Bill C-215 (Historical)

An Act to amend the Criminal Code (consecutive sentence for use of firearm in commission of offence)

Criminal Code

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I am pleased to have the opportunity to enter the debate on Bill C-215 put forward by my colleague from the Conservative Party, an act to amend the Criminal Code, consecutive sentence for use of firearm in commission of offence.

I notice the title has the exact same wording as the bill that was put forward by the former member of Saskatoon—Humboldt, Mr. Jim Pankiw, when he was a member of Parliament in the House of Commons. The issue does have merit and it is worthy of our contemplation in the House of Commons today.

Let me begin by saying how frequently issues of this nature come to my desk. As a member of Parliament I represent the inner city riding of Winnipeg Centre, an urban riding and the third poorest riding in Canada. As a result, many of the predictable consequences of chronic, long term poverty, such as crime and safety issues, are very much top of mind for the people I represent in my riding.

I did a survey in my riding about a year ago on the number one issues on which people in my riding wish me to represent them in the House of Commons. Crime and safety outstripped every other issue by a factor of three to one. The second issue is health care. I am pulling numbers out of my head, but I believe 68% of the people listed crime and safety as the number one top of mind issue that they talk about with their partners and their families around their kitchen table. Health care featured prominently but it was down around 25%. I remember that tax cuts, anecdotally, were around 6% of those people I polled. Again, this is not a scientific survey. This is simply asking the people in my riding what issues they go to bed worrying about at night.

However I can safely say without any fear of contradiction that the number one top of mind issue for the people I represent in my riding is their own personal safety, the crimes that are going on around them and the crime and punishment issues of our justice system.

Having said that, gunplay and gunfire is an omnipresent issue in my riding now. Some people in my riding will not sleep next to an exterior wall in their houses for fear a stray bullet will hit them or their children. They sleep in a den or a living room so they are not exposed to an exterior wall, because there is gunfire every night. Someone is not hurt every night but almost every night, I will say young kids because they often are and are often associated with street gangs, guns are being fired in the back lanes and in the parks in certain areas of my riding. Therefore it has become a top of mind issue.

I point out that last week a third young gunshot victim in one week was reported in the Winnipeg Free Press. A 19 year old was shot in the throat but did not die. The reason this is noteworthy is not just the fact that a youth was shot in the inner city of Winnipeg, but that it is the third time in one week.

Just a few days earlier a police officer shot and killed an 18 year old, an issue that is tearing apart the inner city along racial lines unfortunately. I will not comment on that here because it is too sensitive an issue to even raise in more detail than to simply flag it as an issue.

A few days after that, on Friday of last week, a 15 year old boy was fatally shot in a Sherbrooke Street apartment. It looks like the person who shot him was a 13 year old boy who has been charged with manslaughter. This was all in one week in my inner city riding of Winnipeg Centre. There is clearly an epidemic of weapons on the streets of Winnipeg and I do not think my inner city community in Winnipeg is any different than some of the other larger cities across the country.

The NDP government in Manitoba, under the youth crime prevention strategy, has made crime and safety issues its priority since 1999. I know it is not enough because I see the evidence on the street that it is not enough. I see kids dying because of firearms so we know not enough is being done at the federal or the provincial level. However those of us who are concerned with the issue can identify a number of social factors that are more complex and more indepth than simply the punishment associated with wrongdoing associated with firearms.

As instinctively tempting as it is to say that we must throw the book at these guys and lock them up, the empirical evidence shows that in those jurisdictions where there are tougher penalties for this type of offence there has been no corresponding reduction in the number of offences.

In the United States, where the whole social fabric is being threatened by the easy access to firearms, there are far more strict penalties associated with the abuse and misuse of firearms than there are in Canada but that in no way has deterred the number of firearm related offences or crimes, usually material crimes, where the use of a firearm is an aspect of the crime.

I am sympathetic with my colleague from the Conservative Party who has used his one opportunity to have a private member's bill debated, a bill that is compelling and pressing issue. I appreciate the fact that he is tough on crime. I can state quite publicly that I am no bleeding heart when it comes to crime and punishment issues either. In fact, I consider myself tough on crime as well but, as has been pointed out by other colleagues in the House of Commons today, as tough as we are on crime, we have to be equally tough on the root causes of crime. I know the neo-conservative movement has targeted that as a catchphrase. It thinks that anyone who talks about the root causes of crime is pandering to criminals. I beg to differ.

In the investigation of all three of those recent firearm related crimes in my riding in the last week, I guarantee members there will be compelling social forces at play, be it broken homes, be it poverty, be it children without supervision, be it children without opportunity, be it social pressures such as the music they listen to and the movies they watch that glorify the use and abuse of firearms and handguns that desensitize children to that level of violence to where they begin by being fascinated with guns at 13 and 14 years old and getting their hands on guns. They begin to play with those guns in terms of pointing them at each other. It is a short stretch from there to where someone pulls the trigger and, as is the case in my riding, we have gunplay every night and three times in one week a youth is being shot.

This issue does not divide itself neatly on racial lines but it certainly divides itself on socio-economic lines. The empirical evidence is that these incidents occur more frequently in low income neighbourhoods like mine in the inner city of Winnipeg. I try to keep it in perspective. I remind my constituents that this is frequently kids who are involved with street gangs shooting other kids who are involved with street gangs and that the average citizen is not in any particular danger. However that does not change the fact that people are so concerned about this that they are not sleeping in the bedrooms of their house that have exterior walls. Clearly, there is something fundamentally wrong with that.

Speaking specifically to the hon. member's bill, I too, as my colleague from the Liberal Party pointed out, believe that having supplementary sentences or a mandatory sentence tacked on to the sentence when the crime is committed with the use of a firearm is probably unconstitutional, illegal and not possible.

As much as I know my colleague is looking for ways to vent the frustration that we all feel by increasing the penalties, I do not think we can add a supplementary sentence onto the penalty that is being given for the actual crime committed.

[Richard Marceau, Bloc, Charlesbourg, QC]

Mr. Speaker, I am pleased to have this opportunity to speak on Bill C-215 to amend the Criminal Code in order to impose consecutive sentences for the use of a firearm in committing an offence. This bill was introduced by the member for Prince Edward—Hastings.

As you know, the bill was introduced by my colleague from the Conservative Party of Canada and was put on the priority list on November 15, 2004. The purpose of our colleague's bill is to require that a sentence for the commission of certain offences be supplemented if a firearm is used. The additional sentence is to be served consecutively and is to be a further minimum punishment of five years imprisonment if the firearm is not discharged, ten years if it is discharged, and fifteen years if it is discharged and as a result a person, other than an accomplice, is caused bodily harm.

I can understand our Conservative colleague's intent. He has told me that he was a military police officer for many years. It is understandable that he would want more severe punishments for certain types of criminals who too often victimize people in Quebec and in Canada.

We feel, however, that minimum sentencing must be used sparingly, because it ties the judge's hands. If memory serves, it is used at the present time for 29 Criminal Code offences. Some feel that minimum sentences have harmful effects on the work of judges, because they are the people best placed to determine the appropriate sentence.

I would, however, like to add a cautionary note. We do not share the aversion to the very idea of minimum sentencing some, too often on the government side, suffer from. The Bloc Québécois has introduced Bill C-303 setting minimum sentences for sex crimes involving minors.

We feel that children are the most fragile members of our society and those who are dearest to us, and when minors are preyed on by a sexual predator there must, in our opinion, be a minimum sentence in order to ensure that children are protected and that the perpetrator receives a mandatory prison sentence.

As the parliamentary secretary is well aware, the debate on the protection of vulnerable persons legislation will afford us an opportunity to bring in the essence of my bill, C-303, and integrate it with that bill.

Thus, we are not opposed in principle to the establishment of minimum sentences. Nevertheless, they must be used sparingly. We believe that, in the case of the clause in Bill C-215, the sentences the hon. member proposes are disproportionate, all the more so because they are added to the sentence already stipulated for the crime. In establishing minimal sentences, the use of a firearm has already been considered and increases the length of a prison sentence.

The sentences proposed in Bill C-215 are even more problematic when there are accomplices. As the House knows, the Criminal Code states that an accomplice may be given the same sentence as the perpetrator of the crime. Let us imagine, in the example already given by my hon. colleague, an 18-year-old, easily influenced, whose friends get him involved in a robbery. This young man, being reticent, agrees to stand lookout at the door of the store. His friends have not told him they intend to use a gun in their crime. During the crime, a shot is fired and a clerk is slightly injured. In such a situation, the young man would automatically be sentenced to 15 years in prison, in addition to the minimum sentence for robbery, which is four years.

A judge will be forced to sentence this young man to a minimum of 19 years of prison for what is certainly a reprehensible act, but one that is certainly not serious enough to deserve such a sentence.

Sentences that are too harsh can also have a negative effect. Rather than handing down a sentence that is too severe, judges might simply try to acquit the accused, in order to avoid imposing a sentence they think too harsh.

In short, this means the Bloc Québécois will vote against Bill C-215. We admire the desire of the hon. member for Prince Edward—Hastings to fight crime more effectively. We believe that the proposed sentences are disproportionate and that minimum sentences must be used specifically and selectively. We also believe they must be used in certain cases, including, as I mentioned, sex offences against children, a subject we will be examining again, either in committee or in this House, when Bill C-303 comes before us.

[Paul MacKlin, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, before I explain why we are unable to support Bill C-215, I want to mention that the motive for the bill is highly commendable. However, the Minister of Justice and I do not support Bill C-215, sponsored by the hon. member for Prince Edward—Hastings.

The purpose of Bill C-215 is ensure that strong measures are taken under the Criminal Code in the case of offences committed using a firearm. No one disagrees with the overall purpose of this bill.

However, the manner in which Bill C-215 proposes to realize that objective raises serious concerns. The most glaring concern is the proposal to add a sentence on top of a life sentence in the case of murder committed with a firearm. This is illegal under our law. The novel concept which Bill C-215 proposes to introduce to our law can perhaps best be described as supplementary sentences.

As drafted, the bill proposes to require that essentially two penalties apply for the commission of one offence if committed with a firearm, one penalty for the underlying offence itself and another minimum penalty of 5, 10 or 15 years of imprisonment, respectively, if a firearm is present, discharged or used to injure or kill a person other than an accomplice.

With respect to the offence of using a firearm in the commission of an indictable offence, the effect of the proposals in the bill would be to replace the current one year minimum penalty with 5, 10 or 15 year minimum terms of imprisonment, consecutive to the penalty for the underlying offence. If the weapon used is an imitation firearm, Bill C-215 proposes a five year minimum penalty, again, in addition to the penalty for the underlying offence.

These extraordinary, high penalties for using firearms in the commission of certain offences may appear to some to be appealing at first glance. However, it is important to look closely at Bill C-215 to examine the effect the bill will have if implemented.

It is, however, useful to consider plausible hypothetical cases or scenarios when trying to determine what effect such a proposal could have if enacted.

Bill C-215 proposes a mandatory minimum sentence of 10 years if a firearm is discharged during the commission of a crime.

A plausible hypothetical case would be that of an 18-year-old who uses a rifle to pop the tires of a series of cars parked in a lot. The motive—whether this person did so because of peer pressure or a complete lack of judgment—is irrelevant.

The sentencing judge could not take into consideration any of the special circumstances surrounding the commission of the offence or the delinquent's own situation, even if, for example, it were a first offence. The judge would have to impose the minimum 10-year sentence, proposed by Bill C-215, if property damage exceeded $5,000.

The actual penalty would be greater than 10 years since the bill proposes that the minimum 10 years for discharging the firearm would be in addition to the sentence imposed for the underlying offence in this hypothetical case of mischief.

As parliamentarians, as the country's lawmakers, when examining proposed legislation, it is important that we ask ourselves whether such law would be reasonable and would withstand charter scrutiny. Would it be reasonable to have an 18 year old person with or without a prior criminal record go to a federal penitentiary for over 10 years for shooting out car tires? This is what Bill C-215 would do. Few Canadians would find this to be just.

The bill would provide no flexibility to allow for appropriate sentences to be imposed, given the particular circumstances of the cases that could reasonably arise. We need to ensure that the penalty schemes in the legislation we pass leave room for any and all cases that may arise. Otherwise, the penalty provision itself will be found to be unfair and, consequently, struck down.

The other important factors need to be considered as well. The existence of minimum penalties in the Criminal Code does not provide a guarantee that they will be imposed on those who commit the offence to which the minimum penalties apply, particularly the higher ones. Depending on the circumstances, police are sometimes reluctant to charge a person with a particular offence if it carries an unusually high penalty. The example I gave earlier about the first time offender who shoots out car tires could be an example.

Also, judges and members of the jury can be reluctant to convict an individual if that conviction requires the imposition of a harsh minimum sentence despite the existence of special circumstances.

Mandatory minimum sentences promote an all or nothing approach, which does not serve our criminal justice system. It is much more advantageous, from the standpoint of public security, to ensure a conviction and the imposition of an appropriate sentence, instead of running the risk that an accused will not stand trial or be convicted of the offence he or she committed.

Mandatory minimum penalties also encourage greater plea bargaining. Accepting a guilty plea on a less serious offence, one that does not carry a minimum penalty, is a frequent occurrence in the criminal justice system to avoid the all or nothing outcome described. Whether appropriate in the circumstances or not, I doubt that provoking greater plea bargaining is the goal of Bill C-215.

We should also be mindful that mandatory minimum penalties remove the incentive for offenders to plead guilty. This increases the number of matters that end up going to trial, which in turn increase the case backlogs and cause further delays. Introducing additional and increased minimum penalties would also have cost implications, not only for the court system but also for correctional services. Last, mandatory minimum penalties hamper a judge's ability to make the punishment fit the crime, whether on the high end or on the low end.

Before I conclude my remarks, I would like to suggest that we also ask ourselves why we would want to seriously consider the proposals in Bill C-215. The firearms legislation passed by Parliament in 1995 introduced significantly high minimum penalties for 10 serious offences committed with a firearm. Those minimum four year terms of imprisonment are being applied and upheld throughout Canada. For other indictable offences committed with a firearm, there is ample room for judges to impose as stiff a sentence as is warranted in the circumstances.

Therefore, I would urge all members to resist the temptation to support what may appear an attractive tough response to gun crimes and to consider the serious implications of passing a set of amendments that could lead to inflexibility in our laws or negative, unintended consequences. The existing penalty scheme for gun crimes provides an appropriate range of penalties to ensure that judges have the discretion to impose a sentence that fits the crime.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

moved that Bill C-215, an act to amend the Criminal Code (consecutive sentence for use of firearm in commission of offence), be read the second time and referred to a committee.

Mr. Speaker, I am pleased and proud to rise in support of Bill C-215, an act to amend the Criminal Code, the consecutive sentence for use of a firearm in commission of indictable offences.

The purpose of this enactment is to require that a sentence for the commission of certain serious offences be supplemented if a firearm is used. The additional sentence is to be served consecutively to the other sentence and is to be a further minimum punishment of five years imprisonment if the firearm is not discharged, 10 years if it is discharged and 15 years if it is discharged and as a result a person, other than an accomplice, is caused bodily harm.

The offences affected are those specified in the following sections: using a firearm in the commission of the offence or using an imitation firearm in the commission of the offence; and the offences being murder, manslaughter, attempted murder, assault causing bodily harm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, extortion and robbery.

The bill I am bringing forward today is not about incarceration but it is about sending a very clear message. It is a message about protecting society by providing an effective deterrent against serious indictable offences involving guns.

The precedent of mandatory minimum sentences has worked extremely well as an effective deterrent in cases of impaired driving. Many of us in the House will remember a number of years ago when one was stopped for an impaired driving charge and the person would perhaps receive a penalty of a three month suspension and maybe a $200 fine. Unfortunately, that did little to stem the abuse of impaired driving.

Consequently, a minimum mandatory was established of a one year suspension and a $1,000 fine. All of a sudden we started to achieve results. The message was a clear deterrent and that message was do not drink and drive.

We have a precedent, therefore, and it is in these types of sentences that it can work. I truly believe a clear message of deterrence must be applied to criminals who use firearms while committing an indictable offence, and that message being that if a person uses a gun in the commission of an offence he or she will pay a severe price.

Let me be absolutely clear. This proposed amendment is about sending a message. It is about sending a message to our criminal society. It is the message that the safety and security of society must be addressed. We need to send this message not only to those who commit the crimes that they will be punished but we also have to send this message to those who have experienced these crimes as a victim, that we take their protection seriously and that we will take all measures necessary to ensure that their rights and their safety are respected.

Over this past while I have met with many organizations, municipal and interest groups. As a matter of fact, just lately I met personally with the Canadian Professional Police Association that represents over 54,000 members in this country. I have also met with the Canadian Association of Chiefs of Police. Both of those associations fully endorse the proposed bill.

I have with me today a written endorsement from these defenders of justice. I will take the liberty of informing my colleagues of their sentiments.

The first one is a written endorsement from the Canadian Association of Chiefs of Police. It reads:

Letter of Endorsement

The Canadian Association of Chiefs of Police is pleased to support Bill C-215, an act to amend the Criminal Code (consecutive sentence for use of firearm in commission of offence), standing in the name of...MP Prince Edward-Hastings.

The Association feels this is an appropriate, serious response to occurrences of violent crime. We support the underlying principles of this legislation.

The letter is signed by Edgar MacLeod, President of the Canadian Association of Chiefs of Police.

As well, I have an endorsement from the Canadian Professional Police Association. It reads:

CPPA Support to Bill C-215

The Canadian Professional Police Association endorses the principle of creating tougher penalties for the commission of serious offences when they are supplemented with the use of a firearm.

We believe that private members' Bill C-215 provides an effective deterrent against violent gun crimes and applaud the member for Prince Edward—Hastings for introducing it.

The Canadian Professional Police Association, which represents 54,000 police personnel members in every province from across the country believes, however, that, “provisions contained in Bill C-215 should apply to serious offences when they are supplemented with the use of a firearm as well as any other type of weapon”.

As we can see, there are groups and organizations that want the bill to extend into a further reach. I believe the bill is worthy of debate and going to a committee for examination to see if some of these other recommendations from the third party sources could possibly have an effect.

Judicially there are also concerns of the glaring inconsistencies of sentencing and literally the virtual ritual of plea bargaining resulting in the absence of a consistent message of deterrence being sent to the criminal element. If sentences for gun crimes continue to be arbitrarily decided without consistency, then criminals will continue to behave without fear of consequence.

As a former police officer a number of years ago, I have felt firsthand what many victims have been shockingly exposed to, and that is looking down the barrel of a gun from the wrong end. While many of us know what it is like to fire a gun, how many in the House know what it is like to have a gun pointed at them, to stare down the barrel of a gun and have one's life pass by literally in a millisecond?

I can assure members that the half-inch bore of a gun looks like a cannon before the victim's eyes. I would also like to separate the fiction of the entertainment world's perception of firearms from the reality of the real pain and the real suffering.

In the nostalgic days of Wyatt Earp and the OK Corral, the portrayal of gunslingers where they would supposedly shoot at 80 paces and hit the gun out of an adversary's hand was absolutely and totally ridiculous and fictitious of course. Anyone who has any familiarity with handguns, unless they are in the hands of an expert marksman in a controlled setting, would know that the reality is that handguns are absolutely not accurate in the hands of someone who is in an uncontrolled situation with spray patterns literally emerging from side to side.

For instance, if I had a handgun in my hand right now and at point of origin I would just simply wave it, in a non-threatening way of course toward any of my colleagues in the House, literally six-inches at origin, every one of my colleagues from one side of the House to the other would be in danger of being hit by, obviously a weapon. Handguns are totally unreliable and many innocent victims, under circumstances like this, are either killed, disabled or injured as a criminal in an uncontrolled situation is generally in a state of anxiety and has little care, regard or concern for others.

Many people quote statistics and refer to them as numbers, and of course, cold hard numbers they are. In reality, when firearms are involved in these statistics, literally every one is a human tragedy. I would like to draw the attention of my hon. colleagues to the following statistics which clearly demonstrate the scope of human pain and suffering that is not always just physical but on many occasions, scars a person psychologically for the rest of their life. On July 28, 2004 Statistics Canada released its annual report on robberies which stated:

The rate of robberies rose 5%, the first gain since 1996. This included a 10% increase in robberies committed with a firearm. Of the more than 28,000 robberies in 2003, 14% involved a firearm, 38% were committed with a weapon other than a firearm, and nearly half were committed without a weapon.

Over 2,300 robberies that took place in 2003 were committed with a firearm. Of the 161 firearm homicides in 2003, 109 were committed with handguns. Other violent crimes are increasing as well. Attempted murder and aggravated assault were both up 4% and assault with a weapon was up 1% in 2003.

Many people will say that is only 1%, 2%, 3% or 4%, but let me put that into perspective. Over the past 25 years, violent crime has gone up 66%. That is simply not acceptable. The status quo is not working. As these statistics clearly show, violent crime is all too prevalent in Canada.

There are serious problems, particularly in our urban cores with gangs, violence in clubs, and convenience store and gas bar robberies. I would like to draw the attention of all of my hon. colleagues in the House, but particularly those from the metro-Toronto area and those from our urban cores, to yesterday's headline in the Toronto Star which read, “Toronto's Deadly Weekend”. I would like to take the liberty to read from that paper which stated:

Deadliest weekend: 3 dead, 5 injured...a woman fatally shot Friday evening...Two other victims were rushed to Sunnybrook hospital, where they are being treated for gunshot wounds. A woman was shot dead and her husband injured by gunfire...Investigators say a man was shot in the back after a fight broke out on the dance floor, and a woman hit in the thigh.

All of that happened on the same day in one of our major cities. The paper went on to report:

--a student standing in a covered bus shelter...was hit in the arm by gunfire about 1 p.m. Friday.

Those stories all came out of one newspaper.

Walking back to my apartment last night I happened to pick up Sunday's Ottawa Citizen and what did I find in there as well but a story about another person being shot on Friday night in the city of Ottawa. I can probably assume from these kind of activities that if I pick up a newspaper from a major metropolitan area, I will see similar kinds of activities and reporting.

We cannot simply stand by and watch our communities deteriorate further. While respecting the rights of criminals, we must stop this escalation of violent crime. We must turn the corner of this page. We fully understand and respect the fact that criminals have rights, but society has rights as well. We have the right to live without fear of injury or death. I believe that in failing to act to prevent crimes like those that happened last weekend in Toronto, we are failing in our duty as members of Parliament.

Parliament is a body of lawmakers. My hon. colleagues sitting in the House with me today have responsibilities. We have the responsibility to protect the vulnerable in our society. We have the responsibility to provide the tools for our law enforcement agencies. We must follow-through with that responsibility. We must send a clear message of deterrence, protection and prevention.

I believe that we have a duty in this place to support Bill C-215. It is a positive initiative to deal with gun crimes against society. I look forward to comments from my colleagues in the House.

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

moved for leave to introduce Bill C-215, an act to amend the Criminal Code (consecutive sentence for use of firearm in commission of offence).

Mr. Speaker, I am pleased to introduce a bill entitled an act to amend the Criminal Code (consecutive sentence for use of firearm in commission of offence).

The bill would require that a sentence for the commission of certain serious offences be supplemented if a firearm is used. The additional sentence would be served consecutively to the other sentence and there would be a further minimum punishment of five years imprisonment if the firearm is not discharged, 10 years if it is discharged and 15 years if it is discharged and as result a person, other than an accomplice, is caused bodily harm.

As a former OPP officer, I fully agree with the bill. I hope it will earn the support of all of my esteemed colleagues in the House.

(Motions deemed adopted, bill read the first time and printed)