Justice Committee on March 30th, 2009

[The Chair, Conservative, Ed Fast]

Minister, thank you for appearing before us.

Mr. Murphy, you still have two minutes.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chair.

I wanted to follow up on the question I was asking the minister about the definition of criminal organization. I want to make sure of something. Typically in a gang there's a leader, and a gang leader might ask a gang member to do something, like shoot someone in public. Unless we read in the conspiracy provisions, it's not clear to me that the new act traps the gang leader, the gang boss.

Can one of you shed some light on that?

[William Bartlett]

First of all, Mr. Murphy, the particular offence, the drive-by shooting offence, does not have to have a direct material benefit link. I think there's a misunderstanding about where that element of the definition comes into play. It's only part of the definition of whether or not there is a criminal organization in existence. Once you establish that, you do not have to show that in the particular case the purpose of that offence was to gain a material benefit.

Secondly, there is case law that says a material benefit could be the kind of turf war, gaining of turf, that is often the basis for these kinds of intimidation offences. It doesn't necessarily have to be simply a straight financial benefit. If you're showing—

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Time is running out. What about the gang leader question?

[William Bartlett]

There is already an offence in the Criminal Code, section 467.13, for anyone—not necessarily a gang leader; it can be people farther down in the structure of the gang, assuming it has a structure—who instructs somebody to commit an offence for the benefit of a criminal organization. It's quite a serious offence. It's a life imprisonment offence.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Perfect. Thanks.

[The Chair, Conservative, Ed Fast]

We'll move to Mr. Moore right now.

Mr. Moore, are you ready for a question?

[Rob Moore, Conservative, Fundy Royal, NB]

Sure. Thanks, Mr. Chair, and thank you to the witnesses for being here.

I have a question on the interplay here, if you could comment on the Tackling Violent Crime Act in the last Parliament. We had provisions dealing with an escalating mandatory minimum penalty, should someone use a firearm in the commission of certain criminal acts. The law had stated there was a four-year minimum in place, and the law was changed. The proposed change was that it be five years on the first offence, seven years on the second, and ten years on the third. As the bill came out of the committee, it was down to five and seven, and seven on subsequent offences.

What would the interplay be, if at all, between those minimums passed in the Tackling Violent Crime Act and what we have here on drive-by shootings?

[William Bartlett]

The bill would apply exactly that same penalty as was applied in the Tackling Violent Crime Act to a group of eight offences, including section 244, discharge of a firearm with intent to harm someone. This offence is very close to that offence and bears the same penalty, with the distinction that there may not be evidence that they had a particular target. In this case it would be the same—four years minimum, but five years if you can prove either a link to organized crime or that they used a prohibited or restricted firearm.

[Rob Moore, Conservative, Fundy Royal, NB]

Okay. One thing that hasn't been discussed much is the provisions regarding assaults or offences against police officers. Can you lay out for us the change that is put in place, specifically how that's different? I know it's been well received. We had representatives from the police here. The provisions were certainly well received. How will they come into place, and how are these officers better protected by the provisions?

[Matthew Taylor]

What we have in the Criminal Code right now is, I guess, what one could call a partial scheme with respect to police officers and protection afforded to police officers. We have section 270, which is a simple assault of a peace officer acting in the course of their duties, and at the far end or the more serious end of the spectrum, we have an automatic first degree murder, where a police officer is killed while acting in the course of their duties.

What Bill C-14 proposes to do is plug the gap, so to speak, by creating two new offences, one that would deal with assaults against peace officers causing bodily harm, and one that would deal with the aggravated assault of a peace officer—the most serious assault. What this does is create a complete and separate scheme to respond to violence committed against police and other peace officers.

[Rob Moore, Conservative, Fundy Royal, NB]

I think we're all familiar with it. You read your local paper, and from time to time you hear of someone charged with the offence of assaulting a police officer. What's contemplated in this bill then are actions that go perhaps beyond what would be a less serious assault into the realm of something more serious. Then that action is pulled out and distinguished if it was taken against a police officer. Is that right?

[Matthew Taylor]

That's exactly what it's doing. It's proposing to address the more serious offences, and in addition, Bill C-14 would codify the principle that in sentencing for such attacks, which undermine the justice system more broadly, judges would be required to consider deterrents and denunciation as primary sentencing objectives.

[Rob Moore, Conservative, Fundy Royal, NB]

We're probably all familiar with, as I said, the assault of a police officer. What are some examples that this new bill contemplates? Can you give a scenario, a hypothetical, that goes beyond assault of a police officer as we currently know it?

[William Bartlett]

An example would be any case in which a weapon was used--a knife or a firearm. Often if a firearm is involved, it may be a more serious offence, but a knife might be a common weapon used in those kinds of assaults that actually cause the officer some significant bodily harm. Common assault involves a very wide range of things that constitute an assault on the officer, but when they actually cause any significant bodily harm, if someone uses a weapon, that would be a more serious offence. It would be an even more serious offence if they wounded, maimed, disfigured, or endangered life. Those cases would constitute an aggravated assault, and that's the most serious level of assault.

[The Chair, Conservative, Ed Fast]

Members of the committee, I have a question for you before you move on.

Monsieur Petit has a question. As I understand it, both Monsieur Ménard and Monsieur Comartin also have short questions. We were trying to arrange for a steering committee meeting as well for tomorrow, but apparently one of our members is unavailable, so we're trying to accommodate him today after we adjourn this particular meeting and go in camera. If we keep those questions really short, and if everyone cooperates, we might actually be able to get all the steering committee work done in camera immediately after this meeting.

Is everyone in agreement with that? Could we have a very short question and short answers from our justice department officials? Thank you.

Monsieur Petit.

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

Good day, gentlemen. I am going to ask an extremely technical question to ensure that I properly understand the bill before us.

With regard to specific primary designated offences, as set out in the Criminal Code, DNA sampling is mandatory. In the briefing notes provided by the Library of Parliament we see the following:

[...] adds the following three new offences: intentionally discharging a firearm while being reckless about endangering the life or safety of another person, assaulting a peace officer with a weapon or causing bodily harm, and aggravated assault of a peace officer.

The following question could be informative for us and for those watching. Why are these three new offences allowing mandatory DNA sampling being added, when a judge can refuse such sampling? We are adding them, but we are leaving the door open. First of all, why are these offences being added?

[William Bartlett]

This would add the three new offences that are being created in this bill to the primary designated list. When an offence falls within that primary designated list, the judge is instructed to make the DNA order but is left with some residual discretion. We're not changing the DNA scheme, and frankly, the discretion that's available to the judge in the case of a primary designated offence is relatively small, but there is that small element of discretion.

We're not changing that scheme. We're adding these three new offences. We're adding to the primary designated list rather than the secondary designated list for which the judge has general discretion to make the order or not.

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

You have put these offences in the category of primary designated offences instead of in secondary designated offences, in order to avoid any confusion. Is that correct?

[William Bartlett]

Yes, we're doing so to ensure that these orders are made in all but the relatively rare cases where a judge might exercise the residual discretion not to make the order. But the proposal is that they should, in the ordinary course, be made whenever there's a conviction for one of these offences.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin, a short question.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I have a follow-up question to the scenario that Mr. Murphy gave you. I just want to be clear.

If you have the gang leader or boss, or some mid-level person, who makes the order and is charged with murder, is it going to be a charge of first degree murder using this section in this law?

[William Bartlett]

It's not quite that simple. If the person actually instructs them to go and carry out a murder, then they would be a party to the murder, pursuant to the party liability offences under the Criminal Code. In that case we're not using section 467.13 of the code, but the fact that they are guilty of the offence of murder as party to that murder.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But in the past they might have been charged with second degree murder in those circumstances. Because of this bill, this law—assuming it comes into effect—they would now be charged with first degree murder.

[William Bartlett]

If they participate in a murder that's done for the benefit of the criminal organization, and they're instructing somebody to commit the offence for the benefit of the criminal organization, yes. Just as the person committing the murder is guilty of first degree murder, so is the person instructing them, knowing that the purpose of it was for the benefit of a criminal organization.