Bill C-10 (Historical)

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

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

Criminal Code

[Wayne Easter, Liberal, Malpeque, PE]

Mr. Speaker, if there is any member in the House with whom I am absolutely surprised, it is the member for Winnipeg Centre. He continually compromises his principles to get in bed with the Conservative Party of Canada. There are mandatory minimum sentences right now in terms of gun crimes. He knows it, but he wants to stay in bed with those folks over there.

If you would go out there and tell your constituents about those mandatory minimums and the deterrents, then he would be doing something. He abolished the principles of the NDP Party long ago to get in bed with the Conservatives.

Tell the public the facts on Bill C-10. Do not misrepresent them like the member for Winnipeg Centre is doing.

[The Deputy Speaker, Bill Blaikie]

I would just remind the member for Malpeque to not let anger get in the way of using the third person.

[Pat Martin, NDP, Winnipeg Centre, MB]

Mr. Speaker, I rise on a point of order. Surely there is some obligation for hon. members to stay away from complete fabrications and untruths. Is there nowhere in the rules or Standing Orders that one has to tell the truth from to time? Is there nothing barring somebody like him from standing and making an insultingly, completely--

[The Deputy Speaker, Bill Blaikie]

It sounds to me more like a point of debate.

The hon. member for Scarborough—Rouge River.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I am going to resist getting into that pushing and shoving match which we just witnessed. I want to get to the issue of sentencing, as we debate Bill C-10.

As we all know, Bill C-10 bulks up the number of mandatory minimum sentences that would be in the Criminal Code. While there is room in every Criminal Code for some mandatory minimums, the easiest one is the sentence for first degree murder, which has a mandatory minimum sentence of life, at least in our country. Other countries have other penalties.

We are not really debating whether there should be a mandatory minimum sentence in place for any particular crime. We are debating the extent of those mandatory minimum sentences.

I used the term that the current bill bulks up. It really does bulk up or materially increases the number of mandatory minimum sentences that would be in the Criminal Code, if the bill passes, with particular reference to firearms offences. At the end of the last Parliament, an attempt was made to increase, by a small margin, the number of mandatory minimum sentences associated with the criminal use of firearms. In fact, the House passed a bill only within the last few years which did precisely that.

When I looked at the data, I came across what I thought was an interesting perspective on crime statistics. It has to do with how we look at crime statistics across the country. Although I have had many occasions to look at statistics over the years, I had not noticed any of this before. Members may or may not relate to this.

I represent a Toronto area riding. When I looked at the crime statistics for the Toronto area, the census metropolitan area called the CMA, the Toronto CMA was number 26 on a list of 27 Canadian metropolitan areas for crime. That means there are 25 other municipalities in Canada that have crime rates in excess of that in Toronto for the timeframe that ended with the year 2004. I thought that was peculiar. I would have thought the big cities would have had the highest crime rates. It turns out I am wrong.

Toronto was 26 on a list of 30 for criminal statistics kept by police forces across the country. Those are reliable statistics, too, but vary slightly from Statistics Canada. I will mention some of the places that were near the top of the list. This is not for the purpose of maligning these communities. A problem with crime in Canada is a problem for all Canadians as well as the communities involved. All five of the communities with the higher overall crime rates, Regina, Saskatoon, Abbotsford, Winnipeg and Vancouver, were all cities removed from the eastern part of Canada.

If I were an MP coming one of those communities, I would be telling the House that there is a relatively high crime rate in my community and that we have to do something about it. If I come from a community with a lower crime rate, I will say that there is a crime problem but we have to look at it in perspective. I had always been curious as to why there was a difference in perspectives among members of the House when it came to the current data.

Perhaps that is part of the explanation for communities that have higher crime rates. I am not talking marginally higher, I am talking double and triple the rates in some of the other eastern Canadian cities. If I were to be representing a high crime community, I would be pulling the chain a lot more firmly in terms of getting an appropriate response to dealing with those crime levels.

I want to point out that the sentencing regime, the sentencing used for both the cities with the lower crime rates and the cities with the higher crime rates is the same. Therefore, I do not think we can say it is the sentencing that is responsible for the higher crime rate.

We might also want to say that it is not the sentencing which is responsible for the lower crime rate. However, we are talking about material differences in crime rates, but the same sentencing regime.

We ought to look at the real crime data. I will ask members to look back 15 years or more to a report of a committee of the House, the justice committee. It was chaired by Dr. Bob Horner. At that time we looked at the crime rates in the United States of America. It had the highest imprisonment rate of all the countries where there was data on incarceration.

Looking back at our report, we said that if locking up all those who violated the law contributed to safer societies, then the United States should be the safest country in the world, which it was not. The U.S. Senate judiciary committee agreed. Using 1990 data, it said that the United States was a world leader in reported murder, rape and robbery rates. Yet it had the highest incarceration rate. The higher incarceration rates did not noticeably improve, in any way, the risk and crime rate levels in the United States.

At about the same time, it is true that the crime rates in Canada were relatively high. They had gone up, the prior 10 years leading up to 1991. Starting in 1991, the crime rates began to drop, and they have been dropping ever since in Canada, not because of the Horner report and not because of what Parliament did or did not do. Looking back, it probably had a lot to do with the sociological factors that caused crime.

I would love an opportunity to go into those today. I will not have a chance. I will simply make two or three points.

First, I believe enforcement is a major component of reducing crime. I think that has been proved in the community I come from. It is being proved now as police and prosecutors are learning how to do better enforce.

Second, crime prevention initiatives have payoffs, but it involves the long run. Factors that give rise to crime are poverty, physical and sexual abuse, illiteracy, low self esteem, inadequate housing, school failure, unemployment, inequality and dysfunctional families. These have all been identified as the root causes of crime. Increasing mandatory sentencing does not address any one of those at all.

That is with regret. That is why I am having difficulty with a wholesale entry in mandatory minimum penalties. I could accept that there would be a few serious crimes where society had an interest in increasing, the denunciation factor, the desire of Canadians to say that this offence is so serious that we have to attach a mandatory sentence, a one-off. However, the bill does not do that. It takes a whole file, a whole truckload of offences and creates mandatory minimums. I suggest that is not the way to go.

I encourage us to continue the debate here or at committee. Let us look at the sentencing principles contained in the Criminal Code. They are well enunciated. They were established by the House approximately 12 years ago. They are very good and they speak conceptually against the concept of mandatory minimums.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Mr. Speaker, I have a simple question to ask the member opposite based on what I have heard.

Everyone who commits a crime in Canada is a product of some exclusion of society. Therefore, it is justified that they are able to commit these crimes and we should all feel sorry for them.

If someone were to commit a sexual offence, aggravated sexual assault with a firearm, be convicted under the change in law and not able to commit another offence for five years, would the member feel good about telling the parents of a young daughter from his constituency that the individual was locked up for five years and not on the street able to do it again? That would be five years for an offence like that where victims would have some feeling of retribution and a sense of justice for the crime committed against them.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, the hon. member takes the slam the cell door closed and throw away the key approach. I think every sentencing decision is based on its own merits and we rely on judges to do that with the general direction of appeal courts.

However, as a parent I would be concerned about any crime, but let me put this back to the member as a scenario. With the proposed mandatory minimum sentencing, what if a very well intentioned Crown prosecutor decides he or she wants to take a guilty plea to a lesser included offence? Instead of getting the mandatory minimum which the member would like to see, we end up taking a summary conviction plea or another lesser included offence and we end up without the mandatory minimum at all.

By imposing mandatory minimums across the board, defence counsel and Crown attorneys across the country will attempt to both use the higher penalty to induce plea bargaining and an attempt to avoid incarceration rates that will come with that.

As sure as night follows day and day follows night that will be a consequence of ratcheting up the mandatory minimums. I do not mind if the person culpable of the offence outlined by the hon. member is put in jail for five years or ten years provided that is a fair sentence determined by a court after a fair trial determined by a judge. I am happy to see the person put away for a long time, but not just on this chart of lock'em up and throw away the key approach that seems to be contained in the bill.

The House resumed consideration of the motion that Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I rise today to speak on Bill C-10, an act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act.

The bill is, I suppose, in furtherance of one of the government's priorities: to get tough on crime. I believe I am speaking for all parliamentarians when I say that we do want safe streets and communities. Certainly I agree with that statement. However, I cannot agree with the provisions of this bill.

At our disposal as parliamentarians we have a number of tools dealing with crime. This bill is analogous to taking a sledgehammer out of the toolbox when a hammer should be and leaving four other relevant and applicable tools in the toolbox when they should be used in this whole issue of crime prevention and elimination.

As parliamentarians, we make laws, which are the standards that we ask citizens to apply in their day to day lives. In a lot of instances, laws are not followed, which of course leads to the second issue of what happens when the law is not followed, and that of course depends on the severity of the particular law, regulation or rule.

When a serious offence occurs the person is charged, he goes to trial or pleads guilty, and he is sentenced. This sentencing process that we are talking about is an important issue.

Before I became a parliamentarian, I practised law for 25 years. I have been involved in many sentencing issues, both as a prosecutor and as a defence lawyer. I can say right now that sentencing is a extremely complex issue. It involves the accused, the accused's family, and the victim of the crime, as well as society in the larger issue. I can tell members right now that no two cases are alike. A lot of people would like to make a very simple statement that they can make one rule which would involve every sentence that a particular judge has to deal with, but that is simply wrong.

There are certain principles that have to be followed in a sentencing process. The first one, of course, is proportionality. The sentence has to be proportional to the gravity of the offence. The protection of the public, of course, is a very important principle. Everyone is concerned about retribution: that the accused serve a sentence based upon the gravity of the crime, of course, and the possible rehabilitation of the offender.

These principles are all codified in section 178 of the Criminal Code. We as a society leave the actual sentencing up to the judge. The sentence has to be done according to the principles, but again, as I said, no two cases are alike. At the end of the day, when all is said and done, we have to leave some discretion to the judge.

Can the system be improved? Of course it can and that was the reason why the previous government introduced Bill C-2, which did increase certain sentences but dealt with a lot of other issues and the whole issue of crime and crime prevention.

When Bill C-10 came before the House, I listened to the debates, read a lot of the background materials and, at the end of the day, I have concluded that it is the wrong approach.

First of all, I look at what the experts are saying. Our society is not inventing the wheel here. A lot of people study these issues. Here, in Europe and in the United States, they study what works and is effective and what does not work. Almost exclusively, the experts who have studied these issues have come to the conclusion that mandatory minimum sentences in offences like these are not the way to go. That is the position of the Canadian Bar Association, the American Bar Association and most criminologists. Again, I read what they have to say.

The second question I asked myself was if it was effective. What disturbed me the most in the debate was the comments from the justice minister when he introduced the bill. He referred to studies in Massachusetts, Florida, Virginia, New York and other states. I did not, but others probed into these studies and determined the results of the studies indicated that they were the exact opposite to what he said in the House.

When we do something like this, we are talking about the law of unintended consequences. We are dealing not with a minimum; we are dealing with a ceiling. We are dealing with more trials, more prisons and more costs to society. Then we have to ask ourselves the basic question. Could the money be spent more efficiently and more economically?

One additional item that concerns me and disturbs me is the whole issue of minority groups. Perhaps one statistic could put the whole debate in perspective with respect to this issue.

At some point today, an aboriginal child will born in Canada, probably in your own city of Winnipeg, Mr. Speaker. According to the statistics, that aboriginal child has a more likely chance of going to prison than going to college. I do not even have to say any more about how the sentencing system and our justice system have treated minorities in our country.

Then it is easy to say if that does not work, what does work? I believe effective sentencing works. We all have to strive toward that. I will not stand in the House and say that the system is perfect. It needs improvement. Perhaps the most important thing we should be looking at is more effective and increased law enforcement.

We have to look, as parliamentarians and as a society, at the causes of crime. What causes people to breach the law? Is it education? Is it poverty? Is it health? These are all factors that have to be taken into consideration as society tries to deal with this problem. I should add too that there are some alarming statements made by certain people in the media, but I believe most people know that crime is in the decrease in Canada.

The issue of civil engagement and crime prevention have to be taken into consideration when we move forward on this issue.

I read the legislation. As I stated, the issue of trying to tie the hands of the judges, which in effect creates a ceiling, not a minimum sentence, is the wrong approach. I do not support it. Most people in the field of sentencing and in the field of criminology do not support it.

I believe we should go back to the drawing board. We should come forward, using all tools at our disposal, tools regarding a more effective and increased law enforcement, the causes of crime, issues we can deal with in society to prevent crime, issues that should be dealt with as a package.

I do not support the bill in its present form. I support the concept of lessening criminal behaviour and I support the principle of safer communities and safer streets, but this is not the way to go.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I listened carefully to the remarks of my hon. colleague. I would like to have his opinion on the following. Minimum sentences tie the judges' hands. We in the Bloc Québécois believe that they do so unnecessarily because, in our opinion—and I am sure that my hon. colleague is thinking along the same lines—judges remain in the best position to determine what sentence is the most appropriate in light of all the facts of the case. They hear evidence and submissions. They, better than anyone else, should know what sentence would be the best. With this bill, the government would be taking this discretion away from judges.

The second point on which I would like to hear my hon. colleague is the opinion of all crime experts that the use of minimum sentences does not lower the crime rate or the recidivism rate. That is a major reason to oppose Bill C-10.

I would like to hear my hon. colleague on these two points.

[Shawn Murphy, Liberal, Charlottetown, PE]

Mr. Speaker, I agree with the premise of each of the questions. We are tying the hands of the judge if we adopt this legislation.

The whole issue of sentencing has been developed over hundreds of years. Again, I am not going to say it is perfect, but it is based upon certain principles. There are about five or six principles that the judge has to consider, and they are codified in section 108 of the Criminal Code.

The judge is a lawyer and is trained. More important, the judge has heard all the evidence dealing with the particular offence, heard the record of the accused, probably received a psychological assessment on the accused and has received a victim impact statement. For us, as parliamentarians, to later tie the hands of judges and say what they can or cannot do is wrong.

I will conclude with two quick comments.

Again, no two cases are alike. No one in this House, or in any House, should say that they are wrong or that they do not know what they are talking about.

My learned friend spoke about the specialists. I have read a lot of the reports. I have heard the debates here. My learned friend is quite correct. All the people who study these issues state clearly and unequivocally that the mandatory minimum is not effective. That is the reason why we should not pass this legislation.

The House resumed from June 12 consideration of the motion that Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act, be read the second time and referred to a committee.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

Mr. Speaker, I rise to speak in opposition to Bill C-10. My constituents in Etobicoke—Lakeshore made their concerns about public safety very clear during the last election campaign.

I will not forget knocking on the door of a family in my riding who had just lost its nephew in a gun crime shooting in Montreal. I went to a memorial service held in the young man's honour and we all felt shock and anger at the senseless waste of a young life. The young man's uncle asked me what I would do to reduce the incidence of these terrible crimes and I pledged to support any reasonable measure that would make such tragedies less likely in the future.

Everyone in the House, especially this member of Parliament, wants to keep faith with families who have lost loved ones to gun violence. Everyone in the House wants to reduce this scourge of gun crime.

The question before us today is not who is tougher on crime. The question is, what is the most effective way to do so? That family in my riding does not want us to play politics with its grief and anger. It wants balanced measures that work. Balance means measures that address all features of the crime problem in our society rather than using sentencing tariffs as the unique yardstick of whether criminal justice policy is sufficiently tough.

Balance means giving all our crime fighters, the police, the crown attorneys, the judges, the neighbourhood watch organizations, the youth workers, the school teachers, the parents, the parole and probation officers, the correction officers and, yes, the good people who run the gun registry, the support and resources they need to work together to reduce crime in our society. Recent arrests of drug gangs in Toronto prove the effectiveness of a targeted and tough police action, and the Toronto police deserve all possible praise for these raids.

A balanced approach includes tough sentences for heinous crimes, but the Criminal Code already contains 42 mandatory minimum penalties. Many of these were placed on the statute books by previous Liberal administrations. The political charge that this side of the House is soft on crime just will not wash.

The question before the House is not whether there should be some mandatory minimums for serious crimes, but whether it is good public policy to increase their number and severity and to make this the sole focus of criminal justice policy in the government.

Instead of a balanced approach—increased funding for police forces and the RCMP, the courts, legal aid, youth employment programs and crime prevention in schools—this government proposed a single new tool: a new series of minimum sentences for a variety of crimes committed with a firearm.

Instead of listening to the valiant army of people who fight crime, this government decided that petty politics took precedence over efficiency in fighting crime.

The people of my riding do not want to play petty politics with crime. They want a balanced approach that is based on actual facts and delivers tangible results.

Bill C-10 fails the test of balance. Instead of investing new resources in the police, in the courts, in the probation and parole systems, the federal government, and provincial ones as well, will be forced to invest millions of dollars of scarce criminal justice resources in new prisons. This is not balanced. This is just ideologically driven public policy.

The second test that criminal justice measures must pass is evidence. In his testimony before the justice committee, I heard nothing from the Minister of Justice that approached an evidence based approach that would justify the new tariffs. There is good reason for his silence. There are no studies that prove, with any degree of conclusiveness, that increases in mandatory minima do actually reduce the incidence of gun crime.

The Parliamentary Secretary to the Minister of Justice said in the House on June 6 that he “wanted to send a message to criminal gangs”, but he went on to say:

Whether or not they are paying attention and will think twice before committing a serious crime with a firearm remains to be seen....

This suggests that the government does not know whether mandatory minima deter. It wants to send a message but it has no idea whether the message will get through.

The United States has just come through a 40 year experiment with mandatory minima. No reputable criminologist believes that this explains the fall in serious crime rates in the United States. The causes, the experts agree, can be traced to jobs, to prosperity, to better prospects for the poor and a demographic decrease in the proportion of young adult males who are responsible for most serious crime. Already many American states are abandoning mandatory minima. Why should Canada rush to adopt a policy that many thoughtful Americans reject as a failure?

The use of mandatory minima, however, has had one obvious effect. The U.S. now has the dubious distinction of having one of the highest incarceration rates in the world.

When I was a young graduate student, I used to spend every Tuesday night for about four years in a medium security prison working with the prison chaplain with a bunch of young lifers who were doing mandatory minimums for serious crimes. After that experience of four years, I came away with one very clear conclusion: Prisons are essential to remove dangerous offenders from society but prisons also render most offenders worse.

The unfailing consequence of Bill C-10 would be to increase the Canadian prison population and, as a consequence, increase the number of criminalized individuals who, when released, are likely to reoffend. Instead of reducing crime, Bill C-10 might just have the opposite effect.

Because Bill C-10 would increase the prison population, this would have serious public expenditure consequences. The House and the country is entitled to know what these measures will cost. Nowhere has the government presented real estimates of what it will cost to increase our prison population, but we can have some idea.

We already know that it costs $80,000 to keep a Canadian in prison. The House and the country will want to know why the government believes it should spend more scarce criminal justice dollars on keeping people in prison and possibly making them worse, when the same money could be spent on a balanced investment, in more police officers, probation and parole personnel, improvements in legal aid and the court system.

Bill C-10 fails the test of balance. It fails the test of evidence. It also fails the test of justice. By justice, I mean the requirement that sentences fit the crime. As my colleague, the member for London West, so ably pointed out, a person who commits a crime with a long gun under this legislation is likely to face a lower penalty than someone who commits an equivalent crime with a handgun. Where is the proportionality? Where is the fairness in this?

In our system we leave the adjudication and proportionality to judges. They are trained to determine the circumstances, mitigating or aggravating, that ought to determine what penalty fits the crime. The escalating tariff proposed by the government makes it more difficult for our criminal justice system to achieve proportionality and fairness.

My party has always believed in a different balance between the legitimate prerogatives of the legislature and the courts and between the imperatives of public safety and the need for proportionality.

In conclusion, Bill C-10 is not a balanced approach to public safety. It is not evidence based and it fails the test of proportionality. On these three grounds, I will vote against it.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I listened with great interest to what the hon. member for Etobicoke--Lakeshore had to say and I disagree with him wholeheartedly.

It was not that long ago that a heinous crime occurred in Toronto and the former chief of police, Julian Fantino, indicated that he had had it with the revolving door justice system and that the age of hug a thug, as he put it, was over. Our government never presided over the age of hug a thug but members opposite did. Obviously the whole notion that they are soft on crime is coming from society and not from us.

I would like to suggest that the member opposite look into what occurs in our federal prisons which actually have a very good record of rehabilitating prisoners. He may want to refer to them.

I would like to suggest to him that the bill is about justice, justice for victims and justice for society. Where does that enter into his paradigm of considering whether it is a balanced approach or not? I would like to hear the answer.

[Michael Ignatieff, Liberal, Etobicoke—Lakeshore, ON]

Mr. Speaker, I take some exception to the idea that previous Liberal governments were associated with hug a thug. As I made perfectly clear in my statement, the previous government took added mandatory minima where it felt there was a public order justification. I would point out to the hon. member that over the last 13 years Juristat statistics make it perfectly clear that crime rates fell on the Liberal watch because we took a tough and balanced approach.

As the hon. member rightly said, this is a question of justice, but justice does not consist of locking people up and throwing away the key. If the hon. member is as concerned as he says about rehabilitation in prisons, then I would see measures in the government's estimates that would amount to an investment in rehabilitation programs in prison. I see no such evidence of any investment in those programs.

Once again the hon. member is trying to play this as being that side of the House is tough on crime and we are weak on crime. The Canadian public is entirely sick of this falsely polarized debate. The entire House takes the most serious view of serious crime, as I made pretty clear in my statement. Let us move beyond this and assess this measure on its merits. I have assessed it according to three criteria and it has failed to pass the most elementary test of justice.