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.

[Alan Borovoy]

Thank you.

I'm here on behalf of the Canadian Civil Liberties Association. To my immediate left is our project director of public safety, Alexi Wood.

I have three points to make. The first is that mandatory minimum sentences are capable of producing very serious injustice. One of the most effective examples is the current plight of Saskatchewan farmer Robert Latimer. For ending the life of his severely disabled daughter, Mr. Latimer was charged with and convicted of second-degree murder. And for that, he drew the automatic sentence of life in jail with no chance for parole for ten years. What's particularly troubling about this case are the facts. As found by the judge, Mr. Latimer committed this deed to relieve what he saw as the unremitting, terrible pain his young daughter was suffering. In the judge's words, Mr. Latimer was motivated solely by his love and compassion for his little girl. As a result, the judge gave Mr. Latimer a constitutional exemption from the operation of the mandatory minimum and gave him a much lighter sentence. The other tryers of fact, the jury, recommended he be eligible for parole after one year. So those who were finding the facts, who heard all the evidence and saw all the witnesses, urged a course of leniency.

Now, it isn't necessary to excuse mercy killing in general, or Robert Latimer in particular, in order to be outraged by the current punishment this man is suffering. Most second-degree murders are committed out of hate, greed, or at least selfishness. It is repugnant that a compassionate father who breaks the law out of love should suffer the same penalty as a malevolent robber who breaks the law out of greed. In the opinion of the Canadian Civil Liberties Association, this situation is nothing less than a national disgrace, and the culprit is mandatory minimum sentences that permit no flexibility, that rigidly impose a sentence regardless of whatever peculiar or particular circumstances may apply. That is the first case.

I have another case to illustrate the nature of the injustices this is capable of producing. In 1994 the Ontario Court of Appeal reduced the jail sentence of a prisoner who had been convicted of discharging a firearm with intent to cause harm. They reduced this sentence from 12 months to six months because in the opinion of the court he had an exemplary record previously and he was acting in a situation of high stress that required split-second decision-making. The prisoner, it turns out, was a police officer. The person at whom he unloaded his firearm was a burglar he was chasing. He grazed his arm.

Now, if that man had come up for sentencing today, he would have to serve no less than four years. Thanks to the grace of Bill C-10, he could have to serve five years. I find it inconceivable that even the most ardent proponents of mandatory minimum sentences would wish that kind of outcome on that police officer.

How does this happen? It's because simplistic solutions such as mandatory minimum sentences inevitably encounter complex reality, and you can't always make them fit. That's the reason why this is such an abomination.

That's the first point. The next two points will run much more quickly.

The second point is that even as mandatory minimums cause a lot of harm, they also produce virtually nothing for public safety. One of the reasons is probably quite obvious, and that is that, as studies have demonstrated, the greatest number of people in the public don't have the remotest idea what crimes are accompanied by what mandatory minimums.They simply don't know. The more you add to it with all the fancy tables—if you're convicted this many times, and that many times.... Whoever thinks that any member of the public is going to know this?

How in the world is anything supposed to deter the commission of crime if the people it's supposed to deter don't know it exists? Small wonder that there is a wealth of literature that reaches the conclusion that these mandatory minimums do not contribute to public safety.

The third and last point is that there are alternatives to mandatory minimums. If a judge imposes an excessively lenient sentence, there is recourse to appeal. And prosecutors have appealed, and courts of appeal have increased sentences in circumstances that warranted it. It has happened on a number of occasions; this is no secret.

Consider the difference. If a sentence is too lenient, it's subject to appeal; if a mandatory minimum in a particular set of circumstances is too harsh, there's virtually nothing you can do about it, except perhaps pray. That is an unacceptable double standard in our justice system.

The final point I would like to make about the alternative is that for those few crimes that are so horrendous it's inconceivable that they wouldn't be worthy of this mandatory minimum—such as murder, for example—one way to deal with them is by what we call a “presumptive minimum”. That is, you might provide—for murder, let's say—life in prison, but say presumptively “unless a court finds exceptional circumstances”. That signals to the court that this minimum should apply unless the circumstances are genuinely compelling.

There's no reason to make it a conclusive mandatory that is so insensitive to peculiar differences in situations. There's simply no earthly reason to do it.

To sum up, Mr. Chairman, we say that mandatory minimums should not increase. Indeed, they should decrease, first, because they are capable of producing very serious injustice, and have; secondly, because they contribute virtually zilch to public safety; and thirdly, because there are viable alternatives to using them.

All of which is, as always, respectfully submitted.

Thank you.

[The Chair, Conservative, Art Hanger]

I would like to call to order this meeting of the Standing Committee on Justice and Human Rights. Before us is the continued debate and discussion on Bill C-10, an act to amend the Criminal Code on minimum penalties for offences involving firearms.

We have the following witnesses before us today: from the Canadian Civil Liberties Association, Alexi Nicole Wood, the program safety project director, and Mr. Alan Borovoy, general counsel; from the Church Council on Justice and Corrections, Monsieur Laurent Champagne, the president; and from the John Howard Society of Canada, Mr. Graham Stewart, the executive director.

I thank you all for being here.

I will turn the floor over to the—

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Lee.

Mr. Stuesser, I'm an old robbery detective; I've been a major crimes investigator. Among all the cases you have alluded to, when it comes to loopholes and the way matters are handled in court, the definition of things such as “membership in a criminal organization” has created a real problem for the courts. Nobody's been able to define it in logical terms, such that the police can go and collect the evidence and say, “Here it is.” I know that some of this can be rectified. But to prove that a particular individual is a member of a criminal organization, you're having to go into maybe revealing police sources about what kind of evidence is there, which may not be to the best interests of the public, because it's intelligence.

If this is so difficult to do with Bill C-10—matters like this, or the description of a firearm—when you're looking at a victim who's been traumatized.... If this is so difficult to do, what would your suggestion be? I detect that you're not wanting to really say, “We don't want this legislation, period.” You see some very practical issues here that need to be addressed.

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

Thank you.

My question is for Mr. Lee, Mr. Cannavino or Mr. Stuesser.

When we want to evaluate a justice system, we have to know how others perceive us. In the United States, one New York judge gave one criminal convicted of aggravated assault the choice of one year in prison in the United States or three years in Canada. The individual chose three years of prison in Canada. It's obvious: it's because we're permissive. Is that out of greatness of spirit? Is it a quality? I don't know, but for the moment, we have a problem, and that's how people perceive us.

When a drug trafficker has to land because we know he's transporting drugs, he won't land in Vermont. He'll do everything possible to land in Beauce, because he knows his sentence won't be as harsh.

There's also another factor that bothers me a bit. The Attorney General of Ontario, Mr. Bryant, appeared before our committee. He seemed to agree with us, and you mentioned him in your brief. He represents 16 million of the 32 million inhabitants of Canada, approximately half of Canada. I imagine he speaks on behalf of at least 50 percent of the population. What's strange is that he's a Liberal. In his region, there are other federal Liberals and New Democrats. So I imagine they must talk to each other because they're close to each other.

Mr. Cannavino, the bill we want to pass concerns serious crimes. However, in Montreal — here I'm referring to Mr. Chartrand's remarks — there are now gangs of blacks. That's the fashion. There are others in Toronto. We know there will be more blacks in prison, because they hold the power in the Montreal region.

In your view, is that the only justification? Mr. Chartrand said earlier that it was senseless, because there will be more people from certain ethnic groups in prison. I'd like to know whether you believe that Bill C-10 has a colour or whether it will help you solve the gang problem that exists right now.

[Prof. Lee Stuesser]

I suppose I'm a bit of a pragmatist. Some people may well argue that we should have general discretion for all of the sections in Bill C-10. I don't think that will fly, with all due respect. I believe the tenor of the community, of the country, is that they do want some tougher laws.

I propose a very limited exception. There is some wording used by, for example, some of the justices in a case called Morrisey, where they talk about “grossly disproportionate” with regard to both the offence and the offender. For example, if a gang person committed an offence, I would submit that no judge in the land would regard this person as falling within the exception. It would be phrased such that the court would well appreciate that this would be an exception.

Incidentally, in my own view, I feel that the courts will in fact support the constitutionality of the provisions. I really think the whole difficulty is going to be, as in my lady example, that she will have no recourse, she will go to jail for four years--unless Parliament recognizes that there should be an easier way for unintentional use of a firearm.

[Prof. Lee Stuesser]

I'll just make a couple of general observations.

If you're going to look for statistics to show that deterrence works, you're not going to find them, quite frankly. I think all the studies have indicated that maybe there might be minimal input. This issue isn't really for criminologists or sociologists, quite frankly. It's a political decision that, as part of, hopefully a whole package of things, can address this. This is but one bit.

I'm just being blunt on this because when I look at the literature that I've seen, I've not seen any conclusive studies that say deterrence works. In fact, if anything, the studies in the United States in particular have shown that it has not worked. But, in fairness, I think the United States went to excess in California or elsewhere. The legislation that you have here is far more surgical. You seem to be pointing at violent crimes and the use of firearms, and that's far more surgical than what we have in the United States.

You can bring in all the experts you want on this, and one will say, “Mr. Lee will say one thing, but we can bring ten other experts to say the other.” Where is that going to get you? It's the battle of the experts.

Firm, fair, and fast--I couldn't agree with you more. I come from Manitoba. We're a small province. You'd think we should be able to arrest a person, have the trial, and get that done within, say, three or four months. Do you know what the average time is from the time of arrest to trial in Manitoba? It's approximately a year or more. And we're a small province. That's terrible. And it's systemic, right? It's in the court system and the lawyers.

As a result of the delay, the judges have a very difficult decision to make. They have a person who has committed a violent offence. What do they do? Do they deny bail? That means he's going to be sitting in remand for a year, which is why judges will often release, as the legislation in fact provides. Then, of course, the person commits.... So if we could have speedier.... Now here's the reality. It's going to cost, and it's going to cost the Province of Manitoba a great deal because they're in charge of the administration of justice.

All I'm saying in terms of these things is that I quite agree with you.

On fairness, though, if you look across the common-law world where mandatory sentences have been in for quite awhile, do you know what they're doing? They're retreating. They've been moving a little bit more to some discretion because I think they recognized it was too blunt an instrument.

All I was saying in my presentation here is that I've identified two crimes in particular where I think real unfairness can occur, and I gave you the concrete examples. One is criminal negligence causing death and the other is manslaughter. They are not in Bill C-10. Bill C-10 is dealing with intentional crimes. All I'm saying is that I would like to see Parliament turn its mind to being firm and fair. Fair would be a discretion for those two crimes.

I'm a realist. I'm not here to say to you to have discretion everywhere. That's where I was coming from.

[Myron Thompson, Conservative, Wild Rose, AB]

Thanks very much. I appreciate you people being here.

I'm going to ask four questions, and I hope to ask them quickly. There's a question for each one of you. If you just make a note of it, I'll go back to the first question and then we'll go from there.

To Professor Chartrand, you say that the legislation we're doing here to try to lock up more people is going to cause more jail time and is going to cost a lot more. Have you ever done any cost analysis of what crime costs when these people are left on the street and continue to commit crimes? Sometimes we can measure that in monetary things. The cost of crime should never be left out of any formula. Why is that not talked about by people like yourself?

Front door to back door--we know what happens when we go into the front door of a penitentiary and out the back door. You say they come out more dangerous. I would suggest to you, sir, that what happens inside the penitentiary should never be happening because of our lax laws. How in the world can you have a penitentiary where people are in debt because they don't pay their rent inside, or because they're drinking too much alcohol, or because drugs are overused, and they lay around an awful lot in these things? I've been to many of them and I've seen this. I think what takes place in that penitentiary could have a lot better effect on those coming out the back door than what we're doing today. You can comment on that.

Last is root causes. I don't even want to go there. Root causes is something we should all work on, but not through this committee. We're talking about people who have committed a crime, and now we have to deal with it. The root causes are something we all can engage in by some other method than through the justice committee.

To the police commission, I thank you so much for being here. I really appreciate hearing about the number of cases that have happened when they're on bail, probation, and parole. I understand that the authority you have as police officers for arresting without warrant when someone is obviously breaking parole does not exist. I'd like you to comment on how much effect you think that would have in curbing crime, as well as some of the sentencing that's taking place with Bill C-10.

Professor Lee, I really appreciate your charts. A lot of people, this committee included, don't seem to think that from 40 years ago there has been a significant increase in crime. I agree with you, sir. I'm so glad to see that chart; it is extremely significant. The silly decisions we've made over the years are a lot of the root cause for that thing going up.

They keep claiming alcohol is a root cause of crime. Well, I agree, but we're the society that said it's okay to keep bars open seven days a week and it's okay to keep them open till three o'clock in the morning. So they carry a bunch of knives or anything with them. “This is Canada; we have some freedoms we have to respect”, and all that nonsense. So we've asked for a lot of our own problems. I'd like your comment on that.

Mr. Stuesser, I too believe in the firm, fair, and fast—the three-F—system. We used to have it in the military. I thought that was one of the best systems. But I need a little more clarification. Are you suggesting that this Bill C-10 is okay, but we also need legislation for unintentional commissions of a crime? I think accidental shootings and self-defence are already covered in the code, but if that's not true, I'd like your comments on that.

Those are my questions, and if you take them in order, I'd like to hear your response.

[Réal Ménard, Bloc, Hochelaga, QC]

I'd like to understand your recommendation exactly. If I understand correctly, you're saying that Bill C-10 in its present form provides, for the offences you list on page 8, that, in the case of indictable offences committed with restricted weapons or for a gang, the system of escalating penalties applies. However, in cases where those two conditions aren't met, you're talking about a four-year sentence. You would like the new system of offences to apply in all cases where a firearm is used.

[Tony Cannavino]

If there's one problem that we've observed over the years, it's that plea bargaining, that is negotiations between the Crown prosecutor — which was a very well-paying livelihood for Mr. Lemay in his previous life — and the defence obviously considerably reduces the impact of the sentence, in terms of length of sentence. You heard the eloquent presentation by Ian Lee, who explained the statistics he had compiled on the effects of these minimum sentences, and on the reasons why we need them.

As you know, if we can find a way to reduce the crime rate or to prevent people from reoffending, we'll be the first to support that approach and to tell you to adopt that way of doing things rather than another. I was listening to Mr. Chartrand's presentation. Yes, indeed, we advocate prevention, therapeutic programs and all that. We understand that, and we're ardent promoters of that method, but, when that doesn't work, when the person, despite everything we've offered him, nevertheless decides to use a firearm, that's when we need bills like this one, Bill C-10.

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

It seems to me you're suggesting that even if it's a seven-month sentence, the person should be in for 21 months to be rehabilitated. But I'll read the documents on safe return. Thank you.

To Mr. Cannavino, on blue-skying, we asked the chief of police of Toronto about this. What we have seen recently in the statistics is a sharp increase in gang-related violent crime, particularly with handguns--homicides and so on. There's no real division of opinion on that. There's a sharp problem right now, particularly in urban centres.

You eloquently canvassed the whole issue that there shouldn't be any difference between the type of firearm.... But is there a further measure of gun control that you think might be necessary, once we're done with Bill C-10?

[Prof. Paul Chartrand, Professor, College of Law, University of Saskatchewan, As an Individual]

Thank you, Mr. Chairman.

My name is Paul Chartrand. I teach law in the College of Law at the University of Saskatchewan.

I thank the committee for inviting me. I am here at the invitation of the committee. I belong to no political party. I have never belonged to any political party. The views I will offer are based on my experience, which includes being involved in the production of some reports and recommendations on criminal justice policy, particularly pertaining to aboriginal peoples. I cite in particular my service as a commissioner on the Royal Commission on Aboriginal Peoples, and also more recently as a commissioner on Manitoba's Aboriginal Justice Implementation Commission.

I am here at your invitation and I view my participation here as a matter of my contribution to public service.

As legislators, you have a high duty and responsibility to protect society. Whatever can be done to make our community safer, including reducing the use of firearms, is a good thing and you ought to do it. We all deplore and denounce the use of firearms in the commission of crimes. However, the matter of sentencing and the matter of administration of criminal law is fraught with emotion and complexity.

We must recognize that there are no easy solutions to complex problems. In fact, I always advise my students to be very wary of those who offer simple solutions to complex problems. I can give you examples of the danger they pose to society.

I presume that all of us wish to legislate in such a way as to promote a just and tolerant Canada. Let me ask, then, with respect to Bill C-10, is minimum mandatory sentencing a legitimate means to address the problem? My answer is no.

A second question is, will minimum mandatory sentencing work? The answer again is no.

Let me elaborate in the short time I have. It is not a legitimate means for the following reasons. First, it is arguably contrary to the law of the Constitution. Second, it is demonstrably in conflict with Canada's obligations under international human rights treaties. I cite among others--and I will elaborate if there is sufficient time in the question period to follow--the International Convention on the Elimination of All Forms of Racial Discrimination with respect to aboriginal peoples.

Mandatory minimum sentencing is unprincipled. It clashes with the fundamental principles of our criminal justice system. In fact, mandatory sentencing is an oxymoron. After conviction, the process of sentencing seeks to address the degree of blameworthiness. If you have seven people committing the same offence, you are faced with potentially seven different degrees of blameworthiness. All that is removed by a minimum sentence.

A very quick example is taken from a case involving an aboriginal man who used a rifle and was subjected to one of these mandatory minimum sentences. He used his rifle in defending himself against a criminal gang in his community. He didn't like gangs, but he had a rifle--he belonged to a hunting community--and he faced the mandatory minimum.

Let me go on and emphasize why mandatory minimum sentences do not work, notwithstanding what has been proposed to you by Professor Ian Lee. When I say this, I'm relying mainly on the literature that I read and on my being briefed by Canada's and other places' top criminologists, lawyers, and practitioners who work in this area every day. I must say I'm not aware of the work of Professor Lee from the School of Business at Carleton in this regard.

Why will it not work? First, it will create a much more expensive system. True, it's a political easy fix because you don't need to attach a budget to this particular legislation, but it will cost a lot on the road. All the statistics point to that. It will be tremendously expensive, and if you ask questions later on on this, I will elaborate on why it has become more expensive. First of all, I think it costs roughly $80,000 a year to keep people in jail. Obviously, if you're going to put more people in jail, it will cost you a lot more. If you set a minimum, and if judges do try to ignore what I suggested, that it's an oxymoron, then they will take the minimum to be applicable to the best offender and all the sentences will go up, ergo the costs will increase. You cannot avoid that. It will be horrendously expensive.

My next point is that it will not work, because presumably you're trying to create a less dangerous society. An earlier speaker suggested that we need harsh sentences. We have a lot of experience in the use of harsh sentences. We can cut off their hands. We can jail them forever. We can use steel pincers to pull out the flesh and pour molten tar into the wounds, which are examples of the harsh punishment that has been meted out to offenders in the past. These are historical examples. If you want to be harsh, there are many ways of doing that very effectively, but it does not work. You create a more dangerous society.

Usually people are inclined to look at the people going into jail. As you will hear with these minimum sentences, they ought to go to jail; they have to go in. So you're looking at the front door and then you don't look at what goes on inside. Essentially, I suggest to you that you're telling people to go to hell. You want to ignore them because there the place is hell.

I submit there's no evidence to support the previous contention that you need longer sentences to allow for rehabilitation. That proposition is based on the assumption that there is rehabilitation. Instead of looking at the front door, at who goes into the jail, I invite you to go and have a look at the back door. Who comes out? Every day criminals are sentenced and come in the front door, but every day criminals come out the back door. If you think you're sending dangerous people to jail at the front door, think of the kind of people you're letting out the back door. Send a 20-year-old—

I ask you when you're contemplating enacting legislation like this, think about Canada and jailing Canadians. Think of a recipient of those kinds of sentences as your son, your grandson, or your niece. They're human beings. They will come out tougher criminals. In jail they will get sodomized. They will become heroin addicts. Those are the kinds of things that happen there. They will be harsher and tougher. Being tough on crime actually results in creating and manufacturing tougher criminals. It seems to me if society can live with the people who get out the back door, surely you can live with most of the ones who go in the front door.

Finally, I want to say that aboriginal people are incarcerated...in statistics that are disproportionately higher in comparison to other people.

This will create tremendous social disruption and problems, not only for aboriginal individuals, their families, and their communities, but for the provinces. In effect, the federal government will be off-loading a lot of the costs onto the provinces, particularly the western provinces, like Saskatchewan and Manitoba, that have very high aboriginal populations. I think there are statistics that suggest that something like over 500 aboriginal people were sentenced last year. If they were subjected to this mandatory minimum sentencing, you'd have 500. So multiply 500 times 80 and so on and you get the statistics.

I want to conclude my presentation by suggesting that these complex problems can only be fixed in a holistic way. Holistic is realistic, but it's very difficult. You have to attack the root causes of crime. These are not easy to sell politically or in 15-second sound bites. The evidence all shows us--and I've been briefed on this--that you can tell when a child is about seven years old whether that child is going to go to jail. And Indian people who become reserve residents have way more probability of going to jail than of going to university.

So the way to combat crime is to combat the root causes of crime: assist children, have children's benefits, assist families, have community services and recreation, and so on. I can give you statistics on that. The Manitoba Northern Fly-In Sports Camp that the RCMP conducted some years ago would be an example of that. But the federal government can't do it alone. You would have to work not only with the provinces but with the municipal governments as well.

It's very easy to just adopt an easy fix like minimum sentences, but they're neither legitimate nor do they work. I ask members of the committee not to adopt Bill C-10, because this kind of legislation will create not a more tolerant and just Canada; it will create a meaner and nastier Canada, and I wish that my little granddaughters would not live in a meaner and nastier Canada.

Thank you very much

[Prof. Lee Stuesser, Professor of Law, Robson, Hall, University of Manitoba, As an Individual]

Thank you, Mr. Chairman.

I want to first of all thank the committee for inviting me to appear this afternoon. It's my honour and privilege to do so.

I don't represent any association. I don't represent any lobby or interest group. I'm simply a law professor who has been teaching criminal law, evidence, and trial advocacy for the past 20 years. Hopefully, I can assist you with some of my experience.

I'd like to start with two fundamental principles in criminal law: clarity and fairness. The law has to be clear and it has to be fair. In my written submission to you, I point out that there are two problems with Bill C-10. I think there is a problem with clarity and a problem with fairness. I've provided two suggestions on how to make the law clearer and fairer.

First of all, I'd like to turn to the issue of clarity. Actually, it builds upon something the last speaker was talking about. In my view, Bill C-10, as it now stands, is unduly complex, and it will in fact be unworkable in practice. In fact, if Bill C-10 is put into law, you may well be creating a loophole for those who do use firearms in the commission of offences. That's my primary concern: the issue of firearms in the commission of offences. I think what you simply need to do is to simplify the law. Make it simple. Use the existing wordings in the Criminal Code.

I want to illustrate this with some examples. Let's assume we have an accused who robs a store. He has a shotgun, which isn't that unusual. Let's say the Crown can prove identification, which isn't that easy, but they can. Well, once they have identification, they also see that he has a prior record for violent offences using firearms. You'd think we'd now be triggering the second offence mandatory minimum of seven years. Will it apply? No. When you look at your triggering mechanism in Bill C-10, it requires that the weapon either be restricted or prohibited--a shotgun is neither--or that this person is a member of a criminal organization acting for the benefit of or at direction of the criminal organization. Quite frankly, good luck. That's very difficult to prove. In the absence of that, you have the residual, which means the four-year minimum. We can prove that he used the shotgun. We can see that. We have witnesses to that. We can prove identification. But this will not trigger the legislation.

Take another example. A woman is sexually assaulted at gunpoint. She's traumatized by it. When she's asked to describe the weapon, she has difficulty. She can't tell whether it's a handgun or a rifle or a shotgun or anything. She knows for darn sure that there was a gun and that she was sexually assaulted. We have DNA that shows the perpetrator. We have him. We can identify him. Will we trigger the second or third offence? Say, for instance, we see that he has prior offences for violence. Will it be triggered? No, it won't. She won't be able to tell us whether this is a prohibited or a restricted weapon. If she can't, you then have to try to prove that he was a member of a criminal organization doing a sexual assault for the benefit, direction, or association of the gang. Good luck, again. It's not going to happen.

Let's take a third one, a drive-by shooting. A person is shot. He was driving down the street, a car drove up, and someone shot him. We see that it was a .22 calibre. We have our forensics that can identify that. But can they identify that it's a .22 handgun? Or is it a .22 long rifle? If you can't prove that, you're not into the second or third strikes. You're back to the residual four-year, where we are now.

Here's the simple question I have for the members of the committee. If your intention is not to have those individuals punished with the second or third strike, then ignore what I have to say. But I would venture to say that your intention is that those people should be caught by the legislation the second or third time, and that's where I urge the committee to go back to simplicity.

In my written submission, I compare the wording in Bill C-10 with the existing wording. Isn't the concern firearm violence? Isn't that the fundamental concern? And if your answer to that is yes, then does it matter that the rapist or the robber used a handgun versus a long rifle? I think the answer is obvious—it's no.

Given this added complexity, I will tell you what crowns will do: they will not charge using your two or three strikes legislation; they will not. They will charge using the residual. Why? Because that is the course of least resistance.

You are giving me, a former defence counsel, an argument to raise in court with this legislation. You are giving me a means to negotiate out of two or three strikes with the Crown, because they're going to have real difficulty proving a criminal connection. My guy may well have been a gang member, but he was freelancing, and that means it doesn't apply.

So I urge the committee, there is nothing wrong with the existing wording. It has been around for over 10 years, since this Parliament passed the mandatory minimums for these intentional crimes, and I urge the committee to go back to simplicity. I think you will find that it will be workable. As drafted, the bill is, in my view, unduly complex, unnecessary, and, quite frankly, it will constitute a loophole.

I've got a second concern, the issue of making the law fairer. I don't care what anyone says—and you've no doubt been told this—mandatory minimum sentences are a blunt instrument. They remove discretion and they make all offenders subject to the same minimum. Some people are unfairly caught. Some people should not receive the mandatory minimum; they are caught. Some might say that's the price of justice, that's the price of using a firearm, but I think most countries who have introduced mandatory minimums have recognized that there needs to be some discretion.

When I look at the types of crimes where, in my view, people ought not to receive the mandatory minimum, there are two types of crimes committed. They are criminal negligence causing death and manslaughter. Both now have the four-year minimum—and, incidentally, they are not part of Bill C-10.

What I urge the committee to do is to consider discretion for those types of unintentional deaths arising from firearms. I want to give you two simple specific examples that occur on, I hate to say, a regular basis, but very routinely.

We've got the police association here. Let's deal with police officers, who have weapons. Let's assume we've got a police officer in a volatile standoff. The officer thinks he hears a gunshot. The officer panics and uses a weapon; he fires in return and kills someone. He ought not to have fired. He was mistaken; he panicked. He may well be charged, because we expect our police officers to be well trained and to be restrained in their use of firearms. He may well be charged with criminal negligence causing death, and he would then be subject to the four-year minimum sentence. I'm not sure what the views of the gentlemen to my right would be on that, but I can give you cases where this has indeed been the situation.

I give you another common situation from one of the first cases I was involved in when I was a young man. It dealt with a middle-aged woman. I remember the case well because it wasn't that often we had a truly innocent person, if you like, we were defending, so it stuck in my mind. She had blasted her husband away with a double-barrelled shotgun at close range with both barrels. It didn't look good. She was charged with murder. When we started to investigate, though, we found that the husband had been abusive. We found as well that he was a drinker, and we found that he loved his guns—and he had guns all over the place. He would routinely take those guns and threaten her and her family. She got so fed up one day, she picked up the shotgun—and she didn't have any idea if it was loaded or not—and pointed it at him and said, how do you like this? How do you like this? And bam, the gun went off because it had a hair-trigger. When the first barrel went, the second one discharged too. And she was devastated.

She was convicted of manslaughter. We got it reduced from murder, but she was convicted of manslaughter. At the end of the day, the sentencing judge gave her a suspended sentence. Members of the committee, that was a just and fair sentence for that woman.

The problem with criminal negligence and manslaughter charges is they are so broad, they catch people who unintentionally kill with firearms. Now, you might say, what does that have to do with Bill C-10? Well, if this committee or Parliament were to look at an exceptional discretion for criminal negligence and manslaughter offences, I would think it would show three things. First, it would show that Parliament has turned its mind to be firm but fair. It would recognize where the vast majority of fairness cases would arise. Second, it would provide a simple mechanism for people like the woman I represented to seek a just sentence. Right now, she would have grave difficulty doing so; she'd have to challenge the legislation under the charter or seek a constitutional exemption. And here's a third reason. It would show the distinction between unintentional and intentional crimes. Bill C-10 is concerned with intentional crimes.

Quite frankly, here's what my argument would be. If Parliament had a discretion for unintentional crimes, it would actually reinforce the point that when you use a firearm for an intentional crime—attempted murder, robbery, or whatever—Parliament has indicated there is no discretion. It would, if anything, make your mandatory minimum, in these types of crimes in Bill C-10, charter-proof.

I simply point that out to you. In my view, the vast majority of cases involving unintentional killings is where you have a disproportionate sentence.

Members of the committee, those are my concerns and my suggestions. I look forward to your questions.

Thank you for listening.

[Tony Cannavino, President, Canadian Police Association]

Thank you, Mr. Chair.

Mr. Chair, committee members, good afternoon.

The Canadian Police Association welcomes the opportunity to present our submissions to the Standing Committee on Justice and Human Rights with respect to Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms).

The CPA is the national voice for 54,700 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages as well as those working in our largest municipal cities, provincial police services, members of the RCMP, railway police and First Nations police associations.

The Canadian Police Association is acknowledged as a national voice for police personnel in the reform of the Canadian criminal justice system. Our goal is to work with elected officials from all parties, to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

Urban violence has been a significant concern for our association. For over a decade, police associations have been advocating reforms to our justice system in Canada, and in particular we've called for changes to bolster the sentencing, detention, and parole of violent offenders.

At our 2004 annual general meeting, CPA delegates unanimously adopted a resolution that includes a call for federal legislation to be introduced to ensure tougher and more adequate mandatory prison sentences for individuals involved in firearm-related crime.

Repeat offenders are a serious problem. There's been considerable debate at this committee about the use of minimum sentences and the frequency of repeat offenders. Make no mistake about it: repeat offenders are a serious problem. Police understand this intuitively, as we deal with these frequent flyers on a routine basis.

Statistics released by the Toronto police homicide squad for 2005 demonstrate this point. Among the 32 people facing murder or manslaughter charges for homicide in 2006, 14 were on bail at the time of the offence, 13 were on probation, and 17 were subject to firearms prohibition orders. The revolving-door justice system is failing to prevent further criminal activity by these repeat violent offenders.

Gun violence requires a non-partisan approach. Support for tougher measures to thwart gun violence transcends party lines. During the last federal election, three major parties promised tougher sentences for crimes involving firearms. The NDP platform promised to “Increase the mandatory minimum penalty for possession, sale and importation of illegal arms such as hand guns, assault rifles and automatic weapons”, and “Add mandatory minimum sentences to other weapons offences”, including a “four-year minimum sentence on all weapon offences, such as possession of a concealed weapons'”.

Former Prime Minister Martin promised to toughen penalties “by re-introducing legislation to crack down on violent crimes and gang violence, by doubling the mandatory minimum sentences for key gun crimes”. Former Liberal Justice Minister Irwin Cotler introduced Bill C-82 in November 2005 to address gun violence. Bill C-82 would include increasing certain minimum penalties relating to smuggling, trafficking in, and possession of firearms and other weapons, and creating two new offences, breaking and entering to steal a firearm and robbery to steal a firearm.

When Bill C-10 was introduced this spring, Premier McGuinty was quoted as stating that the bill will “make a real difference when it comes to promoting safety for our families and our communities”. Last year, Conservative MP Daryl Kramp introduced a private member's bill, Bill C-215, that would require that a sentence for commission of certain serious offences be supplemented if a firearm is used in the commission of that offence.

A justice department survey conducted in March 2005 by Decima Research confirmed that an “overwhelming majority” of Canadians support mandatory minimum jail terms for gun crimes such as robbery with a firearm and criminal negligence causing death with a firearm. According to CanWest news, the poll of 2,343 Canadians revealed that “Support for mandatory jail terms for robbery with a firearm was as high as 82%, compared with 14% who opposed the prospect”.

Similarly, an Ipsos Reid CanWest Global poll conducted December 30, 2005, to January 2, 2006, of 8,336 Canadian voters found that 73% of the respondents supported changing the current laws so that being convicted of committing a gun crime would carry a mandatory 10-year prison sentence with no eligibility for parole or early release.

Clearly, there is broad political and public support for tougher measures to deal with firearm crimes. We urge Parliament to move swiftly to address the areas of consensus as quickly as possible. The CPA supports in principle the measures contained within Bill C-10 with necessary modifications.

On amendments, although the CPA supports the vast majority of proposals contained within Bill C-10, we do have one significant area of concern. It relates to the proposal dealing with the use of firearms in the commission of attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery, and extortion.

Bill C-10 contemplates a tiered response. Offenders who commit these crimes, whether with a restricted or a prohibited firearm or any firearm in connection with a criminal organization, are subject to escalating penalties—five years for a first offence, seven years for a second offence, and ten years for a third or subsequent offence. Conversely, if the firearm is not used in connection with a criminal organization and the weapon is not restricted or prohibited, the mandatory minimum sentence is only four years, regardless of whether it is a second, third, or subsequent offence.

We find the different treatment for long guns to be misguided, and we are at a loss to understand the rationale for distinguishing the penalty on the basis of the class of firearm that is issued by a person in the commission of a very serious crime. Police officers routinely discover these weapons in firearms seizures, clandestine drug labs, and marijuana grow-ops. Will shotguns and rifles become the weapons of choice for repeat violent offenders? In many situations, a rifle or shotgun is a far more lethal threat in the hands of a criminal than a handgun.

For example, high-powered rifles are capable of shooting through body armour and other protective equipment. Shotguns can be extremely powerful weapons when used at short range. A tragic example is the murder of Constable Valerie Gignac of Laval last fall, who was shot through a wall with a high-powered rifle. Of the 13 police officers killed with firearms in the past decade, only three were murdered with handguns; 77% were murdered with long guns, and it's unlikely that any of the offenders in these cases would have met the threshold for participation or membership in a criminal organization.

This latter threshold of connection with a criminal organization also presents an additional hurdle for prosecutors to prove in order to obtain the higher mandatory penalty. While we applaud measures to deal proactively with criminal organizations, we contend that any person who uses any firearm in the commission of an offence should receive the full mandatory minimum penalty available, and particularly repeat offenders.

The recent tragedy at Dawson College in Montreal has reinforced the need to strengthen Canada's control over civilian firearms possession. To our knowledge, no new firearms have been added to the restricted or prohibited categories in Canada for over a decade, yet many new firearms have been designed that are being offered for sale in Canada and would arguably meet existing criteria. As a consequence, some weapons are being legally sold in Canada despite the fact that they meet existing criteria for restricted or prohibited status and present significant concerns for public safety.

Retailers understand and exploit these loopholes, as demonstrated by the website for Wolverine Supplies in Manitoba. You'll find that in our brief. We submit that further steps must be taken to close the loopholes by updating and maintaining the restricted and prohibited firearms classifications.

In conclusion, I'll say that one of the concerns of police officers across the country is to stop the violence. The solution to this begins with bringing an end to Canada's revolving door justice system. Canada's police officers have lost confidence in a system that sees violent offenders regularly return to the streets. We need to restore meaningful consequences and deterrence in our justice system, which begins with stiffer sentences, real jail time and tougher parole eligibility policies for violent offenders. We need stiffer minimum sentences for offenders who commit crimes with guns, or any type of weapon.

Bill C-10 provides a positive component in an integrated strategy to address current shortfalls, specifically pertaining to the concern with gun violence. We believe that it can provide an effective deterrent against violent gun crimes, and we fully endorse the principle of creating tougher mandatory minimum penalties for the commission of serious offences involving the use of a firearm.

We thank you for your attention and we welcome your questions.

Thank you.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. In our agenda, we're still on Bill C-10, an Act to amend the Criminal Code (minimum penalties for offences involving firearms).

We have quite an august group of witnesses here today. Many have undoubtedly testified before the committee. It's good to see you all.

From the Canadian Police Association, we have Tony Cannavino, and you have Mr. David Griffin with you. Hello.

As individuals, we have Mr. Ian Lee of Carleton University; Lee Stuesser of Robson Hall, University of Manitoba; and Paul Chartrand, professor in the College of Law, University of Saskatchewan. Thank you all for being here.

I know, Professor Lee, that you wanted—and maybe it's a good idea—to proceed with the presentation you have. You have a PowerPoint presentation.

If you would begin, Professor, that would be fine.

[Fiona Sampson]

I think the scenario you described is very real. It does in fact happen. Absolutely.

This is why LEAF takes the position that getting guns out of circulation and taking preventative measures, such as endorsing gun control, are really much more effective in terms of promoting women's equality than measures, such as Bill C-10, that actually don't promote women's equality and the equality of other disadvantaged persons.