An Act to amend the Criminal Code (conditional sentence of imprisonment)

This bill was last introduced in the 38th Parliament, 1st Session, which ended in November 2005.

Sponsor

Irwin Cotler  Liberal

Status

Not active, as of Oct. 27, 2005
(This bill did not become law.)

Summary

This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to create a presumption that courts shall not make conditional sentence orders when sentencing offenders convicted of serious personal injury offences, terrorism offences, criminal organization offences or any other offences whose nature and circumstances are such that they require the paramount sentencing objective of the court to be the expression of society’s denunciation. It also allows a court to suspend a conditional sentence order pending appeal, and, before doing so, to order the accused to enter into an undertaking or recognizance. In addition, this enactment clarifies that the minimum punishment provided for offences under sections 253 and 254 of the Criminal Code applies to impaired driving offences causing bodily harm or death and provides that a court may order that the time served under an order prohibiting the operation of a means of transport be served consecutively to the time served under any other similar order that is in force.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, provided by the Library of Parliament. You can also read the full text of the bill.

Criminal CodeGovernment Orders

May 3rd, 2010 / 6 p.m.
See context

Conservative

Rick Casson Conservative Lethbridge, AB

Mr. Speaker, conditional sentences became a sentencing option over 13 years ago with the proclamation in September 1996 of Bill C-41, sentencing reform, chapter 22 of the Statutes of Canada, 1995. The original intention of conditional sentences was to promote the protection of the public by seeking to separate the most serious offenders from the community while less serious offenders could remain among other members of society with the effective community-based alternatives while adhering to appropriate conditions.

Conditional sentences were to provide an intermediate sentencing option between probation and incarceration to permit less serious offenders to remain in the community under strict conditions if their sentence was less than two years, the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community, and their offence was not punishable by a mandatory minimum term of imprisonment.

An amendment was made in 1997 to add a requirement that the court be satisfied that sentencing the offender to a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code.

In 2000, the Supreme Court of Canada held in R. v. Proulx that a sentencing court must first find that a sentence of imprisonment of less than two years is appropriate before considering whether the sentence can be served in the community under conditional sentence order. In other words, a court must be of the opinion that a probation order and/or fine would not adequately address the seriousness of the offence and the degree of responsibility of the offender.

Second, a penitentiary sentence, a term of imprisonment of more than two years, would not be necessary to do so and a sentence of less than two years would be appropriate. Once this decision is made a court would then determine whether the sentence of imprisonment of less than two years may be served in the community, bearing in mind the other prerequisites I referred to earlier, community safety for one.

Over the years conditional sentencing decisions that appeared on their face to be questionable have contributed to a loss of public confidence in this sanction and therefore in the administration of justice.

A number of observers, including some provincial and territorial counterparts, became increasingly concerned with the wide array of offences that received conditional sentences. By the time our government took office in 2006, it had become clear to us that further limits to the availability of conditional sentences were needed. Our government responded to these concerns when it tabled Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), on May 4, 2006. Bill C-9 was referred to the justice committee just one month later on June 6, 2006.

Bill C-9, in its original form, proposed to eliminate conditional sentences for offences prosecuted by indictment and punishable by a maximum sentence of 10 years or more. It was and still is the opinion of this government that offences prosecuted by indictment and punishable by a maximum sentence of imprisonment of 10 years, 14 years, or life are serious offences that should not result in a conditional sentence order. This is so even if the court ultimately finds that a sentence of less than two years is proportionate to the circumstances of the offence and the degree of responsibility of the offender.

Bill C-9 as originally drafted would have caught serious crimes such as weapons offences, offences committed against children and serious property crimes. However, opposition members thought that the scope of Bill C-9 went too far in limiting conditional sentences and amended it to only capture terrorism offences, organized crime offences and serious personal injury offences as defined in section 752 of the Criminal Code that are punishable by a maximum sentence of 10 years or more and prosecuted by indictment.

This was similar to the approach taken in Bill C-70 which the previous government had tabled in the fall of 2005, but which died on the order paper with the call of the general election later that year. The amendments to the bill created some strange results. First, the opposition amendments to Bill C-9 created a situation where offences punishable by a maximum of 14 years' imprisonment or life are not all considered to be serious crimes. I would like to remind members that these are the highest maximum available in the code.

Second, as a result of amendments to Bill C-9, offences contained in the Controlled Drugs and Substances Act are not excluded from eligibility for a conditional sentence unless they were committed as part of a criminal organization. Consequently, the production, importation and trafficking in a schedule I drug such as heroin would not be caught and would be eligible for a conditional sentence of imprisonment. However, as members of the House know, our government has proposed mandatory minimum penalties for serious drug offences. I would expect that when the legislation is enacted, as I hope will soon be the case, these offences would be ineligible for a conditional sentence.

Until the coming into force of Bill C-9 on December 1, 2007, sentencing courts had only to interpret serious personal injury offences for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met, because that term only applied to the dangerous and long-term offender provisions. Since Bill C-9 came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences.

The Alberta Court of Appeal in Ponticorvo, 2009, reviewed its decisions in Neves, 1999, where is considered the definition of serious personal injury offence in the context of dangerous offender provisions. In that context, the court concluded that section 752 required that the offence considered be objectively serious. However, in the context of conditional sentencing, that court of appeal found that the use or attempted use of violence sufficed and did not require any overlay of objective seriousness. In other words, it ruled that it should be easier for the Crown to establish that an offence is a serious personal injury offence in the context of a conditional sentence than it is in the context of a dangerous offender.

While that is an appropriate interpretation, there have been some cases that do not follow the decision of the Alberta Court of Appeal and continue to apply the guidelines developed in the context of dangerous offenders in determining whether an offence is a serious personal injury offence.

Another concern with the definition of serious personal injury offence is that serious property crime, such as fraud, could still be eligible for a conditional sentence. We are well aware of recent examples of the devastating impact of fraudulent conduct. Victims who have lost their life savings have called for strengthened sentences for those types of crimes. It is hard to disagree with their concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, would still be eligible for a conditional sentence, despite reforms enacted by Bill C-9. It is clear to me, and I suggest to many Canadians, that greater clarity and consistency is needed to eliminate the availability of conditional sentences for serious violent and serious property offences.

For these reasons, Bill C-16 proposes to remove the reference to serious personal injury offences in 742.1, to make all offences punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for conditional sentences.

Bill C-16 would also clearly make offences prosecuted by indictment and punishable by 10 years that result in bodily harm, involve the import, export, trafficking or production of drugs or involve the use of weapons ineligible for conditional sentence.

I hope all members in the House will support the bill. It is important that this new bill comes forward to control the use of conditional sentencing.

Criminal CodeGovernment Orders

May 3rd, 2010 / 4:15 p.m.
See context

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, it is my pleasure to rise and speak to Bill C-16, which, but for prorogation, might be Bill C-42 and, but for incessant elections, might be Bill C-70. In any event, this is a proposed law that speaks to a tool the judiciary has in its toolbox called conditional sentencing.

I am struck by the previous speaker and the tone in the House generally when it comes to characterizing bills by names that presumably everyone can understand what they mean. The Conservative government attempts to cut, with a very large swath, colour with a large brush, a whole area of law with a very simply phrase.

For people tuning in to the debate about Bill C-16, they would, because of the way the government labels bills, think this is a debate about ending house arrest for property and other serious crimes by serious and violent offenders. That would be the title of the book or the movie that people would be watching if they were tuning in to this debate.

When we actually peel away the layers of the onion, we realize that we are talking about an enactment of Parliament that was substantially amended in 1995, with some minor amendments in the last Parliament, which is imposing conditional sentence. It does not say imposing house arrest with a big screen TV and extreme television. That is not to be found in the code.

The Criminal Code is a large volume that regulates the laws punishing criminals for proven facts that lead to a sentence or conviction. The Criminal Code does that. It is divided up into many sections, sections involving offences against the state, invasions of privacy, offences against the person, offences against property. Administrative aspects are in there as well. There are some 800 sections in the code and one of those sections deals with imposing a conditional sentence.

Let us be clear. If someone who commits a crime is sentenced to two years less a day, that individual is eligible, in some cases, for conditional sentence. Anybody who is found guilty of an offence that gets a sentence of more than two years is not, will not be, has never been, eligible for conditional sentencing.

Maybe some the people listening today are parents. They realize that if they take away their teenage daughter's cellphone, that is pretty serious punishment. If they banish her to her room for a week, that is really serious punishment. However, if they tell her she has to eat her vegetables, that is not that serious in the realm of possibilities of sentencing.

Conditional sentencing is available to judges. It provides them with the opportunity to say that there is some possible merit in the person. The individual has done a bad thing, but maybe he or she could be rehabilitated, maybe we could get to the root cause of why he or she is acting this way.

This opens up the larger debate of what are we doing as a Parliament about crime prevention.

We have been doing very little lately because we are spending our time watching our own big screen TVs and the Minister of Justice saying that this bill would end house arrest for property and other serious offences, when in fact it is trying to curb a tool being used by judges and prosecutors every day.

Let us be clear again. A defence attorney defends a person accused of something. That is not within the realm of this debate here. We are making law that would be used by police officers and prosecutors. Police charge a person with an offence. Prosecutors will look at a whole range of proof possibilities. They will also look at the range of possible sentencing. The prosecutors, the police and eventually the judge will look at the sentence in a holistic fashion and say that there are a number of options available, such as the individual is just a bad person and he or she should be locked away. Unfortunately the Conservative government thinks everybody falls into that category, and there are a number who do.

However, there are also people who, because of addictions to substances or horrendous nurturing child development socio-economic background problems, are driven to crime. A number of people, because of mental illness, which still has not been addressed in our communities, may turn to a life of crime and perhaps, in the first few incidences, are committing crimes that a judge, a prosecutor or a police force official would say that the person could benefit from a conditional sentence. Conditional sentences are often recommended by prosecutors.

This painting of the picture by the Conservatives that all policemen and all prosecutors want the most harsh sentence and want to put the person away is not always the case.

This is why we have debate in the House and why we have committees where we will hear from the people actually doing the work, the prosecutors, the policemen and, hopefully, the judges. They will tell us that this is a tool that exists among all the other tools which include incarceration. If someone commits an offence they can be charged with an offence and incarcerated. If it is a really serious offence, the offender will get a really long jail sentence.

My friend from Edmonton—St. Albert does not want to talk about cases but let us cut it up as to the type of offences that might occur and the sentences that would be incurred.

If someone commits a really serious sexual assault involving bodily harm and it is his fourth offence, he will not get six months or a year. He will get a serious sentence, not a conditional sentence. It is an academic argument. It is a wrong argument to say that we are giving house arrest to the big screen TV watching criminals for the very serious offences on multiple occasions. The evidence will be before us in committee. Contrary to what my friend from Edmonton--St. Albert said, the committee and this Parliament have not heard any evidence about conditional sentencing. We will hear that if the bill goes to committee.

I would remind members of the House that we get the big wheel of the justice committee going and then all of a sudden there is a prorogation and we start all over again. Heavy is the head that wears the crown over there, in that the government keeps stopping Parliament and bringing in legislation and we have to hear evidence all over again.

However, we are looking forward to hearing from the participants in the justice system as to whether the tool is being used and whether it works.

As I was saying, the other tools that a judge, prosecutor and police officials have at their disposal is to work together toward incarcerating criminals. Let us review that one. In many circumstances the best deterrent for future criminal activity is having someone not out and available to do that crime. There is no question about that. The best prospect for public security and public safety with respect to certain individuals is keeping them incarcerated. A little side note is that when they are in our corrections facilities they often commit crimes as well because it is not as controlled as Canadians would like to think. Criminal activities do take place inside our corrections facilities. Therefore, when we remove someone it is not as if we are getting rid of their criminal activity. That is number one.

Number two is that without any rehabilitative programs and without any care for making the person better, the period of incarceration has, in many cases, especially for a first or second offender who might merit a conditional sentence, the opposite effect. The offender does not learn necessarily good things in prison and he or she comes out a worse offender or a worse potential offender.

There is another fallacy in the Conservatives' hide and seek justice philosophy. They think they can convince the Canadian public that by putting people away and removing them from society they will never come back into society, and, in some cases that is true. I do not have the facts in front of me about that but our list of dangerous or long term offenders who will be incarcerated forever, multiple murderers, is in the percentage of 1%, 2% or 3% of our incarcerees now. I think it is that low.

I will be conservative for a moment and say that the vast majority, 80% perhaps, of offenders will get out of prison. When they get out even the Conservative would need to come up with a reason to put them back in. Therefore, they do need to reoffend and thus the victimization reoccurs.

What is in everyone's interest is to know that incarceration happens, which is the first element in the toolkit. Second, if there is a sentence that merits a period of leave or freedom, it can be accomplished with a guilty plea, a sentence and a probation order. In some cases, a probation order would be very acceptable. However, as we heard time and again, probation orders are not as fluid. They are not a useful tool to judges because they do not allow as many conditions attended to the probation order as a conditional sentence. I do not hear the government saying that we should end all probation orders. It must think the probation order works even though it has fewer conditions than a conditional sentence regime.

The conditional sentence is the third element in the toolbox that I would like to discuss. It is found in section 742.1 of the Criminal Code of Canada which, as I have said before, is the best thing a Conservative justice minister ever did by creating the Criminal Code or putting it together. That is some 100 years ago and we are looking for some improvement and some new things from a Conservative justice minister, but near the end of the code it has a tool for judges to say that if a person is convicted of a offence and it is less than two years and, this is a key thing, the judge is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718, the conditional sentence may work and may be used by a judge.

Section 718, which I have referred to a number of times, is probably the most important part of the Criminal Code because it sets out our principles of sentencing and they do not weight one more than the other. It says that if a person has done a crime we should seek to denounce that crime. There also should be an element of deterrence so that it does not happen again. Deterrence is general to the general public. If a person does something, the conviction of that and the sentence attended to it should deter people generally from doing that and it certainly should deter the person specifically.

There are also elements of rehabilitation. Is the person who committed the crime and has been convicted eligible to be rehabilitated? The goal of most of the criminal justice legislation that comes from this place must be to make society safer. Making society safer would occur if there were less crime. There would be less crime if there were a serious crime prevention agenda, a serious attended budget for crime prevention and less bickering between the federal government and the provinces with respect to how to spend resources on crime prevention.

For a moment I will digress and say that there is a bickering by distance. The provinces may get social transfers but they always say that they do not have enough resources to fund probation officers and police officers who intervene in the community. The provinces are doing very little with federal money to get involved in crime prevention. We must remember that everything with the government is storefront. It is not what is behind the storefront, but in the storefront the Conservatives put the Ombudsman of Victims of Crime, Mr. Steve Sullivan. He did an admirable job. He spoke up for victims. However, like Kevin Page, AECL and everyone who gives the government a few problems, speaks up and speaks the truth to power, the Conservatives are not renewing the contract to Mr. Sullivan. How serious are they about victims rights really and how serious are they about a crime prevention agenda?

The provinces would like to do more in this regard.

I do not know if our intergovernmental affairs critic is here but in the old days there were a number of first ministers meetings, attorneys general, justice ministers and even the prime minister might be involved occasionally in the past, but there has been very little dialogue with respect to crime prevention and to changes to the Criminal Code from the current government members.

The Conservatives are not as much interested in finding the root causes of crime and treating them, or in finding out what programs are effective and funding them, or in talking to the provinces on how to better implement their programs on a national scale, province by province and territory by territory, as they are in the 5 p.m., 6 p.m. in the Atlantic provinces and 6:30 p.m. in Newfoundland, national news stories that say, “We have done this today. Look at us. We are going to make the language simple.”

I find nothing wrong with simple language but in this case it is misleading to say that this is about house arrest. This is about the section of the code that gives the judge options. If a judge chooses to employ the conditional sentence for a crime that is less than two years, he or she may, in most cases has to, implement certain conditions, and they are here, that every person convicted of a crime that befits a conditional sentence shall keep the peace and be of good behaviour, shall appear before the court when required to do so, shall report to a supervisor within two working days after making the order, thereafter, when required and at the behest of the supervisor, shall remain within the jurisdiction of the court unless has permission to do otherwise, shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court.

If any of those conditions are broken, and if provinces are adequately funded for officers to enforce these orders, which is a big problem for the provinces, the government throws out legislation, puts it on the books and subsequently has a turf war with the provinces and territories as to how the laws will be implemented and who pays for it. There is a systemic downloading of services to provinces in this regard. However, those are the standard conditions and if they are broken the person goes back.

I think we will hear from witnesses, if this goes to committee, why it is a valuable tool that need not be restricted any more than it is and needs to be a tool of the judicial discretion that exists. We must remember that from the moment the government took office it has attacked judges because it did not like anyone who was not in their caucus, which is getting smaller month by month. In other words, the government would like to have judges like those in the United States who run on political campaigns, on a set of political promises and toe a political party line.

The government has had very little respect for judges since it came to power and now it wants to take away further discretion. It is okay to have that belief, but when it stands and says that it believes in judicial discretion, its actions with respect to legislation does not show that.

Let us talk about a good judge, a good prosecution and good police officer bringing an individual to court who may be saved. These additional conditions are available to a judge for people who have been found guilty of an offence for which a conditional sentence order might apply. They could be ordered to abstain from the consumption of alcohol or other intoxicating substances. There is no such order in our corrections facilities. It is a given that they cannot in corrections facilities but the reality is that it happens.

As I said earlier, and I think we would all agree, many people who commit crimes and are in our prisons have substance abuse issues. It is the root cause of much crime in this country. We should be doing something to allow judges to force people convicted of offences to refrain from consuming alcohol or intoxicating substances.

Another condition could be abstaining from owning, possessing or carrying a weapon. Other conditions are to provide for the support and care of dependents, if the person has them; perform up to 240 hours of community services over a period not exceeding 18 months; attend a treatment program approved by a province; and comply with, and this is the catch-all, such other reasonable conditions as the court considers desirable.

Let us not throw the baby out with the bathwater. Let us keep conditional sentences subject to what the evidence tells us about their efficacy. Let us not completely denigrate the system, which is the whole pith and substance of what the hon. member for Edmonton—St. Albert, in leading the government in this discussion, said. He said that because conditional sentences are used, so people can watch their big screen TVs, the whole system of justice is brought into disrepute.

What brings the system of justice into disrepute is the agent of the government, the representative of the government who stands here and says that something that is being used every day by good judges, good prosecutors and good policemen is not working. That is what brings it into disrepute.

December 2nd, 2009 / 3:45 p.m.
See context

Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice

Thank you very much, Mr. Chairman. I'm pleased to be with you once again, this time on Bill C-42, An Act to amend the Criminal Code (Ending Conditional Sentences for Property and Other Serious Crimes Act). This bill will contribute to people's confidence in the criminal justice system by proposing additional restrictions to the use of conditional sentences of imprisonment.

I know this committee is quite familiar with the issue, given the amendments that took place in 2007. To understand why we're pursuing other reforms, I'd like to say this. Conditional sentences became a sentencing option over 13 years ago with the proclamation in September 1996 of the sentencing reform bill. Conditional sentences were to provide an intermediate sentencing option between probation and incarceration to permit less serious offenders to remain in the community under strict conditions: their sentence was less than two years; the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community; and the offence was not punishable by a mandatory term of imprisonment.

In 2000, the Supreme Court of Canada held in Regina v. Proulx that a sentencing court must first find that a sentence of imprisonment of less than two years is appropriate, before considering whether the sentence can be served in the community under a conditional sentence order. In other words, a court must be of the opinion that a probation order and/or a fine would not adequately address the seriousness of the offence; a penitentiary term would not be necessary to do so; and a sentence of less than two years would be appropriate. Once this decision is made, a court would then determine whether the sentence of imprisonment of less than two years may be served in the community, bearing in mind the other prerequisites in section 742.

A number of observers, including some of my provincial and territorial colleagues, became increasingly concerned with the wide array of offences that received conditional sentences of imprisonment. By the time our government assumed power in 2006, it had become clear to us that further limits to the availability of conditional sentences were needed. We responded to those concerns when we tabled Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment) on May 4, 2006. It was referred to this committee a month later, in June. Bill C-9, in its original form, proposed to eliminate conditional sentences for offences prosecuted by indictment and punishable by a sentence of 10 years or more.

It was, and still is, the opinion of this government that offences prosecuted by indictment and punishable by a maximum term of imprisonment of 10, 14 years, or life are serious offences that should not result in a conditional sentence order. This is so, even if the court ultimately finds that a sentence of less than two years is proportionate to the circumstances of the offence. Bill C-9, as originally drafted, would have caught serious crime, such as weapon offences, offences committed against children, and serious property crimes. However, Bill C-9 was amended so it would only capture terrorism offences, organized crime offences, and serious personal injury offences as defined in section 752 of the Criminal Code--those that are punishable by a maximum of 10 years or more and prosecuted by indictment. This was similar to the approach taken in Bill C-70 that the previous government had tabled in the fall of 2005, but died on the order paper.

The amendments to Bill C-9 created some strange results. First, the amendment to Bill C-9 created a situation whereby offences punishable by a maximum of 14 years' imprisonment or life are not all considered to be serious crimes. I shouldn't have to remind the members of this committee that these are the highest maximum available in the code.

Second, as a result of the amendments to Bill C-9, offences contained in the Controlled Drugs and Substances Act are not excluded for eligibility for a conditional sentence unless they are committed as part of a criminal organization. Consequently, the production, importation, and trafficking of a schedule 1 drug, such as heroin, would not be caught and would still be eligible for a conditional sentence of imprisonment. As members of the committee know, our government has proposed mandatory penalties for serious drug offences in Bill C-15. I therefore expect that when that legislation is enacted, as I hope it soon will be, these offences will be ineligible for a conditional sentence.

Third, the use of the term “serious personal injury”, as defined for dangerous and long-term offenders, was appropriated to serve as a limit to the availability of conditional sentences as a result of the amendments to Bill C-9. Up until that bill's coming into force on December 1, 2007, sentencing courts had only to interpret serious personal injury offence for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met, because that term only applied to dangerous and long-term offenders. Since Bill C-9 came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences.

A concern with the definition of serious personal injury offences is that serious property crimes such as fraud could still be eligible for a conditional sentence. We're all aware of the recent examples of the devastating impact of fraudulent conduct. Victims who have lost their life savings have called for strengthened sentences for these types of crime. It is difficult to disagree with their concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, would still be eligible for a conditional sentence, despite the reforms enacted in Bill C-9.

It's clear to me, and I suggest to many Canadians, that greater clarity and consistency are needed to eliminate the availability of conditional sentences for serious violent and serious property crimes. For these reasons, Bill C-42 proposes to remove the reference to serious personal injury offences in section 742.1 and make all offences that are punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for a conditional sentence.

Bill C-42 would also clearly make offences that are prosecuted by indictment and punishable by 10 years and result in bodily harm, involve the import-export, trafficking, or production of drugs, or involve the use of a weapon ineligible for a conditional sentence. While these elements of the legislation will significantly limit the ambit of the conditional sentencing regime, the addition of these categories would not exclude all serious offences prosecuted by indictment and punishable by a maximum of 10 years. Therefore, Bill C-42 lists specific offences prosecuted by indictment and punishable by a maximum sentence of 10 years that would be ineligible for a conditional sentence. These include prison breach, luring a child, criminal harassment, sexual assault, kidnapping, trafficking in persons, abduction, theft over $5,000, breaking and entering a place other than a dwelling house, being unlawfully in a dwelling house, and arson for fraudulent purposes. In addition, once Bill C-26 comes into force, conditional sentences will no longer be available for the proposed offence of auto theft. The bill is presently before the Senate.

Mr. Chairman, conditional sentences are an appropriate sentencing tool in many cases, but their use does need to be restricted when it comes to serious property and serious violent offences. A more prudent use of conditional sentence orders should strengthen confidence in the sanction and the administration of justice.

I'd like to conclude by saying, Mr. Chairman, that passage of Bill C-42 is an important step towards more just sentences that will protect our communities, our families, and respect our sense of justice. The use of conditional sentences for less serious offences and less serious offenders, as was intended when they were first created, will improve public confidence in criminal justice.

I hope this will receive quick consideration by this committee and we'll get this matter back into the House soon.

Thank you very much, Mr. Chairman.

Ending Conditional Sentences for Property and other Serious Crimes ActGovernment Orders

October 21st, 2009 / 4:45 p.m.
See context

Saint Boniface Manitoba

Conservative

Shelly Glover ConservativeParliamentary Secretary for Official Languages

Mr. Speaker, I am here today to debate Bill C-42, ending conditional sentences for property and other serious crimes act. As the name of the bill indicates, further reforms are needed to ensure that conditional sentences are not imposed for serious crimes.

Conditional sentences of imprisonment came into force over 13 years ago, with the proclamation in 1996 of Bill C-41, Sentencing Reform, Chapter 22 of the Statutes of Canada, 1995.

Bill C-41 created a new sentencing part of the Criminal Code. Among its key elements were the creation of conditional sentences as a new sentencing option, the first ever parliamentary statement of the purpose and principles of sentencing, referred to as section 718 to section 718.2, and increased emphasis on the interest of crime victims, including the recognition that the harm done to victims should be considered at sentencing.

A conditional sentence of imprisonment is a sentence of imprisonment of less than two years that a court may permit an offender to serve in the community under conditions and supervision. Originally a conditional sentence was available to sentencing courts provided that the following prerequisites were present: the sentence was less than two years; the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community; and the offence could not be punishable by a mandatory minimum term of imprisonment.

Shortly after implementation, a requirement was added that the court be satisfied that sentencing the offender to serve a conditional sentence of imprisonment was consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. This was designed to respond to concerns that courts were awarding conditional sentence orders for quite serious offences.

In 2000 the Supreme Court of Canada held, in Regina v. Proulx, that the conditional sentencing regime did not exclude any category of offences other than those with a minimum period of incarceration. Nor was there a presumption for or against its use for any category of offence. The court stated, however, that it was open to Parliament to introduce such limitations.

Conditional sentences were never intended for very violent or serious crimes, but rather for less serious offences. The problem has been that not all sentencing courts have interpreted the availability of conditional sentences in the same manner, no consistency. Consequently many, including some provinces and territories became increasingly concerned with the wide array of offences that resulted in conditional sentences of imprisonment.

Over the years questionable conditional sentencing decisions have contributed to a loss of public confidence in the sanction and therefore in the administration of justice.

This government responded to these concerns when it tabled Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment) on May 4, 2006. Bill C-9 was referred to the Standing Committee on Justice and Human Rights on June 6, 2006.

Bill C-9 in its original form proposed a new criterion that would have eliminated the availability of conditional sentences for offences punishable by a maximum sentence of 10 years or more and prosecuted by indictment. This would have caught serious crimes, including designated violent and sexual offences, weapons offences, offences committed against children and serious property crimes such as fraud and theft over $5,000.

However, opposition members of the justice committee thought that the scope of Bill C-9 was too broad. The opposition voted to amend this legislation to only capture terrorism offences, organized crime offences and serious personal injury offences, as defined in section 752 of the Criminal Code, which are punishable by a maximum sentence of 10 years or more and prosecuted by indictment. This was similar to the approach in Bill C-70, which the previous government had tabled in the fall of 2005, but which died on the order paper with the call of the general election. Our government's attempt at report stage to reinstate Bill C-9 to its original form was defeated by the three opposition parties.

As is the case with other sentencing options, a conditional sentence must be considered in the context of the entire sentencing regime and especially the principles of sentencing.

Section 718 of the code states:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The preconditions for a conditional sentence, along with the deemed aggravating factors added to the Criminal Code by Bill C-42, such as evidence that the offender abused a position of trust, for example, were designed to screen out serious offences committed in circumstances for which denunciation, general deterrence and incapacitation should be considered the primary sentencing objectives.

In addition, the fundamental principal of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I find it hard to believe that this fundamental principle is being properly observed when a conditional sentence is imposed for serious violent or serious property offences.

Accordingly it is my view that the current conditional sentencing regime still fails to categorically make conditional sentences ineligible for many serious crimes. In addition to excluding terrorism and criminal organization offences prosecuted by indictment and punishable by 10 years or more, the Criminal Code also excludes serious personal injury offences from the availability of a conditional sentence.

The term “serious personal injury offence” was designed for dangerous and long-term offenders. It was borrowed to serve as a limit to the availability of conditional sentences by the amendments of the opposition parties to Bill C-9. A serious personal injury offence is defined in section 752 of the Criminal Code as:

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving

(i) the use or attempted use of violence against another person, or

(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

Only the sexual assault offences referred to in paragraph 752(b) of the Criminal Code are explicitly ineligible for a conditional sentence order if prosecuted by indictment. A finding that other offences fit the definition of serious personal injury offence will depend on the circumstances of each case.

Up until the coming into force of Bill C-9 on December 1, 2007, sentencing courts had only to interpret serious personal injury offence for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met according to part 24 of the Criminal Code, because that term was defined only for the dangerous and long-term offender provisions.

Since Bill C-9 came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences. The Alberta Court of Appeal in Ponticorvo, 2009 reviewed its decision in Neve, 1999, where it had considered the definition of serious personal injury offence in the context of dangerous offender provisions.

In that context, the court concluded that section 752 required that the offence considered be objectively serious. However, in the context of conditional sentences, the Court of Appeal found that the use or attempted use of violence sufficed and did not require any overlay of objective seriousness. In other words, it ruled that it should be easier for the Crown to establish that an offence was a serious personal injury offence, or SPIO, in the context of a conditional sentence than it was in the context of a dangerous offender.

The Bill C-9 case law only deals with crimes committed after December 1, 2007, when the legislation came into force, so there is really not a large number of reported cases commenting on the serious personal injury offences in the conditional sentencing context.

The decision of the Alberta Court of Appeal should have resulted in a more consistent application of the definition of serious personal injury offence within the conditional sentencing regime, which would have ensured that similar offences be treated as serious personal injury offences and therefore ineligible for house arrest or conditional sentencing.

While this approach has been followed in a majority of cases, unfortunately this has not always been the case. For instance, in both R. v. Becker, 2009, a decision of the Alberta Provincial Court, and in R. v. Thompson, 2009, a decision of the Ontario Court of Justice, courts were asked to determine whether robbery was a serious personal injury offence in the context of the availability of conditional sentences. In both cases, threats were made, yet in only one of the two cases did the court find that robbery met the definition of serious personal injury offences.

I can tell the House from my personal experience, having been involved with victims of robbery, that it is a serious offence every time it occurs to a person who is in the position of victim.

In R. v. Grewal and Grewal, 2009, a decision of the British Columbia Provincial Court, the court sentenced two accused to conditional sentence orders for the offences of assault with a weapon and assault causing bodily harm. The accused ambushed the victim on his front lawn, hitting him with a shovel and a fireplace poker. The victim required 10 to 20 stitches in his head, suffered broken teeth and neck, arm, thigh and hip pain. What happened? We have already seen in that case how it was not consistent with the rest of the sentencing principles.

In R. v. Prakash, 2009, a decision of the Ontario Court of Justice, the offender was convicted of unlawfully being in a dwelling house, uttering a threat, mischief under $5,000, criminal harassment, impaired driving and breach of a probation order. To me these are serious offences. After taking into account credit for pre-sentencing custody at a two-for-one rate, the offender was sentenced to one day in prison for the offences of impaired driving and breach of a probation order. He then got an additional 12 month conditional sentence on the remaining offences.

I cannot even imagine what the victims were thinking upon hearing those kinds of sentences.

Another concern with only barring serious personal injury offences from the conditional sentence option is that serious property crime such as fraud could still be eligible for a conditional sentence. We are well aware of recent examples of the devastating impact of fraud. Victims who have lost their life savings have called very recently for strengthened sentences for these types of crimes. It is hard to disagree with these concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, is still technically eligible for a conditional sentence, despite the amendments brought forward by our government's previous Bill C-9.

Our government intends to address this in Bill C-42 and in future legislation dealing with sentences for fraud.

Another consequence to the opposition's amendments to Bill C-9, our earlier bill to restrict conditional sentences, is that offences contained in the Controlled Drugs and Substances Act were not excluded unless committed as part of a criminal organization. Consequently, the production, importation and trafficking of a schedule 1 drug such as heroin would not be caught and would be eligible for a conditional sentence of imprisonment.

However, as hon. members would know, the government has proposed mandatory minimum penalties for serious drug offences in Bill C-15. I therefore expect that when that legislation is passed and enacted into law, as I hope will soon be the case, these offences would be ineligible for a conditional sentence.

It is clear to me, and I suggest to many Canadians, that greater clarity and consistency is needed as to the availability of conditional sentences for serious, violent and serious property offences. For these reasons, Bill C-42 proposes to eliminate the reference to serious personal injury offences in subsection 742.1 and make all offences punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for a conditional sentence.

Bill C-42 would also clearly make offences prosecuted by indictment; those punishable by 10 years' imprisonment; those that result in bodily harm; those that involve import, export, trafficking or production of drugs, or those that involve the use of a weapon ineligible for a conditional sentence.

While this element of the legislation will significantly limit the ambit of the conditional sentence regime, the addition of these categories would not capture all serious offences prosecuted by indictment and punishable by a maximum of 10 years. Therefore, Bill C-42 also proposes a list of 11 specific offences prosecuted by indictment and punishable by a maximum sentence of 10 years that would be ineligible for a conditional sentence.

These offences are prison breach, luring a child, criminal harassment, sexual assault, kidnapping, trafficking in persons, abduction, theft over $5,000, breaking and entering a place other than a dwelling house, being unlawfully in a dwelling house, and arson for fraudulent purposes.

Conditional sentences are an appropriate sentencing tool in many cases, but they do need to be restricted when it comes to serious property offences and serious violent offences. The prudent use of conditional sentence orders should strengthen confidence in the sanction and in the administration of justice.

I hope that all hon. members in the House will support Bill C-42 in its entirety.

Motions in AmendmentCriminal CodeGovernment Orders

November 1st, 2006 / 4:05 p.m.
See context

Liberal

Sue Barnes Liberal London West, ON

Mr. Speaker, I appreciate that because I would like to be able to get some time at my committee this afternoon to listen to the Law Commission of Canada. However, every day we are here at the same time that we are supposed to be at committee.

In any event, last spring in my original speech in the House on Bill C-9, conditional sentencing, I spoke about the need to have some change and some narrowing in the conditional sentencing regime. Many of those people who were in the House before the House was brought down for the last election recall that Bill C-70 was a bill from the former Liberal government that used these three areas that we have, in committee, amended the bill on: serious personal injury as in section 752, the area of organized crime and terrorism offences. Each of these categories would incorporate broad numbers of areas in the Criminal Code in respect of the availability of the conditional sentence in those areas.

The only difference with this amendment, other than the one clause that was not admissible because it talked about denunciation and introduced another thought that was also inadmissible, was the fact that we still allowed the judge discretion. The opposition members in the House think it is important that the judge in the courtroom hearing the facts of the individual case and seeing the individual person before the court has the discretion to choose amongst a large tool kit of available options of sentencing, anywhere from suspended sentence to incarceration, to probation, or to conditional sentencing.

Conditional sentence, under the Supreme Court of Canada, is said to be a real sentence. Members think house arrest, as they tend to call it, is some joke, that it is a comfortable zone. Try telling that to one's kids if one is under house arrest on Halloween and cannot go out and distribute candy, or cannot go to a family reunion. The person is told he or she can go to work with very restricted conditions or perhaps for treatment for an addiction. That is when a judge will tailor the offence.

Let us take the offence of robbery. In the Criminal Code robbery has a wide range. It can have a maximum term of imprisonment, but a robbery by definition is charged under the same section of the Criminal Code, whether it is a kid stealing a bicycle worth $100 or a person robbing a bank. There is a different and wide range of possibilities. It is the judge hearing the case who will determine how serious it is.

The law on conditional sentencing and the sentencing principles currently part of the Criminal Code say it has to be proportional. It says judges have to pay attention to who is before them and the facts in the individual case. It says they should do the least amount of restraint of the individual as is necessary. However, they cannot even use a conditional sentence unless the punishment is in a provincial situation of less than two years. They cannot even use it further unless the judge has determined that the protection of the public will be there. In other words, judges have to ensure that putting them into the public domain is safe for the community. That is what conditional sentencing is about. Judges can put in many things as conditions to go along with those sentencing principles.

What has happened in this bill? I remind everyone that the minority Conservative government dealt with the bill not by sending it to committee after first reading, so that there would be a wide scope for amendment and we could work collaboratively together, which I put on the record in my first speech last spring, but it sent it after second reading. It was a one paragraph bill that had many offences in the Criminal Code covered.

There were days in the House when all parties asked the government, especially on the property offences, why are they there, why does the government have this long list of offences that are property offences and not personal injury offences or not violence offences?

It is incumbent on the government, when it wants to restrict liberty, to justify and explain to Canadians its reasons for including so many offences that would not qualify in its opinion for a conditional release.

It is true that opinions differ among the parties in the House. We see the justice system differently than the Conservative government does. We want a judge to be able to deal with the situation of a sentence of less than two years and be satisfied that an offender serving a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in section 718 and section 718.2 of the Criminal Code of Canada.

On September 19, 2006 I asked the Minister of Justice when he appeared before the justice committee if the government would amend its own bill. I was told no. Throughout the committee process the government did not take one thing out of its bill until today, a couple of hours ago. It offered no amendments. The opposition, on the other hand, amended the bill at committee based on good evidence presented by a number of witnesses to include the terrorism, organized crime and serious personal injury offences that we discussed.

Bill C-9 was amended by the majority of committee members who listened to the evidence of Gladue courts. Gladue courts allow people on a conditional sentence, the aboriginal people in downtown Toronto who have addictions and are involved in criminal activity to support their addiction, to get treatment under a conditional sentence. We heard that evidence. Some of those people are addicted to serious drugs but they are not there because of trafficking in drugs. Trafficking is not by an individual; the organized crime section of the bill talks about three or more people being involved. They will pick those things up so that is the part not being heard.

Bill C-9 was amended by a majority of members on the committee after listening to the evidence of those people who operate diversion and treatment programs. We listened to Julian Roberts who gave the best empirical evidence on data collected. He came in from his current post in England to tell us the work he had done inside the justice department to fix this area where it needed amending, but not to the width and breadth that was there. What happened then?

We even kept in the notion that if there was a conditional sentence, it would not be available if there was a mandatory minimum. Therefore, for some of the driving charges, in the case of second and third offences, there are mandatory minimums. Conditional sentencing will not be there.

Just in case anybody thinks that the courts are running wild on some of these things, I have some numbers from Juristat.To hear the other side, one would get a conditional sentence as though it were mandatory. What happens? Let us just take a look at the total cases sentenced in 2003-04. Under impaired driving, operation causing death, there were 9,477 cases, terrible situations, and 98% did not get a conditional sentence. Under impaired operation causing bodily harm, there were 9,763 cases. Again, 98% of them did not get a conditional sentence. In other words, judges are still using their discretion.

There was a last minute change today. If the bill had been tabled last spring in the form that it is being presented here today, maybe we could have worked with it. When I ask the justice minister why he does not meet with the critics, there is no reason. It is not their way or the highway. We do have some expertise in this chamber, members who actually want to work to get things done.

The list presented today is an amalgam. It seems to have been hastily put together over the last couple of days. It has some of the sex offences, terrorism offences and organized crime offences that are already in our amendment. Some property offences have been kept and drug offences have been added. There is no available treatment for the few people in this country who might be willing to get treatment if they were given the opportunity. Granted, there are not that many of them, but the ones who do, do not have to spend time in prison, and maybe if they are fixed, they will be more productive members of society.

The Conservatives did not think of the provincial partners. We asked for the cost of their program, but they did not give it to us. They said they were working on it. Guess what? That is downloading to the provinces and that is not responsible.

We have a responsibility here. We have heard about some of the costs of the government's justice bills. We have it from the provincial ministers. We know that the government is looking at about $1.5 billion in infrastructure costs and about $300 million annual cost. We do not need to do this and we are going to reject--

October 23rd, 2006 / 3:40 p.m.
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Liberal

Sue Barnes Liberal London West, ON

Do you want me to speak to it?

Mr. Hanger, I can say right off the bat that I've had the opportunity to speak to your legislative clerk and the head of her team before she was assigned to this bill. She told me that especially because of the one-paragraph way in which the bill was formulated, it is very difficult to amend this bill at this stage.

There were many people who in testimony brought in the idea of discretion and the concept of denunciation. Basically this is the way the former Liberal government envisioned this section in the previous Bill C-70, going with some of these elements that under the rules—whether because of those two elements—I'm told will be out of order.

I was also told, and had verified by both her and the head of the department she works in, that any list would be out of order.

I am aware that this is out of order. I would still like to table it for the record for all those people who testified, saying that this is the way they would have preferred to go.

October 2nd, 2006 / 5:30 p.m.
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Liberal

Sue Barnes Liberal London West, ON

All right, then. Mine's simple.

In the previous Bill C-70, the drug sections of the controlled drugs and hazardous products were not included. I won't go over the reasons, but I just want to get your input. I know, Ms. Prober, that you're only concerned about the sexual thing, so maybe I'll leave you out of this for the sake of time. But I'd just like to go across.

Would you think that we should be removing this from any of the schedules respecting drug use? Should we take away conditional sentencing from any of them, from the least serious to the most, right across the board?

October 2nd, 2006 / 4:20 p.m.
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Liberal

Sue Barnes Liberal London West, ON

Thank you very much.

I'd like to go to David, please.

In the last Parliament it was never debated, never got as far, but there was Bill C-70. The intention of that bill--I'm not sure if you're familiar with it; I think the other witnesses are.

That was a presumption. It narrowed it down that the presumption was no conditional sentencing would apply in a certain list of offences. Those offences were terrorism offences, and that is defined in the Criminal Code, and actually would, I believe, go further than the delineated crimes here in the terrorism area; the criminal organization offence; serious personal injury offence, as defined in section 752; and any offence--and I picked this up from your evidence today--in respect of which, on the basis of the nature and the circumstances of the offence, the expression of society's denunciation should take precedence over any other sentencing objective. It also gave an extra clause that said if a judge wanted not to utilize that--in other words, to go against the presumption--the judge would have to put in writing before the court and justify why he took that away.

That seems very close to the testimony you've given here today. It certainly would stay within the principles of sentencing that I think are going to be very difficult under the current paragraph we have.

But before I ask you to comment on that, I will also say that the way...and the minister has come before committee, and I take him at his word that he's allowing us to figure out other ways to do this catchment if we so find an appropriate way. He's basically admitted this is a fairly arbitrary way. Short of listing things, as you actually go through the way it's set up in this bill, many of the offences would be captured. They're just listed differently. Then, because of the way the current bill is set up, it excludes the hybrids, so you take out a whole other set of potential things.

So to a certain extent they're similar, but they don't have the same quality of rationale, if I can put it that way, and I would think the Bill C-70 approach, or the approach you've come up with, would be one that would be more able to still leave the discretion with the sentencing judge. I believe your interpretation that we will have the prosecutors doing the discretionary work behind closed doors, not in a transparent manner, and there have been numerous studies to show that, despite the minister's own evidence saying no, no prosecutor would do that. They do it all the time, and the empirical data is there in the studies showing that it happens. It happens in every courtroom.

On that, I'd like David and maybe Lorraine's group to comment on those two things. We're only two to three weeks away from having to sit down seriously in this committee and work on some amendments to this, because I think there is some appetite for closing the door somewhat. Even though I'm a great believer in conditional sentencing, I'm saying we have to come up with something that's workable, not arbitrary.

September 28th, 2006 / 5:30 p.m.
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Liberal

Sue Barnes Liberal London West, ON

To follow that up, one of the things that would help alleviate the situation is if, instead of being an absolute, it was a presumption, a presumption against this.... And the way it was phrased in Bill C-70 was unless the judge put in writing. In other words, you can't get a conditional sentence for these listed offences. They had things like organized crime and terrorism offences. They were just there. But there was another section that said if there were exceptional circumstances the judge could put on the record reasons for giving one.

That was designed, I believe, to allow for that unusual situation, that variable situation, not the everyday. It is a presumption for, but there wasn't an alternate way for a judge's discretion.

I would like to hear from the police chiefs on that.

September 26th, 2006 / 4:55 p.m.
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Liberal

Sue Barnes Liberal London West, ON

Okay, maybe I'll go to Mr. Cannavino.

The old approach, in Bill C-70, had a way by which the sitting judge was told, for instance, you can't do a serious personal injury offence. But there was another clause that said, if there were exceptional circumstances and you provided written reasons to those exceptional circumstances.....

Here, we are put in a closed box. That's the current system. If you're in this catchment area, there's supposedly never any situation where you should be a little bit outside--you know, that unusual situation. That approach did give that, but the presumption was, here's where you're supposed to go unless you can prove that you're in an exceptional circumstance.

I'd like to hear your input on that, because frankly that's what we're going to be up against, and if you think there are some situations where that could happen.

Maybe Mr. Griffin could reply as well.

September 26th, 2006 / 4:50 p.m.
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Liberal

Sue Barnes Liberal London West, ON

Thank you.

Mr. Altimas, I understand from your brief that you noted that there had been another approach by the Liberal government in Bill C-70 that did a listing of things that they should want to narrow in on, which included things like organized crime, terrorism, and sexual offences, and then another sort of catch-all category where denunciation was the most important thing. In your brief you said you preferred that. The minister has come to this committee earlier and said he is open to other ways of looking at this. We are trying here, I think, to narrow this or put it into a perspective that people can feel comfortable with, both in the community and around this table.

But you must have had reasons for saying that, and I'd like to hear them.

September 19th, 2006 / 5:35 p.m.
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Conservative

Vic Toews Conservative Provencher, MB

Thank you.

The concern I had with Bill C-70 is the small out that you identified, because in my experience, those small outs grow into large manholes through which cases drop regularly. It reminds me, eerily, of the faint hope clause, which was to be used so rarely and of course was used fairly regularly. So I'm very concerned about that type of small out.

Parliament's responsibility is to set the ground rules and to set the floors in terms of sentencing. And I believe that this does not take away from the discretion of judges. I remember, when I was a prosecutor, a judge saying to an individual, “I can give you a choice: you can go to prison or you can go on a suspended sentence with a probation order with treatment.” They usually chose the treatment, and that was long before conditional sentences were ever available. I certainly recall that treatment was a part of programs, and I prosecuted back in the 1970s. Conditional sentences didn't add anything in that respect, that I recall.

If you're worried about some legal problem, there will be no legal problem if you set the rule very clearly by saying that anything that is punishable by ten years or more is not eligible for a conditional sentence. Then the principles in 718 to 718.2, of proportionality and the like, have to be seen in that particular context. Parliament has set a ground rule, and the interpretation has to be in the context of that ground rule. For example, in the case of the mandatory minimum prison sentences in respect of guns, which exist in the Criminal Code today, no one is saying that they offend the principle of proportionality simply because they take discretion away from a judge.

Criminal CodeGovernment Orders

November 14th, 2005 / 3:45 p.m.
See context

Conservative

Vic Toews Conservative Provencher, MB

Mr. Speaker, I am pleased to address Bill C-50, an act to amend the Criminal Code in respect of cruelty to animals.

It has been a great source of frustration for many Canadians that the government has been attempting to legislate changes to animal cruelty offences since 1999 without success. Several versions of this bill have wound their way through the House and Senate only to die on the order paper. The parliamentary secretary did go through those previous versions. There were concerns that the proposed amendments could have criminalized some common and lawful activities such as catch and release fishing, trapping, hunting, and even some farming practices.

We are not just talking about our friends the animals, which is how urban people might view animals, and we have lots of animal friends. I have a dog who is a friend. Animals are also used in the context of agriculture, and those animals are not necessarily our friends. We have to recognize that animals play a dual role in our society. I recall the 2% strychnine solution being argued here regarding our friends the gophers. Gophers destroy thousands of acres of land every year and kill or hurt other animals that fall into gopher holes. We have to remember that all animals are not our friends.

Throughout the debates on these bills, Conservative MPs and senators strongly expressed their desire to prevent abuse of animals, but sought legal protection for those who use animals for legitimate, lawful and justified practices. The Senate was ultimately successful in amending Bill C-10B to narrow the definition of animal and to ensure that current legal defences for legitimate practices would be maintained.

Bill C-10B was reprinted in the House of Commons as Bill C-22, and was supported by the Conservative Party in light of the Senate amendments. However, the bill died at committee in the Senate in May 2004 before the last general election.

As the parliamentary secretary has explained, this enactment would amend the Criminal Code by consolidating animal cruelty offences and increasing the maximum penalties.

One of the things we have to realize is that these changes to the Criminal Code will not make it easier to prosecute animal offences. It is very difficult to prosecute animal offences. We hear about all kinds of horrendous examples such as skinning a cat, or putting cats into microwaves, those kinds of things. The point is that these changes will not make it any easier to prosecute those types of offences. The injustice that is often done is a result of inadequate evidence to prosecute the offence.

I am not necessarily opposing these amendments. We have voted on them many times already. I am suggesting that when there is a conviction, meaningful sentences should be put in place. There have been philosophical debates about whether an animal is property or whether it is not quite a human being, as some animal rights activists would have us believe, but the point is that appropriate penalties need to be in place so that when these difficult cases are successfully prosecuted, meaningful sentences are imposed.

One of the concerns that many animal groups involved in agriculture, fishing and hunting have mentioned to me about the current bill is that it would make it illegal to brutally and viciously kill an animal regardless of whether or not the animal dies immediately. I have a lot of concerns about that particular provision because it really takes an urban person's point of view about the killing of an animal. Many urban people look at the practice of killing a particular animal as being brutal and vicious and therefore that practice should be stopped. The real point we need to consider is not simply whether it looks brutal or vicious, but whether the animal in fact dies immediately. We want to minimize the animal's pain. I think all of us are agreed on that.

I am concerned that what we are doing here is taking a key relevant factor in determining whether or not something is brutal or vicious and making it irrelevant. We need to take a look at that particular issue. That more than any other issue has raised concerns for the groups who depend on animals for their livelihood.

I have no concern about raising the penalties. If there is genuine cruelty to animals and a prosecution is successful, we need to prosecute those cases vigorously and impose appropriate penalties.

There is one thing I find remarkable about Liberals. I wish Liberals would speak as passionately about human victims as they sometimes do about animal victims. I am very concerned about human victims. This is perhaps an appropriate segue into that entire issue.

I raised in question period the issue that under Bill C-70 a judge will be able to impose house arrest on someone who rapes a woman. The minister said that there would be exceptional circumstances where that would happen. I asked him in question period today under what exceptional circumstances should people who rape women serve their time at home. I am concerned about that kind of thing.

I am concerned about brutality toward animals, but I am also very concerned about the brutality that we demonstrate to other human beings. When we catch those animals who commit crimes against their fellow human beings, we say we should leave the door open for exceptional circumstances so that the poor rapist can serve his time at home. I am concerned about that kind of thing and I dare say most Canadians are.

I am concerned about drug dealers who are peddling poisons that kill our children. I am concerned about that. Yet under the Liberals' Bill C-70, drug dealers who are repeat offenders can get house arrest. I wish Liberals would talk as passionately about keeping those kinds of animals behind bars, those who would do that kind of thing to our children and fellow citizens.

I have pointed out a very practical problem with this bill. I hope the parliamentary secretary looks at that particular issue. At the same time I would encourage the parliamentary secretary to ask the Minister of Justice what he is doing in Bill C-70 to allow vicious, brutal rapists and drug dealers who are destroying our youth and communities to get house arrest in exceptional circumstances. We were assured by past justice ministers, Allan Rock and others, that it would never happen that conditional sentences or house arrest would be used for violent offences.

I want to see some amendments to this bill. I think it is moving in the right direction. We have had this debate over and over. I remind the parliamentary secretary that he should show the same concern for human victims as he does for animal victims.

Criminal CodeRoutine Proceedings

October 27th, 2005 / 10:05 a.m.
See context

Mount Royal Québec

Liberal

Irwin Cotler LiberalMinister of Justice and Attorney General of Canada

moved for leave to introduce Bill C-70, An Act to amend the Criminal Code (conditional sentence of imprisonment).

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