case of someone who hasn't learned his lesson the first time and is repeating within 10 years, I don't think those sentences are abusive.

So it's hard to see this legislation as extreme. I don't think it's extreme in any way. I think it's a serious attempt to try to attack a growing problem—that is, the use of firearms, particularly handguns—and it's true that we've seen that all across the country.

[Sgt Guy Ouellette]

For example, Randall talks with the attorney and asks why he's withdrawn his gangsterism charges. There's a reason for everything. You have to talk and to ensure that the Criminal Code of Canada is uniformly enforced, not because we passed an anti-gang law because there was a biker war in Quebec and because it was a bit different at the time, or because we now want to pass Bill C-10 because things are getting a lot worse in Toronto, where a lot of weapons-related murders have been committed. There's a firearms problem in Alberta, in Edmonton, Calgary and Vancouver, but there's big pressure in Toronto because there was an innocent victim. There were 29 innocent victims during the biker war, and that happened in Quebec. Perhaps we should disregard these things and say to ourselves that, in Canada, we have a Criminal Code, a Charter, laws to enforce, and that it would be preferable that we all work toward the same end.

A Supreme Court judgment in the Stinchcombe case concerns the disclosure of evidence. In the context of the biker bill, the criminals have the 375 CDs concerning disclosure of evidence. In Winnipeg, in the context of Project Defence, the criminals have the 15 CDs also concerning disclosure of evidence. However, when I, as a police officer or expert witness, have to file an application concerning gangsterism and know what was seized in Winnipeg, I have trouble getting what I need, madam. In Ontario, when a request is made in the Lindsay-Bonner affair, a search warrant is necessary in order to conduct a search of the police in Delta, British Columbia, whereas all the bandits in the village have the information. It's nonsensical. We must not give up. We're talking about these things, and that does some good.

[Sgt Guy Ouellette]

It's not that nothing works; it's that we have to use the tools we have and to make the most of them.

As a result of Bill C-10, you're in the forefront with regard to firearms, which is a Canadian, indeed global problem. You are lucky to be at the head of the parade and say that, for offences, things will happen in such and such a way. There's an aggravating factor with criminal organizations.

There are one or two attorneys in Quebec who specialize in street gangs. As for those who specialize in bikers, they belong to a small group called the Organized Crime Prosecutions Bureau.

We indeed all have to work together and acknowledge that we have a problem and that we'll try to improve our communications, to exchange, for example, with the guys from Manitoba.

[Sgt Guy Ouellette, Retired Sergeant, Sûreté du Québec]

I realize I'll have to be very concise in the next 10 minutes, Mr. Chair.

I was a police officer with Sûreté du Québec for 32 years. I've been retired for six years. I'm highly specialized in organized crime, both biker and Aboriginal organized crime. Most of the case law that was prepared for this committee, whether it be the Leclerc decision, the Carrier decision or the Lindsay-Bonner decision, concerns trials in which I had to testify as an expert witness.

The first anti-gang law was passed 10 years ago on May 2. I followed it, and I'm still very much involved at all levels because I still have to testify regularly across Canada in various cases.

I would have liked to tell you about the opportunity I had to write a book, which unfortunately is only available in French. It concerns the president of the Hells Angels, Maurice Boucher. By the way, those who read the Journal de Montréal this morning will see that picture on the front page. They say the Revenue Department will be seizing Mr. Boucher's houses. I want to tell you that the day we think about seizing their assets, we'll have understood that that's their life blood.

Bill C-53, which parliamentarians passed on November 25, 2005, hasn't yet been used by any police force in Canada. Why? I'd like to tell you right off the bat that organized crime very often takes advantage of the fact that the system is disorganized. It's disorganized because police officers don't talk to each other, because federal agencies don't talk to provincial agencies, because Bills C-95 and C-24, which have become the anti-gang laws, were passed because there were gang wars in Quebec. The rest of Canada didn't care; they were killing each other in Quebec.

We have a bill, Bill C-10, on firearms. Why? Because people are shooting guns in Toronto. And last year in Toronto, 52 murders were committed with firearms, including that of a young girl, Jane Creba, on December 26. Now there's pressure, and we're going to amend the Criminal Code of Canada because, I'm telling you and I repeat, it's the Criminal Code of Canada, not that of Quebec or Ontario.

We've had quite extraordinary results — Mr. Richmond told you about that — with regard to convictions for gangsterism in Quebec. I'd like us to do the same thing in Ontario, Manitoba and Alberta.

You'll be hearing from someone from the Vancouver police department two days from now. Do the same thing for Vancouver, and you'll see that there have been very few gangsterism convictions there. You'll realize that, in the other Canadian provinces, when charges are laid for offences under Bill C-24 and C-95, they are withdrawn in exchange for a guilty plea on drug trafficking charges. That's what's called plea bargaining. It has a harmful effect.

I have two examples to cite on this point: one occurred in Ottawa and concerns the Hells Angels Nomads, who are based in Ottawa, in your beautiful city; the other one occurred in Oshawa, another project of an Ontario police department. The guy is going to be sentenced to six years for drug trafficking. But we have the Canadian Conditional Release Act. On a first sentence for drug trafficking, an individual is eligible for parole after serving one-sixth of his sentence; that's called accelerated parole review. As a result, a guy who is sentenced to six years can get out of prison after one year.

What's been done? If he had been convicted on gangsterism charges, the penalty would have been longer, harsher, but we could have asked that he at least serve half his sentence. That would delay his conditional release by the same length of time and would send a message. However, the message we're sending right now is this: we're charging you with engaging in gangsterism, but someone in British Columbia, the president of the Hells Angels, is filing an application to challenge the wording of section 467.11 because it isn't clear. Oops! Another trial is being held in Quebec in which lawyer Benoît Cliche is also challenging section 467.11. And now the blows are coming from everywhere. If you need information that the Vancouver police department has gathered as part of their investigation, I can't give it to you.

It's very, very hard to exchange information. That goes as far as it went in the Lindsay-Bonner case, which you have in your case law report. The Ontario Provincial Police was required to go and execute a search warrant in the exhibit vaults of a British Columbia police department to obtain evidence that would help it convict criminals on gangsterism charges.

We have to stop making up stories, splitting hairs and believing that we're good and nice. We'll be able to deal with organized crime if we talk to each other and if everyone in the system works together.

You parliamentarians have to decide on the fate of Bill C-10. You're leading the parade. You'll have to decide, to conduct a clause-by-clause consideration of a bill on firearms. Thank you! You're giving police agencies tools. Now they have to use them. Thank you! You're giving Crown attorneys tools. Now they have to use them.

Before Bill C-10, section 95 of the Criminal Code contained a provision stipulating that the minimum penalty for possession of a firearm was one year in prison, if the holder was charged with an indictable offence. But only a fine is provided for if the individual is found guilty on summary conviction. I'll tell you that, in my 10 years of fighting organized crime very closely with the units in the field, in a number of cases, people are charged under the summary conviction procedure in order to avoid work, save time and avoid a trial. So the criminals pulled up, took out their little case and paid the clerk their little fine. And we had to start all over again!

As regards gangsterism charges, subsection 515(6) of the Criminal Code provides that it is up to the accused to provide evidence in order to obtain his release, to give the system guarantees. It wasn't normal that there was an extensive operation in Toronto in which 125 individuals related to street gangs such as Jane Finch and another, the Jamestown Crew, were arrested. It wasn't normal that, for the vast majority of these people, it was the third time this year that they were arrested because they hadn't been charged with gangsterism and that the justice system had released them for all kinds of reasons.

For the majority of people who are charged in Quebec, there are automatic release investigations, particularly as regards organized crime. Moreover, I would say that, in more than 60 or 70 percent of cases, people will be detained following their release investigation, which is conducted with the assistance of police officers, experts and so on.

We have another problem in Canada. We want to have laws, we want to have a lot of things, but we have a big file on the Italian mafia. I checked with Claude a little earlier: we don't have an expert witness who can testify in order to prove gangsterism.

I've been retired from the Sûreté du Québec for six years, but I don't have a successor. I'm retired. When you retire, you're supposed to be at home in a rocking chair watching the cars go by your house. But they call me regularly because they have a problem and have to provide evidence of gangsterism. It takes an expert witness who is able to tell the story. So organizations have to provide for that.

It's not normal for a guy like Harry Delva, who, as he told you, is in the field in Montreal North and Ville Saint-Michel to tell you that, every day, in the pool of emerging street gangs, he sees youths of five, six, nine, 10 and 15 years of age, which corresponds to the real police definition of street gangs. However, every six months, he's forced to fight with various departments in order to authorize a program to train a successor. There's nothing permanent in his work, and he has no security. However, it's announced that there will be 2,500 police officers or more and $10 million to invest in prevention programs. Bu, every six months, he is forced to fight for $90,000 in funding. And yet he's the one who has them in his face every day.

I'll conclude by telling you that, in the few minutes you've allotted me, organized crime has fought the disorganized system. The day we manage to regularize the situation and work together just a little bit, there will be no more criminals. I wrote in my book that I find it hard to understand why 15,000 police officers can't control 150 bikers. The answer is simple: we all have to work on the same side and stop fighting over details. Give us the tools we need, and the police officer in the street will make his observations, the investigator will investigate, the attorney will do his job, the judge will decide, the conditional release guy will manage the sentence, and you'll pass laws to help those people. You have a social responsibility toward the citizens of Canada. But there won't be any difference between a gangsterism crime committed in Quebec and another committed in British Columbia, and no one in British Columbia...

Only three years ago, in 2003, the Hells Angels did a big national run in British Columbia. Quebec police officers who went to help their British Columbia colleagues were told that, if one of them was seen monitoring a Hells Angels member, he'd be put back on an airplane and sent home. Such is the fight against organized crime in Canada. I don't want to be very negative, because I still like doing what I do, and I still say yes when I'm asked to go and testify, but I think we have to stop thinking that we're good, that we're nice and that everything is going to solve itself. We all really have to work together.

You represent different ridings in Canada. Apart from Mr. Bagnell, from the Yukon, where the British Columbia Hells Angels go from time to time, all of you have horror stories to tell, whether it be about the Hells Angels in Windsor, the Bandidos in London, street gangs and bikers in Moncton, or about Asian street gangs that do drive-by shootings in Calgary. The same thing is going on in Montreal with the Haitians. The same is true anywhere else in Canada.

So from the moment we work together, we'll achieve good results. Thank you.

[Randall Richmond, Deputy Chief Prosecutor, Organized Crime Prosecutions Bureau, Department of Justice (Quebec)]

Thank you very much.

My name is Randall Richmond. I have been a lawyer and a prosecutor since 1983, and prosecutor for the Province of Quebec since 1988.

I began pleading organized crime cases in the 1990s and I worked in the Proceeds of Crime Bureau (BLPC) from its inception in 1996. In 2000, when the Quebec Ministry of Justice created the Organized Crime Prosecutions Bureau (BLACO), I was named deputy chief of this office, a position that I still hold today.

In addition to my administrative and supervisory responsibilities, I personally pleaded the cases borne from the shooting for journalist Michel Auger. I also pleaded the trial borne of Operations Springtime 2001 and implicating the Hells Angels Nomad Donald Stockford and his associate, the former Hells Angels national president, Walter Stadnick.

The minutes of proceedings of the Standing Committee on Justice and Human Rights indicate that the committee wishes “to examine the overall effect on gangsterism of Bills C-94 and C-24, adopted in 1997 and 2001”.

As a practitioner specialized in organized crime cases, I can say without any hesitation that the legislative changes brought about by Bills C-95 and C-24 have been extremely helpful and have had a significant impact on our fight against organized crime in Quebec. We have used the tools provided to us by these two bills on a regular basis and continue to do so.

The changes that have been most useful to us can be summarized as follows: wire taps are available more easily and for longer periods of time; infiltration of criminal organizations is easier; pre-trial custody is easier to secure; sentences are longer; and convicts have to serve more time in jail before being released on parole.

Quebec was the first province to apply these new measures and remains the one that has applied them the most. In the Organized Crime Prosecutions Bureau alone, we have charged over 1,000 people since 2001, due in great part to the tools provided by C-95 and C-24 which facilitated the investigations. The acquittal rate in these cases is less than two percent.

Among these people, many were charged with gangsterism, either in its original form as provided by C-95 or in the form modified by C-24.

Since the creation of the Organized Crime Prosecutions Bureau, its prosecutors have secured the convictions of 286 people for criminal organization charges.

Consequently, we have met the following objectives.

First, end the biker gang war that caused 174 deaths and 150 attempted murders.

Second, break up and put an end to the Quebec Nomads chapter of the Hells Angels as well as the puppet club, the Rockers, by securing sentences of 20 years in prison for the Nomads and 15 years for the Rockers, on average.

Third, suppress crime by the Hells Angels across Quebec. Consequently, as of 2005, half of the Hells Angels in Quebec had been neutralized because they were either in jail, on parole, or on the run.

Fourth, break up and put an end to the Bandidos biker club all across Quebec.

Other beneficial effects of our work are worth mentioning: putting an end to biker impunity, putting an end to the climate of fear, and exposing the true nature of the criminal biker gangs. Obviously these results cannot be explained exclusively by the new anti-gang provisions of Bill C-95 and Bill C-24. They must be attributed to the combined effect of the legislative changes with other measures, such as the creation of specialized police task forces, with the participation of different police agencies; lengthy police investigations that targeted whole criminal organizations; the use of civil infiltration agents; the creation of specialized teams of prosecutors, such as the Proceeds of Crime Bureau in 1996 and the Organized Crime Bureau in 2000; the construction of the Grouin Judicial Services Centre; and the renovation of several courtrooms around Quebec, which allowed for the instruction of several mega-trials in different places at the same time.

The results obtained demonstrate that it is possible to prove gangsterism, but one should not conclude that it is easy to do so. On the contrary, it can be arduous. In almost all of the cases where we have charged gangsterism, this came after lengthy investigations of 12 to 24 months, during which wiretapping and physical surveillance were carried out and prosecutors were involved as legal advisers during the investigations.

In addition, in 90% of the cases, the prosecution had at its disposition a special witness, that is, an informant witness or a civil infiltration agent. The special witness facilitates the proof of gangsterism, because he has been a member of that organization and has participated in its activities. He can, therefore, testify to the existence of the organization, its structure, its hierarchy, the identity of its members, and its criminal activities.

A notable exception to this is the recent case of R. v. Aurélius, where 15 people were convicted, including five for charges of gangsterism, without the help of a special witness. In this groundbreaking case, the first to convict a street gang of gangsterism, the prosecution had to rely on evidence from wiretaps, physical surveillance, and about 40 drug purchases made by police undercover officers. It goes without saying that all of these investigative techniques can be expensive.

In conclusion, proving gangsterism with the present legislation is indeed possible, but the necessary resources must be available for investigation and prosecution.

With regard to Bill C-10, it is likely that for most prosecutions of a crime committed with a firearm, proving the use of a restricted or prohibited firearm will be easier than proving a connection with a criminal organization. However, there are cases where long-barrelled guns are used by criminal organizations; for example, see the case of R. v. Rodrigue at the Supreme Court of Canada in 2005. There are other cases where firearms are used in crime, but never found by the police, which can make it more difficult to prove the use of a restricted or prohibitive firearm than to prove the connection to a criminal organization.

So there are indeed circumstances where the connection to a criminal organization can be seriously considered as an aggravating factor in sentencing for a crime committed with the use of a firearm.

Thank you.

[Royland Moriah]

It's a broad question in some senses, because when you're talking about discretion under Bill C-10, there are a couple of things. First is the general issue of whether or not people believe judges are using appropriate discretion in dealing with sentencing issues. That's one of the things underlying some of the discussion we're having here about Bill C-10, and certainly about the push to implement mandatory minimums.

What we have to think about first when we're talking about judges' discretion is that they are experts to some extent in the field they're working in. They were appointed through a very good process in Canada in terms of the way we decide who our judges are going to be. So even though they are appointed, it's a very open and transparent process that is not as political as a politician choosing a particular person.

In terms of the actual use of that discretion, we have to realize judges' discretion covers a number of areas, as you've said, and particularly in sentencing you have to realize we're talking about mandatory minimums. But as some of my colleagues have said several times today, judges can always implement a range of sentences. The issue is whether or not we believe they're doing so appropriately and whether mandatory minimums will be the panacea to make sure they do so. From the information we have available, that doesn't happen, because what happens is the discretion judges have in terms of charging and determining sentences merely gets transferred to another player within the judicial system, whether it be the police or the prosecutors. What we have to think about first is that judges have the ability to give at least that mandatory minimum sentence, but they also have the ability to give a larger sentence.

What we have to be concerned about particularly for the African Canadian community, recognizing we have racism within our criminal justice system, is that any exercise of discretion should be done in an open and transparent manner. That's particularly important in sentencing because you have the ability to review sentences, to appeal them, to determine whether or not they are appropriate in any given circumstance. Unfortunately, when you have mandatory minimums that shift the judicial discretion to police and prosecutors, that process is no longer available, and that's particularly problematic for communities such as African Canadians, such as aboriginal communities that have disproportionately borne the brunt of a discriminatory use of discretion within the criminal justice system.

So, yes, we want to make sure judges use their discretion appropriately, but we have to realize they have processes available to do that. They have minimum and maximum sentences they can impose. More importantly, it's important that whoever is exercising that discretion is doing so in an open and transparent way that can reviewed.