Bill C-10 (Historical)

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

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

Criminal Code

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

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

Mr. Speaker, it is with great pleasure that I rise today to speak to Bill C-10.

This bill follows through on one of the key elements of the priority to tackle crime that the government set out in the Speech from the Throne. Bill C-10 proposes a number of tougher mandatory minimum penalties to ensure that appropriately high sentences are imposed on those who commit serious or repeat firearms offences.

This bill is not about universal mandatory minimum penalties. It introduces targeted mandatory minimum penalties for serious gun crimes and ensures that those who carry out these crimes will be penalized. This bill clearly sends a message that Canadians do not accept this behaviour.

Before describing the proposals themselves, I would like to take a few minutes to explain the nature of the problem that Bill C-10 seeks to address. This bill is aimed at tackling the problem of gun violence, particularly gang related gun violence which is prevalent in Canada's major urban centres.

In looking at the gun crime problem, it is important that we acknowledge what our role is in this fight. Firearms crime is a difficult problem. There are many partners involved in responding to this concern. The police are, of course, on the front line. Canadians were reminded a few weeks ago, with the shooting death of Constable John Atkinson of Windsor, Ontario, of the risks that police face in protecting us against those who use firearms for a criminal purpose. Those risks are real and unfortunately, often deadly.

On the issue of gun crimes in Canada, the police have told us that they remain very concerned about the number of guns they encounter in their investigations. They tell us they are coming across more illegal handguns, particularly in the hands of gang members or those involved in the drug trade.

I mentioned earlier how there are many partners involved directly in this fight. The police are not the only group with a strong role to play and who have voiced recent concerns about firearm violence. Other levels of government, provincial and municipal, have key areas of responsibility as well.

With respect to gun crimes, many provincial governments have requested that this issue be tackled aggressively. At the meeting of federal, provincial and territorial ministers responsible for justice in Whitehorse last November, it was the provinces of Manitoba and Ontario in particular that sought a resolution for tougher legislative measures for firearms offences, including higher minimum penalties. The other provincial ministers agreed.

Provincial attorneys general are responsible for the vast majority of the prosecutions of firearms offences in this country. Last November they agreed that more needed to be done to tackle this problem. Since then, several of them have reiterated their desire to have tougher measures in place. As Bill C-10 responds to most of their concerns with respect to mandatory minimum penalties for gun crimes, it represents a positive and strong first step toward accomplishing some of the common goals in this fight.

Several provincial prosecutors have expressed the concern that the existing mandatory minimum penalties for firearms offences are frequently being imposed as the sentence, while in many cases a penalty higher than the minimum should be imposed given the seriousness of the offence and the offender in question. Mandatory minimum penalties are intended to be just that, a minimum penalty, a floor, not a ceiling.

It would not be acceptable for the government to become complacent and to fail to listen to the concerns being expressed by those directly involved in the criminal justice system in dealing with this problem. Furthermore, the government is not only listening to the concerns expressed by police, prosecutors and the provinces, the people of Canada have said they want action from the federal government to help fight gun crimes. With Bill C-10, this government is responding to that call.

The federal government has a strong role to play to help further reduce gun crimes. We have policing responsibilities and we will follow through on our commitment to put more RCMP officers on the streets. This government also committed in the budget to invest in crime prevention measures to keep young people away from gangs, guns and drugs.

As parliamentarians, we are this country's lawmakers. It is incumbent upon us to see that our laws provide appropriate and adequate measures to address this pressing problem.

Some members of the House may be of the view that the current gun crime problem does not require a response such as the one contained in Bill C-10. However, the facts are clear that gun crime is a growing problem in Canadian cities and towns.

For example, in 2004 Winnipeg experienced a threefold increase in its firearm homicide rate, bringing it to over three times the national rate. In that same year the number of firearm robberies doubled in the province of Nova Scotia, bringing its rate to just behind the leading rate in the province of Quebec.

Toronto's rate of firearm homicides in recent years has been frequently reported on, but that city is not alone in having rates higher than the national average. The rate in Edmonton has also increased. Vancouver has consistently had substantially higher rates over the last decade, five and six times the national rate.

Handgun crime is a problem in our cities. This is particularly true in connection with organized crime, including street gang activity such as in the drug trade or in turf wars. The statistics also show that while crimes committed with non-restricted long guns are down, handguns and other restricted or prohibited firearms have become the weapon of choice for those who use firearms to commit crimes. It is important to note that handguns in this country have been registered, or supposed to have been registered, since 1934.

This leads me to the proposals contained in Bill C-10. Some may comment that the escalating penalty schemes proposed in Bill C-10 seem rather complicated. This follows from the need to provide for different schemes for different offences, which is directly related to the specific nature of the current crime problem involving guns that I have just described.

The escalating minimum penalty scheme for serious offences involving the use of firearms is based on specific aggravating factors most commonly present in the guns and gang context. The higher minimum penalties of five years on a first offence, seven years on a second offence and ten years on a third offence will apply when the offence involves the use of a handgun or other restricted or prohibited firearms. They will also apply if the commission of the offence is in connection with a criminal organization and any firearm is used.

I would note that while these factors are common factors in urban gun crime, they will apply to offences in both urban and rural settings. The following offences are targeted under the scheme of five, seven and ten year minimum penalties: attempted murder; discharging a firearm with intent; sexual assault with a weapon; aggravated sexual assault; kidnapping; hostage taking; robbery; and extortion.

Also, when we talk about the first offence, second offence and third offence, it is important to note that any prior conviction in the last ten years, excluding time spent in custody for using a firearm in the commission of an offence, will count as a prior conviction and will trigger the enhanced minimum penalties for repeat offences.

Enhanced minimum penalties are also proposed in Bill C-10 for various serious crimes in which firearms are not used but are involved. The escalating minimum penalties in the case of serious non-use offences are based on repeat offences and not on whether the aggravating factors are relevant to the serious use offences.

The escalating scheme of minimum penalties will be three years for a first offence and five years for a second offence or subsequent offence for the following most serious offences: possession of a loaded, restricted or prohibited firearm; firearms trafficking; possession for the purpose of trafficking; making an automatic firearm; firearms smuggling; and a new offence of robbery to steal a firearm.

The police especially are interested in the higher mandatory minimums for the possession of loaded or restricted firearms. More and more of them are turning up in automobiles. When the police check the cars, they are finding loaded firearms inside.

The benefit of that kind of a charge is that often civilian witnesses are not involved. It is the police officer's testimony, taking the weapon, which is the crux of the evidence. In fact, it is very important to have those higher minimum penalties. In this context of course, civilian witnesses cannot be intimidated because it is essentially only the police involved.

I would also point out the illegal possession of these firearms is becoming a growing concern. In Vancouver, the police tell us that 97% of firearms, the handguns, found there are in fact smuggled in from the United States. The registration of handguns does not deter the determined criminals in terms of even handguns.

An escalating minimum penalty scheme of one year on a first offence, three years on a second offence, and five years on a third or subsequent offence will apply for the following schemes: possession of a firearm obtained by a crime, possession of a firearm contrary to a court order, a new offence of breaking and entering to steal a firearm, and the additional offence of using a firearm or imitation firearm in the commission of other offences which attracts a consecutive minimum penalty.

For the serious non-use offences, it is important to note that prior convictions in the last 10 years will trigger the higher minimum penalties applicable in repeat offences. This would exclude the time in custody because we do not want to give credit for the time a person has been involved with handguns when serving time in custody, so it would exclude time in custody for both use offences and non-use offences.

Mandatory minimum penalties that are targeted at particular offences have been effective at reducing crime. Not only do they address the real problems of criminal conduct by denouncing the behaviour to society, but they have been shown to reduce criminal conduct. Studies by Steven Levitt in the Journal of Law and Economics in 1999 and in the Journal of Economic Perspectives in 2004 showed that there is a direct link between mandatory minimum prison penalties and a decline in crime rates and criminal behaviour.

I would like to speak to constitutional considerations. As Bill C-10 addresses the issues of penalties on imprisonment, it raises considerations under the Charter of Rights and Freedoms. Section 12 of the charter provides that people have the right not to be subjected to cruel and unusual penalties. It is important to note that the courts have in fact upheld mandatory minimum prison sentences. There is nothing unconstitutional about mandatory minimum prison sentences. It is how they are applied and in what context which is important.

The courts in Canada have been frequently called upon to assess the constitutional validity of the mandatory minimum penalties of imprisonment currently set out in the Criminal Code and, in particular, many of the ones that apply to firearms offences. In examining those provisions the courts have recognized that Parliament is entitled to take appropriate measures to address the pressing problem of firearm related crimes.

It is indeed Parliament's role to set the range of penalties which it deems appropriate for Criminal Code offences. That is not the role of the courts. It is the responsibility of parliamentarians. In doing so we need to ensure that our response is founded on recognized sentencing principles.

It is a fundamental principle of the Canadian sentencing regime that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The Criminal Code provides that the purpose of sentencing is to impose sanctions on offenders that are just, in order to contribute to respect for the law and the maintenance of a just, peaceful and safe society.

Accordingly, the objectives in sentencing are to denounce unlawful conduct, deter the offender and others from committing crimes, and separate offenders from society where necessary, as well as to assist in rehabilitating offenders, have them accept responsibility for their actions, and repair the harm that they have caused to victims or the community.

I would submit to members of the House and to Canadians in general that the proposed mandatory minimum penalties contained in Bill C-10 are not so high as to outrage public decency. They are certainly strong measures, but they are reasonable and they are a real response to a problem that is increasing in our cities and plaguing our cities.

Much effort went into ensuring that they are appropriately tailored to the pressing nature of the current gun crime problems. The highest level of 10 years for using a firearm and five years for other serious firearms related offences will apply to repeat firearms offences.

The manner in which the highest minimum penalties will apply is intended to ensure that they do not result in grossly disproportionate sentences being handed down. The question we need to ask ourselves is whether it could be considered intolerable to send those guilty of these offences to jail for at least these set minimum terms.

If an accused for example were charged with attempted murder using a handgun and he or she has two prior convictions in the last 10 years for robberies with a firearm would a minimum penalty of 10 years constitute cruel and unusual punishment? When it comes to looking at each of the proposals under that kind of lens, we will find that the minimum penalties proposed in Bill C-10 appropriately reflect the seriousness of those offences.

I would remind the House of the other parties' commitment to mandatory minimum prison sentences. The New Democratic Party indicated that it would agree to mandatory minimum prison sentences of four years for firearms and indeed the justice critic for the NDP has said that a five and seven year range would be constitutionally acceptable. I would suggest that when we are talking about third offences, 10 years is certainly not outside the scope.

I would also point out that the Liberal Party itself, during the election, supported mandatory minimum prison sentences for gun crimes. The Liberal premier of Ontario, the attorney general, and the mayor of Toronto have all supported these kinds of measures and these are all measures that are going to address a very serious problem.

Canada's new government has said that it will tackle crime to make our streets safer. Bill C-10 is one of the first initiatives the government has taken toward realizing that goal. That is because we consider gun crimes to be a very serious threat to public safety.

I am confident that we will have the support of most of the members of the House for these measures. I look forward to discussing and studying the proposals contained in Bill C-10 in greater detail in committee with other members of the House.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I have a few questions for the minister about the issue he has put on the table.

It was the Liberal Party of Canada in 1995 that put many of the mandatory minimum sentences in the Criminal Code. It fact, there are four year mandatory minimums. As he correctly stated, this is a floor not a ceiling.

However, there have been, to my knowledge, no studies in Canada, no research into the impact of the 1995 firearms legislation. The only study, Meredith, Steinke and Palmer, in 1994 examined mandatory minimum one year sentences for offenders convicted for using a firearm in the commission of an offence found in section 85 of the Criminal Code. The researchers found that charges under this section were often used in plea negotiations and about two-thirds of the charges laid were stayed, withdrawn or dismissed.

In addition, the study showed that when Crown attorneys proceeded with charges under section 85, there was a lower probability of conviction. The justice minister knows that, unlike other countries that have mandatory minimum sentences, there are no escape clauses, no escape ways to get out of that exceptional circumstance.

The minister said a few things in his speech that interest me greatly. First of all, I would like to ask him to table all of the studies that he relies on when he talks about the legislation because I, and many members of my caucus, have read intensively in this area over the last number of months and consulted.

The second thing I would like to tell him is that our four year mandatory minimum sentences were deemed constitutional, but the seven year mandatory minimums for drug trafficking were not. That is Regina v. Morrisey, if the minister needs to know of the case.

Canadians really want an effective piece of legislation. It is normal when one prepares this, and I know the minister has not had a chance to have the meetings with the territorial and provincial ministers of justice. That was done under the previous government. I know work was needed in this area. We were striving in a comprehensive way to work cooperatively to have a good solution.

I would like the minister to table his material with respect to constitutional arguments, so that we can all understand what he is relying upon. I would like to ask the minister, why did he not consult, prior to introducing the legislation, many of those special interest stakeholder groups that are knowledgeable in the area and that normally would be consulted on criminal law? Why did he not ask them for their assistance or run it by them to refine this, so he would not run into the traps that come when we go too far, overreach too much and ignore really, the best evidence we have before us? Why is it that he did this?

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, I find it remarkable for the member to suggest we tender for studies for this when there are many studies out there. Look at the Kyoto accord, for example. There were absolutely no studies, yet the former government relied on it and were willing to spend billions dollars on that program.

However, with respect to consulting, we did that. The department does not act in a vacuum. When a new minister comes in, he relies on the consulting that has occurred. I personally consulted with police and other organizations on this issue. Therefore, the idea that somehow the legislation has grown up in a vacuum in the last three months is wrong.

With respect to the issue of drug trafficking, the striking down of the seven year mandatory, I suggest my colleague go back to that decision and read exactly what it said. It basically said that for the importation of marijuana into the country, a seven year minimum was not a proportionate response, when by having one joint it would attract a seven year minimum.

The legislation is specifically geared to very serious use offences and serious non-use offences. It builds upon the constitutional cases that have surrounded the development of mandatory minimum sentences.

With respect to the study, the member knows, having been in the justice committee, that there are essentially no conclusive or other studies on mandatory minimum sentencing in Canada. That is inconclusive. I would direct her to the Steven Levitt study in the “Journal of Law and Economics, 1999” and the Journal of Economic Perspectives, 2004, which shows that there is a direct link between mandatory minimum penalties and a decline in crime rates and criminal behaviour.

The Liberal Party is still of the view that the streets in Canada are as safe as they were 30 years ago. If the member actually thinks that, why does she not take a walk in downtown Toronto, downtown Winnipeg and downtown Vancouver. After that walk, think back 20 or 30 years as to what these streets were like at that time. Now our peace officers and our civilians have to face the threat of gunfire, gun crimes and increasing numbers of handguns found in cars.

In the legislation, we are working to restore the confidence of the people of Canada in the justice system. This is a measured response and an appropriate response to a crime problem that has become very serious.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am surprised that the minister did not announce the position of the Bloc Québécois in his speech. He would have quickly realized that we have studies showing that minimum penalties have not solved anything.

Since the hon. Minister of Justice used to be the Attorney General of Manitoba, he must surely be aware of a process we criminal lawyers know and regularly use: plea bargaining. Therefore, since he has probably been through it, he knows that we counsel for the defence use plea bargaining when we are dealing with a charge of attempted murder. We say that we will never plead guilty to attempted murder resulting in a minimum sentence of imprisonment, but we would plead guilty if the charge were reduced to an accusation of aggravated assault, and, presto, there it is. The minister knows that is how it will go.

He knows that he is also going to clog up the court calendars and the courts, and above all that he is going to add to the prison population. Maybe he wants that, but it is not what we in the Bloc want.

But what is incredible is that Bill C-10 only applies to handguns. Why does the Minister not want to include rifles and shotguns in this bill? When we read it, we actually see that such weapons are excluded. We know, though, that in recent years the crimes he wants to punish were committed with shotguns, in the regions.

[The Speaker, Peter Milliken]

The hon. Minister of Justice for a brief answer, please.

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, I find it interesting, coming from a province that is plagued by organized crime, where there is a measure that is specifically directed at organized crime, that the member of the Bloc Québécois would stand and advocate essentially on behalf of the organized crime population.

On the issue of an increase in the population in our prisons of people who commit attempted murder, discharge a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery and extortion, my colleagues asks why should those people go to jail. They should be in jail. Our citizens deserve protection.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, today we begin debate on Bill C-10, an act to amend the Criminal Code, minimum penalties for offences involving firearms.

I welcome the debate because it will allow us, at least on this side of the House, to engage Canadians, assisting them understanding a vital part of the criminal justice system sentencing provisions. I expect the government's speeches will continue with the slogan that the bill is about being tough on crime.

First, all members of the House are concerned with their communities being safe. Unfortunately, we cannot legislate safety, but we all need a system of justice that works and works effectively. It is the responsibility of the government to put bills before us that are evidenced based and that will enhance the effectiveness of our criminal justice regime.

Amendments to the Criminal Code should not be ideologically driven, or rushed or arbitrary. There should be rational thought and analysis, something which hopefully could be supportable by all parties in the House. Good analysis, evidence and rationality is self-evident.

As I will with every bill put forward, I examined it with an eye to look for supportable legislation. Criminal Code amendments should complement and enhance an ongoing coherent and properly financed crime prevention strategy. Both are important to our communities. We need something more than budgets which mainly aim at increasing incarceration and overloading jails.

The Criminal Code contains 42 mandatory minimum penalties. The sentencing judge can use his or her discretion when sentencing to opt for higher than the mandatory minimum. In other words, a mandatory minimum is a floor not a ceiling. Generally speaking these 42 infractions fall within the following criteria: impaired driving and blood alcohol over .08; betting and bookmaking; high treason; first and second degree murder; use of a firearm in an indictable offence; use of a firearm in 10 listed offences; possession, trafficking et cetera of various prohibited firearms; sexual interference; invitation to sexual touching; sexual exploitation; making, transmitting, possessing, accessing child pornography, procuring and committing sexual activities of minors; prostitution of minors; and living off the avails of child prostitution.

The 10 listed offences include mandatory minimums if a firearm is used in commission with the offences of criminal negligence causing death, manslaughter, attempted murder, causing bodily harm with intent to harm, sexual assault with a weapon, a firearm, aggravated sexual assault, kidnapping, robbery, extortion and hostage taking.

Mandatory minimum penalties are also in the Criminal Code for: first, the use of a firearm or the intention in the commission of an indictable offence; and second, possession of firearm knowing it is unauthorized. Mandatory minimum penalties are also found in the Criminal Code for possession of restricted or prohibited firearms with ammunition, possession of a weapon obtained by crime, weapons trafficking or possession for the purposes of trafficking, making an automatic firearm and importing or exporting of a firearm knowing that it is unauthorized.

The bill before us today goes much further than the existing mandatory minimum sentences in the Criminal Code. Historically, mandatory minimum penalties have been used with great restraint. Mandatory minimums undermine the fundamental principle of proportionality. That is what gets us in trouble with the charter. The chief sentencing principles are enshrined in the Criminal Code and judges set a sentence proportionate to the gravity of the offence and conduct of the offender.

I will briefly outline what Bill C-10 does, a bill which is certainly not a bill that a lay person could easily read and understand.

The bill introduces three new levels of mandatory minimum penalties for offences involving firearms or committed in connection with a gang. The first set of offences concerns serious offences which are committed with a restricted firearm or if the offence is committed with a gang. In this category are attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery and extortion.

Each of these crimes on their own carry mandatory minimum sentences under the existing legislation if they are committed with a firearm. The MMP, the mandatory minimum penalty, is four years. The new legislation would increase the mandatory minimum penalty on the crime if it is committed with a restricted or prohibited firearm or if the offence is committed in connection with a gang. The proposed mandatory minimum sentences are five years on a first offence, seven years if the accused has one previous what I call use convictions and ten years if the accused has more than one prior use conviction.

Please note that under the existing legislation the term firearms was used whereas this legislation changes this to restricted or prohibited firearm in some of the sections. In lay people's terms this means that some of these amendments do not apply to long guns.

The four year MMP remains in the Criminal Code for the same crimes committed for non-restricted or non-prohibited firearms as per the previous government laws. When asked about why this distinction was made, the justice officials suggested that this was a policy decision made by the current government.

For determination of prior convictions, all eight of the use offences are considered as part of the pool of common offences. For example, if an individual is accused of hostage taking and that person has a previous conviction of a sexual assault, that will trigger the higher MMP of seven years. The offence will not be taken into account if 10 years have elapsed between the day which the individual was convicted of the earlier offence and the day the person was convicted of the second offence.

A closer reading, however, points out that if the offender was incarcerated at any time, the clock on determining the 10 year period does not count any time while being incarcerated. Therefore, as written in Bill C-10, this period could extend in reality to a much longer period.

Bill C-10 proposes new or higher mandatory minimum sentences for several serious non-use offences in the Criminal Code: unauthorized possession of a restricted firearm or prohibited firearm with ammunition and for reasons of trafficking, possession for the purposes of trafficking, making an automatic firearm, firearm smuggling and the new offence of robbery where a firearm is stolen. The new mandatory minimum sentences for these offences would be three years on the first offence and five years if the person has a prior conviction of either a use or non-use offence.

The new legislation proposes new mandatory minimum sentences for the following non-use offences, namely, possession of a firearm obtained by crime, possession of a firearm contrary to court order and a new offence of breaking and entering and stealing or intending to steal a firearm. The mandatory minimum sentences for these offences would be one year on the first offence, three years if the accused has one prior use or serious non-use conviction and five years if the accused has more than one use or serious non-use conviction.

These same mandatory minimum sentences would apply for a separate offence of using a firearm or imitation firearm in the commission of other offences, for example, the offences not listed in the use category I just outlined. Bill C-10 introduces a few new offences in the Criminal Code: breaking and entering and stealing or intending to steal a firearm and robbery with intent to steal or stealing a firearm and, in addition to section 230 of the Criminal Code, constructive murder.

The former government had similar offences in the last Parliament with Bill C-82, which was never debated having been given a first reading in November 2005 and the opposition defeating the government shortly thereafter. There are also questions as to the constitutionality with respect to parts of section 230.

I will give one example of what this means if this bill is passed. Contrast the mandatory minimum sentences for each situation. In situation (a), if an individual commits a robbery, for example, at a corner store while armed with a fully loaded long gun, and the individual has a lengthy record, including numerous prior convictions for other firearm related offences, under proposed subparagraph 344(1)(a), the individual would face a mandatory minimum sentence of four years.

In situation (b), if an individual commits a robbery but is armed with an unloaded handgun and the individual is a first time offender with no criminal record, under proposed subparagraph 344(1)(a), the person would face a mandatory minimum sentence of five years, one year more. The same would apply if, instead of robbery, the offences were sexual assault, kidnapping, hostage taking or extortion.

This shows that the length of the MMP, the mandatory minimum penalty, in the proposed legislation is based on the legal status of the firearm in question rather than on the extent of actual danger to the public presented by the situation. I also want to point out that the net has widened on these mandatory minimum penalties by the reality of section 21 of the Criminal Code, “Parties to offence”, which draws in people aiding and abetting the perpetrators of crime. For instance, if a girlfriend acts as a lookout or a getaway driver on that robbery with no action on the inside perpetrator's use of the firearm, that person could also be subject to the mandatory minimum.

We should be clear about what mandatory minimum sentences do. They take away the sitting judge's discretion in cases heard in our courtrooms. There is no exception, no escape clause and no discretion. Without mandatory minimums or with lower mandatory minimums as exist today in our Criminal Code, many of which were installed by the former Liberal government with respect to gun crimes, the courts are given the discretion to fashion a sentence that is much more proportionate to the gravity of the offence and the conduct of the offender and, also very important, to consider both aggravating and mitigating circumstances in each case.

In essence, mandatory minimum sentences conflict with the sentencing principles contained in sections 718 through 718.2 of the Criminal Code, particularly with respect to the fundamental principle of proportionality.

Mandatory minimum sentences pose charter risks under section 12. We know the Minister of Justice has even acknowledged this.

We know that the Supreme Court of Canada has struck down a seven year mandatory minimum penalty for importing narcotics. We also know that the Supreme Court of Canada upheld the constitutionality of the MMP of four years for the use of a firearm and criminal negligence causing a death, and that, by the way, was the case I meant on R. v. Morrisey. In that case the Supreme Court commented on the negative effects of the mandatory minimum sentences in introducing rigidity into the sentencing process.

In 1987 the Canadian Sentencing Commission and most Canadian commissions that have considered the issue in the last 40 years have repeatedly recommended the abolition of mandatory minimum sentences, except for murder and treason. Research into the effectiveness of mandatory minimum sentences have shown that they do not have any special deterrent or educative effect and are no more effective than less serious sanctions in preventing crime.

However, it must be made clear that it does not mean people do not go to jail. This was confirmed in a 2002 comprehensive study commissioned by the Department of Justice and written by Gabor and Crutcher entitled, “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures” Specifically, this study found that there was no correlation between the crime rate and the severity of punishment.

In the last four years, many U.S. jurisdictions have moved away from the MMP regime. On January 12, 2005, the U.S. supreme court decided in United States v. Booker that the sixth amendment was violated by the imposition of an enhanced sentence under the U.S. sentencing guidelines and held that the current federal sentencing guidelines should be considered advisory only, not mandatory.

On January 21, 2005, in the eighth circuit, in United States v. Coffey, this decision applied that previous decision made in United States v. Booker and confirmed that the U.S. federal sentencing guidelines were now advisory and no longer mandatory.

By 2003, about 25 states in the United States had passed laws eliminating some of the lengthy mandatory minimum sentences given the distortion, the increased costs and the high rates of incarceration that have resulted from rigid sentencing schemes.

In Australia, it has been found that aboriginal and other disempowered groups have been overly affected by mandatory minimum sentencing laws. In the U.S., a 1998 national law journal suggested that the harshest impact of mandatory minimum sentences was felt by African Americans. The data indicated, for example, that African American women had eight times more chance of being charged, convicted and sentenced under the mandatory sentencing laws than European American women. The overrepresentation of blacks is also a Canadian problem according to the systemic racism and racial profiling studies by Tanovich, Wortley, the Cole Gittens report and other reports done in Canada.

In Canada, minimums are expected to also disproportionately impact aboriginal offenders. We already have some Gladue courts for good reason. Mandatory minimum sentences are linked to wrongful convictions through plea bargaining since alleged offenders can easily be coerced into pleading guilty to a lesser charge when they face a stiff mandatory minimum sentence.

Crown prosecutors, for a variety of reasons, often circumvent the application of mandatory minimum sentences. The existence of an MMP sometimes results in charges being stayed or withdrawn. Accordingly, decisions regarding the appropriate punishment are now being transferred, and this is important, from the discretion of the judiciary to the discretion of the prosecution.

A 2005 survey of judges compiled by the Department of Justice found that slightly over half felt that mandatory minimum sentences hindered their ability to impose a just sentence. Mandatory minimum sentences promote an all or nothing approach. From the standpoint of public security, is it not better to ensure conviction and the imposition of an appropriate sentence based on the individual case facts and law, instead of risking that an accused not face trial or not be convicted of an offence?

The punishment should fit the crime and not be a distortion either way, which can easily occur with mandatory minimum sentences.

I do not know whether the legislation had increased hand gun crime in mind and specific locations in Canada, as we heard the minister say, but the reality we face as legislators in this House is that the Criminal Code operates from Nunavut where there is no federal penitentiary and sentences are served in Ontario, to Saskatchewan which has been trying very hard to constructively deal with the over-representation of first nations in the penal system, to Vancouver and eastern Canada.

Yes, we support increased resources to the police and communities. We also support money for educational employment and community sport for at risk populations, whether they are in downtown Toronto or in a small town in rural Alberta.

Neil Boyd, a Simon Fraser criminologist, estimates that with this legislation over 23 new prisons with astronomical associated costs would need to be built in order to meet the expected influx of prisoners who will be created by the Conservative government's criminal law agenda. From provincial institutions to federal prisons, it would cost taxpayers huge resources to incarcerate this many people. Is it the best use of resources? Can a more well-rounded, smart and effective system be designed which does help prevent crime and give confidence in the justice system and the rightful discretion to our judiciary?

With all the talk of accountability, some of the stakeholders, who normally assist in the legislative process during the consultative stage, were not consulted prior to the introduction of the legislation. I believe that not every provincial or territorial minister of justice or attorney general knew the contents of the bill as introduced. We do know that general consultations occurred with them by the former government at the semi-annual meetings of ministers of justice and work was warranted and wanted in the area.

What about the Canadian public, the taxpayer? The Department of Justice reports that the public does support some mandatory minimum sentences, which we have, especially for the most serious crimes of violence and especially if they are polled without knowing or being able to consider the potential deficiencies associated with mandatory minimum sentences of imprisonment.

We now know that in both Australia and the U.S. public support for mandatory minimum sentences has declined in recent years. In reality, very few countries in the world have created mandatory minimum sentences, which we have here in Canada with the minimum four year term of custody created by the former Liberal government in 1995 on gun crimes.

Where is the new evidence by the Minister of Justice to support the case for Bill C-10 as written? We already know that the best that can be said of enhanced sentences for firearms and crime reduction are that findings are inconsistent or unclear, again supported by the minister's own words. This is a generous interpretation however. There is no evidence that sentencing disparities are reduced by the use of mandatory minimum sentences and a number of unintentional adverse affects and distortions in traditional patterns of sentencing have been well documented.

Where is the Canadian research that would lend support to this bill? It does not exist. We already know, from his appearance at the justice committee, that the Minister of Justice was challenged by every opposition party in Parliament on his use of crime statistics. He continues to disparage the judiciary in his casual public comments. We want constitutional laws in Canada. We need a solid working and just system of criminal justice to serve Canadians.

The Department of Justice's research and statistical division paper on “Mandatory Sentences of Imprisonment in Common Law Jurisdictions”, authored by Julian Roberts, is a good overview for information on sentencing arrangements in a number of common law jurisdictions around the world.

Anthony Doob and Carla Cesaroni at the Centre of Criminology wrote a 2001 mandatory minimum sentence paper. The list of the impacts of mandatory minimum sentences is an important part of that paper.

If the bill gets to committee we will need to hear from many of these people. For our part, we will be against the legislation as being bad policy and very questionable law. The government could have presented a properly balanced bill but it chose to message its core group instead. Everyone loses when government chooses not to govern responsibly and instead play politics with the Criminal Code of Canada.

There are no simple solutions to complex problems. This is not a campaign. We have serious work to accomplish in Parliament. Gun crime and gang violence should be properly addressed and we will be here to help.

All I hear from the new Conservative government is about simple messaging. It is not worthy in Bill C-10. This is not supportable criminal law legislation. This is hurried legislation with inadequate consultation and the refinement needed to ensure it would work effectively. This has now become a pattern with the Conservative government. Canadians deserve better.

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, I note the member's comment that this is not the election campaign. Indeed, how true that is. During the election, those members were all in favour of mandatory minimum prison sentences. As soon as the election is over, of course, their new-found conversion is gone and they have betrayed the people again.

In respect of the issue of playing politics with the Criminal Code, is that not interesting? The Criminal Code is in fact a policy statement enshrined in law. That is for politicians. My learned colleague keeps on wanting to defer all discretion and all responsibility over to the judges. That is an abdication of responsibility of Parliament. We need to ensure that we are responsible as politicians and that we do not continue to give it over to the judges.

Again I note a comment, the statement in respect of the mandatory minimum prison sentence of seven years on the importation of drugs, and again the member has misrepresented the facts. I would invite Canadians to go back and read that particular decision as to why that particular mandatory minimum was struck down. Similarly in the referenced vehicle case out of the Supreme Court of Canada, when we do not have an appropriate degree of mens rea, we cannot have mandatory minimum prison sentences.

The last comment I would want to make is simply that what the American evidence shows is that if we move to targeted offences it is absolutely working in terms of reducing crime, as we have seen, for example, in New York, but I know that my colleagues in the Liberal Party do not want to see people who commit attempted murder or sexual assault with weapons going back into jail. They want them out on the street. That is an abdication of responsibility to the people of Canada.

[The Speaker, Peter Milliken]

Questions and comments will resume when the debate resumes later this day.

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

[The Acting Speaker, Royal Galipeau]

When we were last discussing the bill, the hon. member for London West had eight minutes left. I recognize the hon. member for London West.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, the Minister of Justice had questioned me. Instead of putting before this chamber the evidence that he was using, he went back to make more attacks on the judiciary. This is wrong.

We have a respect in this country for our court system. Most Canadians have a high regard for members of our judiciary because they do difficult jobs for us and society.

The minister has to be reminded that the Attorney General of Canada is normally the person who should stand up for the judiciary in public debate and actually is the highest legal officer of this Parliament. What we have is someone who seems to think its is fine to casually talk about our judiciary in a manner that does not show it the respect that it deserves.

We have a Criminal Code in this country. It sets out the penalties across the country, not just for one location but for everywhere, not just for people in one region but for all the diverse multitudes in Canada.

We know there are issues. We have to go back each time and look at what the Department of Justice in its 1994 report by the Firearms Control Task Force said about the mandatory minimums and what was said on the data at that time. There has been a lot more data compiled in various jurisdictions around the world since then, but this is not a bad summary to start off with.

I will go over some of the things. Charges with minimums are often plea bargained. The public is not aware of which offences are covered by minimums. The participants in the justice system alter their behaviour to mitigate the harshness of the sentence. Discretion shifts from the judges to the prosecutors. Minimums result in lower conviction rates. We are getting the reverse of what we are after with the wrong population.

The Minister of Justice in his comments to me made it sound like members on this side of the House do not want to have convictions on serious matters. Absolutely we do. We want the right people in jail and we want them there for whatever time period. We have a floor on many mandatory minimums. It is a floor, not a ceiling.

The judges have the discretion if we leave it with them to consider the circumstances of every case and make the sentence higher or lower, depending on the circumstances. The circumstances of the case applied to the law will give the most just result in our Canadian democratic society.

We do not want rough justice in this country. We do not want approximations. We do not want a one size fits all justice. We want situations where the proper people are kept in jail. Some of them should stay there for a long time, there is no doubt, especially violent repeat offenders.

We have those 10 listed offences right now with the gun crimes. We put them there. Our Liberal government put them there. Do not tell me there was not something done. It has been done. We have not had a study that shows the results of that legislation at this time.

Let us return to the same Department of Justice review of the data. As a means of incapacitation, that is taking somebody out of society, a person who is in jail cannot commit another crime. Minimums are estimated to have no more than a modest impact on crime rates for the target offence. There have been more studies on this but they are inconclusive. Minimums result in increased prison populations. Keep in mind that the stats at that time said it cost $62,000 to house federal inmates. We know that in federal prisons it is a higher. It varies somewhat but it is a little higher than this on an annualized basis. Minimums increase trial rates.

Mr. Speaker, am I at my eight minutes?

[The Acting Speaker, Royal Galipeau]

You are running into the questions and comments period. You might want to have other questions.

[Sue Barnes, Liberal, London West, ON]

I will wrap up my comments, Mr. Speaker. Minimums increase trial rates. Individuals will go to trial because the sanctions are so high. In the past it was said that judges get around the minimums. They will probably take a lesser, included charge and give a longer sentence.

There are different ways to get around the system with either juries, judges, prosecutors or even police at the charge stage. One can get around the system if its perceived to be too hard.

We came up with a better and smarter way. I know we had a tripartite way of dealing with it that not only had an ability to get the legislation done, and if had been reasonable legislation, this side of the House would have supported it. However, we needed to have more effective enforcement and we agree that we have more police on the ground now. When they are in the communities, they do have that effect. I think it is a good thing.

Social initiatives that address the root causes of crime are important too. I know that with our gun schemes, we were going to put $50 million in crime prevention strategies in downtown Toronto. This number is not equaled by the current government. The Conservatives should rethink it. They should bring us something that has more of a holistic approach, more of a rational approach, then maybe we could get to crime and punishment that is effective and could support on this side of the House.

[The Acting Speaker, Royal Galipeau]

The hon. member for Yukon will have little over a minute for a question and an answer.