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.

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

Thank you.

I have a question for each of our witnesses, the first one to Mr. Rudin. It's a bit of a lob, but I'm sure he'll deal with it well.

Looking at the Gladue decision and looking at the sociological circumstances involving aboriginal offenders, Bill C-10 is starting to look like some kind of a scholarship program to a boarding school or crime college, if it goes into effect. I'll just put it that way and I'll leave that with you. You can think about it.

Then to Mr. Biggar, I had always understood the court's view that the charter section providing for a right to counsel—certainly it wasn't a right to legal aid, but a right to counsel. I always thought it was the right to be able to go and get yourself counsel, as opposed to the right to actually have the counsel there. Could you update us on the status of that? I think you'll be pretty familiar with it. If that right to counsel has evolved into close to having a right to have legal aid, then this is always going to be a cost component of federal legislation, especially where it involves potential incarceration.

To Ms. Sampson, you've described what I would call “adverse effect” discrimination against women, imported by this proposed legislation. There was another component that was mentioned to me, and it involves a woman—unfortunately, there are probably a lot of them out there who are repeatedly subjected to intimidation by a spouse or someone in that circumstance—in a circumstance where she might pick up his gun and say, “Not anymore”. Then, in the event the court would find that the use, of course, of that force was excessive, she—the hypothetical “she”—could end up much worse off than he. Perhaps you could comment on that.

We'll go to Mr. Rudin.

[Fiona Sampson]

You asked what Bill C-10 does. From LEAF's perspective, what Bill C-10 does is discriminate. That's what we see is the effect of Bill C-10.

I understand that the goal is to reduce violent crime, and that's a laudable goal, but we would argue that these mandatory minimum sentences don't achieve that end for the reasons I have already outlined.

In terms of deterrent effect, I think all the evidence we have supports the proposition that there is little evidence to support that mandatory minimum sentences have any deterrent effect. I think maybe it's helpful to think about deterrence in a couple of different ways to distinguish between certainty of conviction and severity of punishment, and that maybe helps to clarify why mandatory minimum sentences and the severity of punishment, as we understand it, doesn't have any effect in terms of preventing or diminishing crime.

[Fiona Sampson]

Okay. Thank you. I keep pitching it, hoping you will.

We have a lot of the evidence in there in terms of the way in which Bill C-10 targets these already disadvantaged groups and how it perpetuates the disadvantage experienced by these vulnerable groups. That meets the fundamental criteria of section 15.

[Fiona Sampson]

From LEAF's perspective, we would say that Bill C-10 is vulnerable to a section 15 challenge because of its discriminatory effect and the discriminatory impact.

It would be a challenge in terms of the court's most recent interpretation of section 15 to make a successful argument, so we think it's definitely vulnerable to a challenge.

[Fiona Sampson]

I think you're right to understand that it does nothing to decrease women's vulnerability and it does nothing to increase their equality. It's actually 85% of men who own guns and 30% of women who are the victims of gun violence. Those numbers are a real concern to us, but mandatory minimum sentences on firearms like those proposed through Bill C-10 just do nothing to address that inequality and the oppression that women experience through the connection between violence and guns and masculinity.

In terms of concrete examples of women's disadvantages associated with Bill C-10, women aren't just white, able-bodied, non-racialized women; women are members of other communities. It is primarily men who are gun offenders, and when those men are targeted by these provisions, it disadvantages the whole community, so it disadvantages the women in those communities as well.

[George Biggar]

As I said at the outset, every change to the justice system is an increased pressure on all of the system, and that includes legal aid. Some of these changes we can estimate better than others. For example, we've done estimates on the likely cost of legal aid due to increasing the number of police officers on the street by 1,000, as the government has done. We did an estimate on the cost effects of Bill C-9, the bill that deals with alternatives to incarceration, and we have done the estimate I presented this afternoon in relation to the cost of Bill C-10. What we in general are seeking from the federal government, since criminal law is a federal responsibility and that is in fact recognized by the federal government through the federal-provincial contribution agreement, is that the government, through the budget process, increase the funding available to the legal aid plans across the country in order that they may effectively respond to the increased—

[Réal Ménard, Bloc, Hochelaga, QC]

Of course, if minimum mandatory sentences were not consistently applied, people would say that they are not true mandatory minimum sentences. Whatever the case may be, few studies point to any deterrent effect these types of sentences might have. So deterrence is not really an argument which would convince us of the effectiveness of mandatory minimum sentences.

My question is for Mr. Bigger from Legal Aid Ontario. So what you are basically saying is that mandatory minimum sentences might lead to more trials and that it might affect the provinces, yours in particular, which is, incidentally, the wealthiest in Canada, at least in terms of per capita revenue.

What would you like to say to the federal government as far as the financial implications of Bill C-10 are concerned, if it was adopted? Of course, that's not a given. The more testimonies we hear, the more we should worry. Minority governments have many virtues, including the virtue of allowing the opposition to work harder to improve the government. It goes without saying that for us, the work is never ending, and we end our days completely exhausted because the task is so huge.

So what type of financial support should the federal government provide if Bill C-10 was passed?

[Jonathan Rudin]

Thank you.

Again, I apologize for my lateness. I also apologize on behalf of Marisha Roman, our vice-president, who was with me last month in Ottawa. She very much wanted to be here today as well, but she came down with the flu this morning, had to leave work, and was not able to make it.

We are very pleased to be appearing here again before the Standing Committee on Justice and Human Rights. Since our last appearance before you was just a month ago, we'll dispense with the background information on our organization, as we trust it's relatively fresh in your mind. We first want to thank the members of the committee for its consideration of our submissions regarding Bill C-9.

We're here today to discuss Bill C-10, a bill that amends the Criminal Code. Prior to commenting specifically on these amendments, we feel it's important to address what is, for us, the disturbing trend of the increasing reliance on minimum sentences in the Criminal Code.

This trend did not begin with the current government. Bill C-2, passed in the last Parliament, added minimum sentences to 11 sexual offences. In some cases, the minimum sentences were as low as 14 days. It appears that often the only explanation for the imposition of a minimum sentence is to prevent judges from considering a conditional sentence. Minimum sentences of 14 to 90 days cannot seriously be justified for their ability to deter crime or to lead to a change in behaviour of offenders while incarcerated.

In our discussion before the justice committee last month, we spoke about the ability that judges have to craft conditional sentences that can address the root causes of offending behaviour without sacrificing community safety. In fact, a well-crafted conditional sentence will lead to increased community safety. Unfortunately, increased reliance on minimum sentences means there is less room for conditional sentences.

We would like to raise four specific concerns with respect to Bill C-10 and make one suggested amendment. Our concerns are: one, we believe the manner in which the bill deals with hybrid offences is unconstitutional; two, too many minimum sentences start with penitentiary terms; three, there is no reason to believe that minimum sentences deter crime; and four, the bill will increase aboriginal overrepresentation in prison. Our suggested amendment is that the bill allow for a judge to avoid the imposition of a minimum sentence in exceptional circumstances.

We will start with our concerns.

At our last appearance before the committee, we noted that one of the problems with Bill C-9 was that it gave the Crown the ability to decide whether an offender could receive a conditional sentence, based on whether the Crown proceeded summarily or by indictment. This problem is even more acute in Bill C-10. A number of offences in Bill C-10 are hybrid offences. There are no minimums if the Crown proceeds summarily. There are minimums if the Crown proceeds by indictment. In some cases, these minimums start at three years' imprisonment.

For example, a first-time offender charged with unauthorized possession of a prohibited or restricted weapon that is loaded or near ammunition will, if the Crown proceeds summarily, have all sentencing options available. On the other hand, if the Crown, in its sole discretion, chooses to prosecute by indictment, the minimum sentence is three years' imprisonment.

Such an arrangement places a great deal of unchecked power in the hands of the Crown. It also raises very serious concerns that the section violates the protection against cruel and unusual punishment found in the Charter of Rights and Freedoms. We will participate in any constitutional challenge against these provisions of Bill C-10.

Secondly, we are concerned by the increased number of minimum sentences that start at three years' imprisonment. While there are some individuals who, for public safety, must be sentenced to penitentiary time, this bill casts the net too wide. Members of this committee should be under no illusion that a three-year sentence will lead to positive change in the lives of offenders. Information we have received from Correctional Service Canada in Ontario indicates that individuals sentenced to two- to three-year sentences will receive no substantive programming at all in penitentiary prior to their release.

This bill will result in some individuals with little or no prior involvement with the criminal justice system going directly to the penitentiary. Being incarcerated with the most dangerous offenders in Canada will give these people the opportunity to learn new skills, but not, unfortunately, the skills we would want them to learn.

We have to be realistic about what happens to people when they go to penitentiary. In most cases, they come out worse than when they went in.

Third, at the heart of this bill is the belief that minimum sentences deter people from crime. Since much of this bill is concerned with increasing the minimum sentences for offences where minimum sentences already exist, the assumption must be that higher minimum sentences deter people even more. The fundamental problem with this theory is that there is no evidence to support it. Studies by the eminent British criminologists Andrew Ashworth and Andrew von Hirsch both concluded that deterrence in the criminal justice system comes from the probability of detection rather than consideration of potential punishment.

The penalty for first degree murder is life imprisonment without parole for 25 years, yet despite this most severe mandatory minimum sentence, gun violence and gun death were quite prominent last year. If a 25-year mandatory minimum did not deter the most serious of gun crimes, why should we expect that shorter minimums would accomplish the task?

Our final concern with the bill relates to aboriginal overrepresentation. It must always be kept in mind that reliance on deterrence as a theory for punishment has a significant impact on aboriginal people. As we noted last month, despite making up only 3% of the Canadian population, aboriginal people comprise 22% of those in Canadian prisons. Aboriginal people know better than anyone else that doing the crime means doing the time, yet rates of aboriginal over-incarceration continue to rise. In large part, this is because much of aboriginal offending is not calculated organized crime, but rather an unthinking response to immediate pressures. Addictions, interpersonal violence, a sense of hopelessness, and the legacy of government practices such as residential school and mass adoptions all play a large role in explaining why aboriginal people commit crime. This does not excuse the behaviour, but we need to understand that the threat of minimum sentences will do nothing to address the root causes of aboriginal offending. It will merely lead to more aboriginal people being sent to jail for longer and longer periods of time.

Why should Canadians care that our jails are becoming increasingly the preserve of aboriginal people? After all, if aboriginal people commit crimes, why should they be exempt from jail, the most serious sanction the criminal justice system provides?

To answer these questions it's helpful to return again to the decision of the Supreme Court of Canada in Gladue. When discussing aboriginal overrepresentation, the court said:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

Aboriginal overrepresentation speaks to the failure of the criminal justice system to address the root causes of aboriginal offending. The result of paragraph 718.2(e) and the Gladue decision has not been that aboriginal people have stopped going to jail.

Both paragraph 718.2(e) and Gladue speak of the need for restraint in the use of incarceration for everyone. In fact, it has been non-aboriginal people who have been the primary beneficiaries of these initiatives. A study by Julian Roberts and Ron Melchers showed that from 1997 to 2001 the rate of aboriginal incarceration rose by 3% while the rate of non-aboriginal incarceration decreased by 27%. Similar results have been found in examining the impact of sentencing changes in the Youth Criminal Justice Act. Despite specific admonitions in legislation, the judges need to look for alternatives for aboriginal offenders. It is non-aboriginal people who are seeing the greatest decline in incarceration rates.

Please rest assured that we are not urging that more non-aboriginal people be jailed, but it is vital that you be aware that the impact of moves to make the criminal justice system more punitive will fall disproportionately on aboriginal people.

Jail has proven itself to be singularly incapable of resolving the social problems that are at the root of aboriginal offending. More jail will be similarly ineffective.

These concerns lead to our proposed amendments to the legislation. We suggest that the bill give judges an option to not impose a minimum sentence in exceptional circumstances. Such a provision will go a long way to meeting objections that the law is unconstitutional and would allow judges to consider other sentencing provisions, such as contained in paragraph 718.2(e) of the code, in situations where to impose a minimum sentence would be clearly unjust in the circumstances.

For almost 20 years, royal commissions, judicial inquiries, parliamentary committees, and decisions at all levels of courts in Canada have urged that the problems of aboriginal overrepresentation be addressed. For every small step forward, we confront great obstacles pushing us back. Sadly, Bill C-10 is another example of a serious step back.

We urge this committee to move away from increasing reliance on minimum sentences. If we are serious about wanting to make our communities safer, we need to do more than lock people up. We need to ensure that there are programs in place in the community to address the root causes of criminal behaviour. We need to have programs in place in correctional facilities to do the same.

Thank you very much.

[Fiona Sampson, Director of litigation, Women's Legal Education and Action Fund]

Okay, thank you.

Hello. Bonjour.

My name is Fiona Sampson. I am the director of litigation at LEAF, the Women's Legal Education and Action Fund.

I'm here today to talk to you, I understand, for ten short minutes. I have three important points that I want to make, so I'm going to get right into it.

I want to start by telling you a little bit about LEAF and then move into a summary of the three main reasons why LEAF is opposed to the passing of Bill C-10.

LEAF, the Women's Legal Education and Action Fund, is a national non-profit organization that's dedicated to the advancement of women's equality rights in Canada. Primarily, we do that through using section 15 of the charter and the equality guarantees that are included in section 15 of the charter.

Fundamental to our mandate is the understanding, endorsed by the Supreme Court of Canada, that section 15 obligates the federal government both to protect the guaranteed rights against discrimination and to equality found in section 15 and to promote those rights.

Moving to the three main reasons why LEAF is opposed to the introduction and passing of Bill C-10, which are actually outlined in submissions we have forwarded to the justice committee, and I understand they probably aren't before you because they haven't been translated yet, but they are something for you to look forward to—they are coming your way—the first reason LEAF is opposed to Bill C-10 is that Bill C-10 does not reduce violence against women. If the point of Bill C-10 is to reduce violence, it doesn't achieve that with respect to women.

Women experience violence because of their unequal social, economic, and political status in Canada, a status that results in their objectification, their disempowerment, their devaluation, all of which results in the status of second-class citizens, which leaves us vulnerable to violence. That's the cause of violence against women. Bill C-10 and mandatory minimum sentences relating to firearms do nothing to reduce that source of violence against women.

Certainly LEAF supports the reduction of violence and the reduction of crime, but what happens with Bill C-10 and with mandatory minimum sentences attached to firearms is that they come too late to be of any real help to women. They're imposed after the fact. They do nothing to prevent violence, and they come at a time when women have already experienced the violence, so they're really of no value.

Definitely women and LEAF recognize the violence that's associated with guns, and we oppose it. There is an intrinsic link between gun violence and masculinity and violence against women, and that's apparent when you just look at the statistics: 85% of guns in Canada are owned by men and 30% of gun victims in Canada are women. That's something that concerns and distresses LEAF, and LEAF supports gun control to address that concern, and we support measures that get guns off the streets. But having mandatory minimum sentences attached to firearms doesn't address that problem.

Our second main point relating to our opposition to Bill C-10 primarily relates to the disadvantage that's associated with Bill C-10 and that we predict will be felt because of the implementation of Bill C-10.

Bill C-10 is a classic example of the failure of the federal government, were it to pass, to actually protect and promote equality rights, the obligation the Supreme Court has found the federal government has under section 15 of the charter.

What really happens with something like Bill C-10 and the imposition of mandatory minimum sentences attached to firearms is that it targets already disadvantaged groups. If I can draw your attention to.... Well, you don't have the submissions yet, but you will soon. The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System found that black people are already overrepresented among prisoners with weapons possession charges, so we know that with the targeting of firearms crimes by attaching mandatory minimums to those crimes in particular, they will affect black persons disproportionately.

They will also affect aboriginal people disproportionately. We already know that aboriginal people are disproportionately represented in the criminal justice system and in prisons, so they will be further disadvantaged if Bill C-10 is passed, particularly the section of Bill C-10 that relates to the attachment of mandatory minimums to persons who have committed previous offences. If you go to LEAF's submission, footnote 18, we have a whole list of primary and secondary sources available to you to support that. So the evidence is there.

Sometimes proponents of mandatory minimum sentences understand it to be a form of equality, and on one level it can be understood to be a form of equality. It's what we call formal equality; it applies equally to all persons. Another example of formal equality can be seen in a situation where you have a building, and the building has been designed so it's only accessible by stairs. The architects of that design might say that it's equally accessible to everybody, that anyone can get in, that nobody is prevented. There's no sign that says certain groups are excluded. But if you're in a wheelchair, you're essentially excluded. So it looks like it's available to everybody, but in effect it's not.

With mandatory minimum sentences, it's a similar theory you can apply. It looks as if it's applicable to everybody, and it looks as if it's fair, but actually, in effect, what happens is that because it's targeting individuals who are already predisposed to disadvantage, who are already over-criminalized, it results in further disadvantage and, LEAF would argue, discrimination. So that's a problem.

The other reason it can be understood to be inequitable rather than equitable is the pre-existing racism that we know informs and characterizes the criminal justice system in Canada. Every level of court, royal commission, justice inquiry, independent research, and academic research--we have it all--provides evidence that the criminal justice system in Canada is characterized by racism, and that gets perpetuated by mandatory minimum sentences attached to firearms. So that's another problem, and that's another reason why LEAF is opposed to the introduction of Bill C-10.

Really, the problem with Bill C-10 is that it does nothing to promote or protect equality. It only perpetuates disadvantage and inequality, and it really targets and individualizes the problem, rather than addressing the social causes of the problem.

This is the third point that LEAF would like to make in terms of our opposition to Bill C-10. Really, what LEAF identifies as much more preferable to the punitive measures attached to Bill C-10 are preventative measures and looking at the social causes of violence and crime and firearm crimes, in particular. In particular, what we would support are measures that provide for community development and increased education, increased employment opportunities, and improved community development--programs that would promote opportunities for people who are already disadvantaged.

They're definitely long-term solutions. They're definitely not quick fixes, and they're not easy sells. They don't win votes the same way a quick fix like mandatory minimum sentences attached to firearms might sell votes. But they're really much more effective, they're much more long term, and they actually promote and protect equality for disadvantaged persons. So that's why LEAF supports that approach rather than the approach of punitive measures attached through mandatory minimum sentences.

In closing, I'd just like to read a quote by Helene Dumont. It's from her article in the 2001 Osgoode Hall Law Journal, and it really captures LEAF's position on Bill C-10. This is on the cover of our submission, so you'll get a chance to enjoy it for yourself. Helene Dumont writes:

How can our criminal laws better reflect the public's concern for safety, while promoting their desire for a democratic society based on peace, liberty, tolerance and justice? To accomplish this goal, legislators and the Canadian public as a whole, should try to apply more reason than fear in developing criminal law-infrastructure for safety. They must recognize the symbolic and political power of criminal laws, and determine the effectiveness of each punitive measure in terms of securing personal and public safety. Finally, legislators must always choose the solutions that will result in a peaceful, free, tolerant, and just society.

So subject to any questions you might have, those are our submissions.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you for being here.

I'm speaking mostly to Mr. Rady, and anybody else can join in.

Right off the bat, I want to remind Mr. Rady that it's true that the extra police in New York created quite a reduction in crime, but behind that was the broken windows theory. There was a decision made by the authorities and legislators that if you break a window, you go to jail; if you put graffiti on the wall, you'll be picked up and go to jail. That required more policing, the two worked pretty well hand-in-hand, and it's a very safe place to be. We forget about the fact that there was a decision made in regard to what to do.

Regarding root causes, I'll tell you that we've had lots of discussions and we hear an awful lot about this. When I was first elected in 1993, I sat down with Allan Rock, and we hit it off pretty good for quite a while. We used to talk a lot about root causes.

Yes, I agree that the root causes need to be addressed. We used to make our lists. I was sitting here today after you made your presentation about root causes, and you talked about poverty. Then I remembered my grandfather telling me that the Roaring Twenties was an awful era for crime, and yet the Dirty Thirties really tamed down. If it was poverty, there was a whole lot less crime than during the Roaring Twenties. Whether that has any bearing on the conversation, I don't know.

Then we talked about Hollywood and violence in film and the WWF—my God, have you watched that ultimate fighting on TV lately? It's violent. In all of these things, maybe there's a cause.

We know that drugs exist. I've been told over and over again that the population in the penitentiaries would go way down had it not been for alcohol. Yet we've had decisions that our bars should be open seven days a week instead of only six, and that they should stay open until three or four in the morning instead of closing at eleven or twelve in the evening. All of these decisions are root causes.

Child pornography is rampant out there. It poisons a sick brain even further. It causes them to act out their fantasies, and drastic things happen. It's a root cause.

Yet every time you try to do something about it, you get different decisions in courts that affect that effort, such as the John Sharpe decision. It had quite an impact, and I honestly believe that we tried hard with the Liberals to do something about child pornography. That decision made it practically impossible to move on this.

Can you imagine what you are going to do about alcohol? Bring back prohibition? That doesn't work, we've been told one hundred million times. Always another root cause that's hard to deal with.

When you go through all the root causes...I can't for the life of me figure out one cause that justifies any human being picking up a gun to endanger, threaten, or hurt the life of a citizen in this country. I cannot find one root cause. Yet we put an emphasis on how we have to do deal with root causes.

Mr. Trudell mentioned that things are decided for political reasons, and I would suggest a lot of these are. All of us stood on the platform in January and we said we've got to do something about crime and these guns; we have to do this, and we're going to do so. Lo and behold, we've been elected, and we're here now trying to do something about it. Because I can't find any root or justified cause to pick up a gun and hurt people, we have to create some legislation to deal with those who choose to do so.

Thus comes Bill C-10—I have not heard any other solution that makes any more sense to me—because now we have legislation dealing with what I know is a root cause, which is the criminal. Lo and behold, criminals are really a big part of the root cause of crime.

Let's deal with them, which we have to do as legislators.

But to talk about it in terms of, “We'll have to deal with root causes”, my goodness, I could give you a whole list. We tried to do that. It doesn't work. We've tried to protect the victims when it comes to pornography, when it comes to the rights of expression, and when it comes to the freedom of being able to run a bar and put on TV what you want to and listen to hard rock music whenever you want. We know that's been a cause.

I think we're really barking up the wrong tree about that, because I just can't find anything that justifies picking up a gun and hurting people.

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

My question is for Mr. Trudell and Mr. Rady, or for Ms. Beare. I will begin by making a brief preamble to help you understand where I am coming from.

First, you compared Ontario's legal aid system to a Cadillac, and I can confirm this. It's absolutely true, if I compare Ontario with the situation I am familiar with in Quebec. That's a problem. In Quebec, we have fixed mandates, whereas here, lawyers earn an hourly rate in what is called a certificate system. Further, more guilty pleas are entered in Quebec. There are fewer here in Ontario because lawyers are paid differently. Perhaps that explains the deficit. In any case, that's their problem.

Ms. Beare, I would like to hear you address an issue which intrigues me. You completely reject Bill C-10. However, I want to explain something to you. As is the case with Mr. Trudell, I have been working in the field for 33 years. In fact, I am still a lawyer, and I still have a lawyer's office. I therefore still work in this profession.

Just imagine: some of our citizens, after having killed a moose outside of the official hunting season, and after receiving a $1,500 fine which they are unable to pay, might spend up to three months in jail. Furthermore, if they do not pay their federal income taxes, and the fine becomes due, since they are being prosecuted and cannot afford to pay the fine, they are jailed because they have not paid their taxes.

But today, the only thing we are trying to achieve is to protect individuals by simply amending the Criminal Code. So I would like to know what bothers you so much to the point where you reject the bill.

Here is my second question. We also represent many women who have been beaten by their spouses. Are we to say to women that we try to adopt a bill to protect them or, at least, to mitigate the problem? If you tell me today that you will reject this bill, what will I say to women's groups which I met throughout the summer and who told me that we must become more forceful if we are to address this problem, which exists in Quebec's system?

I would like to hear you respond to these two questions.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

The most conclusive study on mandatory minimum sentences was conducted for the Solicitor General of Canada, by Mr. Crutcher and Mr. Tabor. These studies are very clear: mandatory minimum sentences do not act as deterrent, nor do they have an incidence when it comes to reoffending. There is no doubt about this. There is a whole host of studies demonstrating that they do not work.

This bill is ideologically based and attempts to give a false sense of security. This is why, unfortunately for some, the opposition parties are likely to do what they have to do by voting against this bill at committee stage. If you'd like, Mr. Petit, I'd be willing to bet you a large beer.

Now let's come back to organized crime and Bill C-95, which has become Bill C-24. I'd really like you to take your time and tell us... First, your appraisal of the mega trials is interesting. In my opinion, an offence under sections 466 and 467 of the Criminal Code should have been established. Indeed, during the 1990s, the Department of Justice thought it could break up organized crime networks by relying on the conspiracy provisions. I remember having discussed this with senior officials who were convinced networks could be pulled apart simply by virtue of the conspiracy provisions.

I didn't agree; I really thought the notion of a gang needed to be defined, because the existing definition wasn't always functional. Initially, a gang was five people who committed five offences over five years. Then, a parliamentary committee suggested three. Warrants for wiretapping were extended. The whole process was enhanced. This meant that the major organized crime networks were able to be broken up, not as a result of mandatory minimum sentences, but rather, because law enforcement was given the tools it needed to gather evidence, including wiretapping, which is the best way to dismantle organized crime. As a result of the decision in Stinchcombe, it became possible to bring people before the courts. This decision made complete disclosure of the evidence mandatory. Initially, people weren't happy about this. Eventually, people learned to deal with it.

Having said this, Ms. Beare, I would like you to say more about your fears concerning gangsterism and its effects on Bill C-10, which you referred to at the start of your presentation.

I'll then have a short question for the Canadian Council of Criminal Defence Lawyers.

[Andy Rady]

I believe you are reading the section the right way. Some parts of Bill C-10 refer to firearms and others refer to restricted and controlled weapons. There it refers to restricted and controlled weapons, not firearms per se, so that does in fact mean that if a person robs a corner store using a .30-.30 rifle, which he might have a licence for, he would get a four-year minimum, but if he went in with a handgun he would get a five-year minimum sentence. I would think from the point of view of the victim looking down the business end of that weapon, they wouldn't distinguish between what kind of a firearm it was, but Bill C-10 does seem to distinguish between those.

[Andy Rady]

I was going to speak much more quickly, but I'll speak slowly so that people understand.

I'm a provincial director, as well, of the Criminal Lawyers' Association. This is an association of just over 1,000 criminal lawyers from the province of Ontario. I'm the representative of the Criminal Lawyers' Association to the Canadian Council of Criminal Defence Lawyers, and as such I'm a director of the CCCDL. The Criminal Lawyers' Association of Ontario has also submitted its own brief to this committee and I commend it to you.

I've been practising criminal defence law for 25 years in the city of London, and I have appeared at all levels of court throughout Ontario. My perspective here today is that of someone who has the knowledge of criminal law as practised in this province. I've represented persons charged—sometimes acquitted, sometimes convicted—with crimes involving guns, and any insights I have come from that point of view.

I obviously adopt what Mr. Trudell has said, but in my own capacity here I've looked at the legislation and there are a few points I'd like to make and a few questions I'd like to ask. That's what criminal defence lawyers tend to do: they ask questions. My first question is, why? Why this legislation? What is it hoping to accomplish?

Well, at first blush, what it's hoping to accomplish is to get tough on serious crime. That is the phrase we've heard many times over the past little while. But does it do that? Let's look at this in a deeper way.

Why has gun crime increased, if it in fact has? Why is gun crime a problem that needs to be addressed? Will this legislation answer the question as to why? I submit to you that it does not.

I represent people who are charged with gun crime, and I look across at them, sometimes through the bars of a jail cell, sometimes across my desk, and I always ask myself, why did this person commit this crime, if in fact they're guilty? Why are they charged with this crime? What is going on here? That is the root problem that we have to get to before we have the kind of safety that is sought as a result of this legislation.

There are various levels of criminality, even with gun crime, and there is a root cause to that. That is not being addressed. Until it is, I'm going to submit to you that all this is going to do with the passage of Bill C-10 is to in some way instill a sense of false security over people. We have to understand why crime is being committed.

Let's look back 30 years in this country. We did not have, apparently, the level of gun crime then that we do now. We had the same Criminal Code and we had a Criminal Code that had no mandatory minimums. In the mid-1990s, the Liberal government passed some mandatory minimums of four years for robbery and one year for possession of certain firearms. We still have the problem. The question again is, why?

The reason, perhaps, is that we have to study, we have to consider, what we can really do not just to punish crime but to stop it from its root level. We have to understand the issues of poverty, of education, of social welfare. Those are much broader issues than perhaps what this committee can do, and they are much more expensive issues from the point of view of a parliament. They are expensive issues because they cost a lot of money to implement. Social justice programs, anti-poverty programs, increased education, understanding how our children are socialized into accepting the fact that gun violence may be acceptable is what we really need to do in order to stop this.

A number of years ago it was socially acceptable to smoke in this country. We still have smokers, but the way smoking was cured was not by any punishment but because it was made socially unacceptable to do that.

Impaired driving has decreased. The punishments have increased, but if you look around, one of the reasons, of course, is that it has become socially unacceptable to be that person who gets behind the wheel and might harm someone.

So we have to ask ourselves—and I don't have the answers—why is it attractive to use guns? It's not because the Criminal Code is soft. My clients don't commit these kinds of offences because they think they're not going to be punished. They don't consider that. They consider being caught.... You've probably heard this from other persons who've made submissions before this committee and elsewhere, but it is the fear of being caught that perhaps is the greatest deterrent, not the actual punishment itself.

So what I'm saying is, to just impose mandatory minimums and arbitrarily believe that maybe if we make it five years, seven years, and ten years, that will work, I submit to you that there's really no evidence of that.

Even if you do pass the legislation on that basis, you're still not getting to the problem of why, as in why this horrible incident happened in Toronto on Boxing Day. It didn't happen because someone said, “Oh, we're soft on crime, so I might as well go and shoot up the streets.” I think it would be extremely naive for anyone to believe that was the cause of it, or to think that the corollary of that, imposing a stiffer penalty, if one isn't considering the consequences of crime, will have an effect. We have to understand why those young men may or may not have been there, what was going through their minds, and why that was acceptable. Why is it that gun violence is tolerated? What is the root cause of that? That is the greater issue that requires the kind of consultation and study we are talking about today.

Two things I'll point out in support of my position. One, you're all familiar with New York City, of course. A number of years ago, I don't think any of us here would have considered venturing into Times Square in the evening. Now Times Square is perhaps one of the safest places in the United States. Why? It isn't because mandatory minimum punishments were imposed. It's because the police presence in Times Square was expanded greatly. There are police officers every 100 feet, and they have a police precinct there.

So it's the fear of being caught and it's the presence of the police that deters crime in that instance. I point that out because it reiterates the fact that it is the detection of crime that is important.

One item in the bill that I would point out specifically as one that may be problematic to you is proposed section 230, dealing with murder. This bill creates the new offence of breaking and entering to steal a firearm. It now says that culpable homicide is murder where a person causes a death during the course of certain offences, and that is one of them. It also includes the offence of robbery under section 343 of the Criminal Code.

I think it's incumbent upon the committee to realize that some years ago, the Supreme Court of Canada struck out robbery, in a case called Vaillancourt, as being available for this constructive murder section. Consequently, I believe and would submit to you that including this section concerning break and entering to steal a firearm would likely meet the same fate. What does that say? It says that, similar to what Mr. Trudell said, had there been, before this, the kind of consultation that we are suggesting, it would have been a very simple matter for someone to have pointed out that the section is probably unconstitutional on its face with respect to those two sections, one already being struck down.

Frankly, it's sloppy in terms of the way the matter has been drafted. That didn't have to be in there from the beginning. This goes back to our position that if we consult about these matters ahead of time....

We are criminal defence lawyers. We defend people who are charged with crimes. But we're also citizens of this country. We also have families and homes and properties. We have a stake in having a safe Canada. We are here to assist. Our message for you today is that we're still prepared to do that, but Bill C-10 is not going to get you the result you want in terms of safe streets.

You have to consult more. You have to look at the root causes of crime. That's what has to be dealt with.

[Margaret Beare, Former Director, Nathanson Centre for the Study of Organized Crime and Corruption, As an Individual]

Thank you very much for the opportunity to be here. I understand I have about ten minutes, but it probably won't take quite that long.

Most of the general criticisms regarding this legislation have already been outlined, probably this morning as well as in the legislative summaries. It's somewhat disheartening to realize that the problems have in fact been so thoroughly acknowledged, yet the proposal is for the legislation to proceed regardless. Research findings over a significant period of time, in various countries and distinct jurisdictions, are apparently treated as irrelevant to some extent. I would therefore like to make six points that I think are important in thinking about this legislation.

First of all, contrary to Justice Minister Toews' comment that academics who were critical of the bill did so without knowing what was in it, I do realize that this legislation is not similar in very many ways to the three strikes model that occurs within the United States. In fact, this legislation is limited to certain firearm-related offences, and that's to the good. But it does still have the arbitrary aspect of putting its weight behind the concept of the “sequence of convictions” notion of punishment, with the unsubstantiated claim that somehow this legislation and this kind of supposed get tough approach will contribute to making streets and communities safer.

Keeping to the popular baseball analogy, the minister is correct. It does not follow the typical three strikes. In looking over the summary on minimum imprisonment under Bill C-10, it offers us a two-strike model for certain offences, rather than three. There is an unfortunate occurrence in baseball when the second strike results in a foul ball caught by some overly eager opponent. Of course, there are quite a number of examples where the second strike can add the weighted sentence. Trafficking in or possession for the purposes is three years for the first, and the second offence is five. Altering a firearm is again three and five. It becomes a second-strike situation.

It claims to promote deterrence, yet contradicts the principle of specific deterrence, in that there does not appear to be in the legislation a guarantee that the sequence of convictions will be spaced so as to give the offender the benefit from any learning, rehabilitation, or actual specific deterrence following the first conviction. Lawyers speak of the Coke principle, whereby the second offence, with the punishment that's due to that second offence, must not have been committed nearly simultaneously to the first conviction and therefore the first sentence.

If we believe at all in deterrence and rehabilitation, then fairness and justice require that the convicted person should have an opportunity to learn before harsher penalties are applied. An example given in the parliamentary summary presents us with the example of a person who commits two firearm-related criminal acts. The point is made that regardless of the order in which they were committed, the order that matters is the order of conviction. This issue is particularly troubling with the sections pertaining to criminal organizations, where the punishment can in fact turn out to be crushing, and perhaps especially crushing for a young offender or a young individual who is not being treated as an adult. The first offence brings five years, the second offence brings seven, and third offence ten, when in fact the criminal acts could have been committed nearly simultaneously.

Thirdly, this legislation has the potential to turn the process of prosecution into a game, with the potential for the justice system to “time” convictions based on having the longer sentence saved for the second offence. As is described again in the summary, a person commits two offences, possibly simultaneously or very close in time. The example given was illegal importing of a firearm and B and E to steal a firearm. A decision can be made to proceed quickly with the B and E, so that the second offence has the longer prison sentence, five years versus three years. I realize that lawyers are used to playing games in order to avoid mandatory second offence legislation with drinking and driving or gaming legislation. The games will continue, but in a changed format, this time to the detriment of any serious attempt at rehabilitation.

Of course, from my involvement with the Nathanson Centre, I am particularly concerned about the linking of this bill with criminal organization legislation. The application of criminal organization legislation is broad and vague, and now it's linked to this new legislation. Yes, while it has withstood some challenges, the new offence of “participation”, particularly that offence within a criminal organization, is extremely broad. The crown, as you know, does not have to prove that the participation actually enhanced the ability of the criminal organization to commit the act. The crown does not have to prove that the criminal organization actually even committed the indictable act. The crown doesn't have to prove that the accused was even aware of the specific act that he or she might have been facilitating, and the crown doesn't have to prove that the accused knew the identity of any of the persons who constituted the criminal organization.

Now, if we take this “participation in criminal organizations” category of criminal and apply it to this legislation, again remembering what the crown does not have to prove, a person can be charged and convicted of participating in a criminal organization where a restricted or prohibited firearm is used in connection with the criminal organization, and the result can be that the individual then earns, if it's a first offence, five years, if it's a second, seven, and if it's a third, ten.

What is of particular significance to me is that what seems to be happening is that we pass legislation to address specific, high-profile incidents, usually where there are political consequences, and they're treated as if they're to address a particular problem. But then they become normalized in our justice system. Hells Angels spawned the criminal organization legislation--the so-called anti-gang legislation--and now street gangs are being treated as criminal organizations. The question then becomes, who's next?

The first point is the notion of bang-for-buck, which I thought was an appropriate consideration, given the anti-firearm legislation. We already know that the mega-trials are swamping the justice system. The only way the justice system is surviving under their weight is due to plea bargaining and the dropping of charges. Yesterday's newspaper told us what we already know: the gang mega-trials have swamped legal aid. We're told that a single person earning $16,000 may not qualify for legal aid. And with this legislation, there will be an enthusiasm for more mega-trials, hideously long trials, attempting to show that the operation was in fact a criminal organization. And there will be suspects without adequate defence facing these extensive mandatory charges.

The impact on plea bargaining may in fact be mixed, which again hardly qualifies as equal justice. There may be less plea bargaining. Therefore, there will be more demand for trials, more legal aid needed, and more prisons. Or there may be more plea bargaining with the crown dropping or not laying the second charge, with some sort of agreement being made for consideration of above-the-mandatory minimum for the first sentence. However you figure it, it's not going to be the uniformity that I suppose underpins the thinking behind this legislation.

Finally, what is the answer? The legislation only discusses mandatory minimums, which serve only to limit the discretion of judges and result in the kind of finagling I'm talking about. The ceiling still applies, and the judges can still, and do, give adequately harsh sentences. No one anywhere, except possibly in the United States, thinks that prisons are the answer to the crime problem. Again, in the background information on this, it acknowledges the need to build prisons.

What I would argue we need to do is pay more attention to research being carried out in Toronto and elsewhere. The focus should be on resources and working with the communities where gun violence is prevalent.

Resources should focus on taking seriously what guns actually mean to the mainly men who use them. Money that is seemingly being designated for prison-building and the corporate entities that profit from that exercise should be turned back toward the communities. There should be a focus on funding policing, which has already claimed significant successes in helping make our communities safer and more secure, which has happened without this kind of legislation in place.

Thank you very much.