An Act to amend the Criminal Code and the Corrections and Conditional Release Act (punishment and hearing)

This bill was last introduced in the 39th Parliament, 2nd Session, which ended in September 2008.

This bill was previously introduced in the 39th Parliament, 1st Session.

Sponsor

Gord Brown  Conservative

Introduced as a private member’s bill. (These don’t often become law.)

Status

In committee (House), as of June 4, 2008
(This bill did not become law.)

Summary

This is from the published bill.

The purpose of this enactment is to increase the punishment and impose a minimum punishment for the commission of an offence with a concealed weapon. The enactment also ensures that victims’ interests are taken into account during the conditional release process and that only the actual time spent in pre-trial custody is credited toward a term of imprisonment.

Elsewhere

All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.

Votes

June 4, 2008 Passed That the Bill be now read a second time and referred to the Standing Committee on Justice and Human Rights.

Criminal CodePrivate Members' Business

May 28th, 2008 / 6:35 p.m.


See context

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, Bill C-393 purports to amend the Criminal Code in several ways and to amend the Corrections and Conditional Release Act, more commonly referred to as the parole act.

It has at its base with regard to the Criminal Code amendment the introduction of mandatory minimums, basically when the crime that has been committed involves a concealed weapon. We heard from the member for Leeds—Grenville about the horrendous experience that he and members of his family experienced as a result of the use of a concealed weapon.

It is generally the position of the NDP, policy-wise, that we are not supportive of mandatory minimums. We strongly believe in the use within the judiciary of judicial discretion so that the crime and punishment fit the individual facts, as opposed to applying across the board mandatory minimum sentences and taking away from the judiciary the right to apply appropriate sentences based on the facts that are before them, and as opposed to being compelled to impose a penalty no matter what the facts are.

As a political party, we certainly in the past have made exceptions to the rules. We are quite supportive of the use of mandatory minimums in a variety of ways with regard to impaired driving, where in fact their use has been successful. More recently, we have been supportive of the use of mandatory minimums with regard to the use of firearms in the commission of crimes, because in both of those cases we are faced with an epidemic of crime of crisis proportions.

We are able to show, perhaps not as fully as we would like, that the use of mandatory minimums, a more severe form of punishment and penalties, is successful when it is targeted and when we are dealing with a crime that is at a particular crisis level. It is effective there.

We are able to show, particularly by looking to the experience in the United States, where the use of mandatory minimums grew out of all proportion, that it did not have any particular impact on the reduction in crime in those states where it was used extensively. In fact, we are seeing a number of state governments in the United States now repealing mandatory minimum sentences because they have been shown not to be at all effective and in fact have been shown to be useless when they are used broadly.

To come back to Bill C-393, I think we all can appreciate and be concerned about the process that the member for Leeds—Grenville went through and understand his motivation in moving this bill before the House. Unfortunately, that is not the way law should be drafted. In particular, criminal law should not be drafted from that perspective. I do not want that to sound in any way critical of him, but it is simply an observation of the methodology that one should apply when one is creating criminal law.

I do want to be critical of the government and maybe the Conservative Party and its members. The government cannot continue to try to amend the Criminal Code piecemeal. This is another example of it.

If the government is really serious about widespread reform as the government sees it, or as changes to the Criminal Code and maybe to the ideology behind the Criminal Code, to the philosophy of sentencing and the philosophy of punishment as the government would see it, then it has to be government policy. We cannot be doing this ad hoc and piecemeal, one section of the code at a time. It is just simply not the way to have a criminal justice system that makes any sense.

The government is not doing that. I have stood in the House repeatedly over the last couple of years, since the Conservative government has been in place, and criticized it for not doing that. I have implored it, if it is serious about amending the Criminal Code, to do it in an omnibus way and bring in massive legislation.

The code is in terrible shape in many respects. It has contradictions in it. Penalties are too severe in some cases and not severe enough in others, when the crimes are juxtaposed with the resulting range of penalties that can be imposed. It needs to be updated in a number of ways because of the advance of technology. Rather than do this in a way that would be systematic and effective, the government has not done that. It has brought in a series of bills. In addition to that, private members have brought in a series of bills.

I do not have the number, but Parliament, since January of 2006, has to have been faced with at least 50 bills on crime, between the 10 to 20 that the government has brought forward and then at least the 30 to 40 more in the form of private members' bills. It is confusing. It is an erratic way to proceed with reform of our criminal justice system. It is just not the right way to do it, but the government continues.

I want to be clear. As individuals, there is always a free vote. However, members of the NDP always discuss it and we have not collectively come to a decision as to whether we will support the bill at second reading and send it to committee or vote against it second reading.

I want to express another concern about the bill. The very first major criminal law bill, an amendment to the Criminal Code, which the government introduced shortly after it was elected, was Bill C-9. That was back in the first session of the 39th Parliament. The bill went to the justice committee and was significantly altered in the committee. It dealt with conditional sentences. When it came back to the chamber and was finally passed, it expressed the will of Parliament, the significant majority of parliamentarians who were elected in the last election.

We made it very clear to the government that the use of conditional sentences was not to be cut way back as Bill C-9 originally proposed to do, again leaving to our judiciary the discretion as to when a conditional sentence was appropriate. That message was very clear. My estimation was that perhaps as many as 90% of the crimes that the government wanted to exclude from the purview of conditional sentences were in fact put back in by the justice committee in the amendments and then adopted by Parliament, by the expression of the will of a significant majority of parliamentarians.

This bill, and it is just a small part, would preclude the use of conditional sentences by introducing a mandatory minimum in these circumstances. It seems to me the bill is contrary to the intent of the spirit of the vote that we took under Bill C-9. I almost question whether the bill should have been allowed to proceed because we had a vote in the House. It was a government bill altered by the opposition parties quite significantly and I believe that vote would have precluded this bill from coming forward.

I believe it should never should have come forward to the House, given the rules. However, it has and it is before us, but it causes me great concern as to whether we should support the bill, given the vote that has already taken place in the House.

Criminal CodePrivate Members' Business

May 28th, 2008 / 6:45 p.m.


See context

Liberal

Shawn Murphy Liberal Charlottetown, PE

Mr. Speaker, I appreciate the opportunity to rise to say a few words on Bill C-393.

The bill has three points. It would invoke a mandatory minimum for the commission of a criminal offence with a concealed weapon. It would also amend the Corrections and Conditional Release Act to provide victims and their families more information on release applications. It also seeks to codify the remission for time served. I do not think it is in the Criminal Code now, but a lot of the judges use the two for one formula and this would go one for one.

At the outset, although I respect the member for Leeds—Grenville and I appreciate the work he has put into this and I appreciate his motivations, I cannot support the bill, mainly because of the implementation of the mandatory minimum sentence for this offence. It appeals to certain individuals, but the bottom line is it takes away or it fetters any use of judicial discretion.

In any case, coming before a judge, the judge is required to apply the fundamental accepted principles of sentencing, the established ones being retribution, deterrence, possible rehabilitation of the offender, protection of the public, circumstances surrounding the offence, circumstances surrounding the offender and others.

No two cases are alike. A judge could practise for 40 years and he or she would never see two cases that are the same. I had the privilege of practising law for 25 years. I acted both as a part time prosecutor on these cases and as defence counsel. I have looked into the eyes of these individuals. There are no two cases alike.

It has been done in certain cases, but the imposition of a mandatory minimum in offences such as this would, in my opinion, be a step backwards.

We are dealing with a first offender, and this again goes back to the fact that no two cases alike. It is perhaps the person's first real run-in with the law. I have seen situations of younger people getting in with the crowd or they are under the influence of drugs and alcohol. The judge has to take into account deterrence, retribution, circumstances of the offender and protection of the public. However, in that case, as in a lot of the cases, rehabilitation of the offender has to be a primary consideration.

The circumstances change fundamentally if we are dealing with a person with a record of three or four criminal offences. Then those other principles give way to protection of the public.

I do not suggest that sentences be lenient or that there be no sentences. What I am saying is no two cases are the same and we cannot throw out of the back of the truck the fundamental principle of judicial discretion. I am like everyone else in Canada. I see situations. Sometimes I up the paper and read that somebody convicted of an offence, which sounds terrible, and probably is, gets what I consider to be a light sentence. Now that could be one of two situations. The first is that in actual fact the sentence was quite a bit lighter than it should have been, maybe there was an appeal or maybe the judge screwed up. The second, and more likely, is that the media got the facts screwed up totally. It does not describe the offence or the offender, and we are left with an erroneous impression that this has come about.

The bill does not take into consideration regional differences. We have the northern communities. We have east and west. Everyone has different crime rates, different causes of crime. This would be an amendment to the Criminal Code and would be binding on all regions in Canada.

The bill does not take into account differences in cultures. We have a situation where people who come from the western province, where you come from, Mr. Speaker, where the first nations population has a certain percentage, but the percentage in prisons is five or six times that. Why is that? Why do we have five or six times the percentage of first nations in our prisons? Is there a reason? Will imposing the mandatory minimum sentence improve that? Everyone knows it will not. What is the cause of this? It is early in the game, but I believe some things such as healing circles and restorative justice are working. Once we pass this legislation, a lot of that may be go out the back door.

I have concern about the whole administration of justice. A lot of these cases are bargained. Literally the system cannot handle the cases before it, but if there is a mandatory minimum, no defence counsel will agree to anything and we will go to trial.

Those are some of the considerations. In principle, it sounds great, but there is fundamentally one problem: it does not work.

The previous speaker talked about the situation in the United States. This was a movement, which started in the United States about 20 years ago, where once it invoked the mandatory minimums, the crime rate would go down and everything would be great. It did not happen. The previous speaker said that some states had repealed their mandatory minimums. I actually know the number of states. Since 2003, 25 states have repealed the legislation dealing with mandatory minimum sentences. That probably represents half of the people living in the United States. The research indicates that it generally does not work. Our southern neighbours are realizing this now and that is why they are repealing it.

I make these comments with the greatest respect to the member for Leeds—Grenville and the motivations behind this draft bill, but I cannot support it.

On the principle of the so-called two for one formula, as far as I am aware, that is not in the Criminal Code now. It is a practice that has developed over the years. It is generally widely accepted. I am not saying I agree or disagree with it because every case should be dealt with on its merits. We had the high profile case of Brenda Martin back from Mexico and there was speculation a judge would be hearing the case in Canada and would give her the so-called two for one credit. Again, it comes back to the judicial discretion in a particular case.

The two for one is not codified now. It is just a rule of thumb. If we had the one for one codified, that would go forward with the actual sentence the judge gave. Every circumstance is different. If people were in jail for protection of the public, that is one situation. However, if they were in jail for two years because they could raise the $20,000 bail, that is an entirely different situation. I would argue in that case probably they should get more credit than one day for one day. Do not forget in that two year period they were in jail because they could not raise the bail, they would not be eligible for parole. If it worked the way it often does, people might be eligible for parole after serving half the sentence, but the two years they were in jail would not apply.

The point is that we will never have two cases that are the same. Each case has to be dealt with on its merits and on the circumstances surrounding the case. In a situation like this where we are trying to invoke mandatory minimums, I suggest it is a step backward.

Criminal CodePrivate Members' Business

May 28th, 2008 / 6:55 p.m.


See context

The Deputy Speaker Bill Blaikie

I am sorry, but I have to end the hon. member's remarks there. His time has expired. The hon. member for Cambridge.

Criminal CodePrivate Members' Business

May 28th, 2008 / 6:55 p.m.


See context

Conservative

Gary Goodyear Conservative Cambridge, ON

Mr. Speaker, I rise with great pleasure to speak in support of Bill C-393 introduced by my colleague, the member for Leeds—Grenville.

Like the member for Leeds—Grenville and others who speak in support of the bill, working to improve the operation of the criminal justice system in Canada is a priority for me as well, not just on behalf of the country, but in particular on behalf of my constituents in Cambridge and North Dumfries. I know that this is also the case for many members of this government, apparently not all members of the House, but perhaps we can discuss this as parliamentarians do and convince the Liberal members who are opposing the bill of their wrongful ways.

I want also to echo remarks that have been made in debating these matters. What I seek is to genuinely improve the justice system. Even though we may have disagreements on how to do that, I am encouraged that perhaps if members opposite listened and paid attention they may actually agree that we need to change some of the things that we have done in the past.

I think all of us will agree, however, that in considering changes, we are well served by ensuring that we know the facts of what we intend to do, the facts behind the issue and the consequences of any changes that we might wish to make.

This is second reading debate of this bill. I am encouraged that the committee, which will seek information from witnesses and experts, potentially offering some amendments is exactly the right thing to do and exactly why the bill needs to be supported. Further, it seems to me that the best legislation is usually as a result of having a clear understanding of why we seek to do what it is that we are seeking to do.

Finally, I am sure members will agree that the justice system is one that inherently relies on public confidence, and that is a key word these days, and that it and the Canadians it is designed to serve are entitled to a system, not entitled as parliamentarians to their entitlements, but as Canadian citizens they are entitled to a system that avoids artificiality, speaks the truth in what it does and recognizes the difference between right and wrong in how it makes those decisions.

These observations may seem self-evident, but as many of us are familiar with a justice system or who have listened to the descriptions of the proceedings in the Moffitt case, the terrible case that caused my colleague to present this bill to the House, it is true that it is not always the case that these observations are in fact self-evident.

Bill C-393 deals with three areas of criminal procedures. These include the exercise of discretion in determining pretrial custody credits and enhancing victim interaction in the parole process. There cannot be anything wrong with those two. The third is in the area of establishing mandatory minimum sentences for crimes involving weapons and specifically those involving knives. Other members may wish to speak to the first two subject areas I mentioned, but I just wanted to indicate that I support those areas and what I would like to do in my time allocated is focus my remarks on the mandatory minimum sentencing.

As members have heard, there is a regrettable but undeniable growth in the number and seriousness of violent crimes committed with knives in Canada. Today I looked up statistics for my own region of Waterloo. I do know the member for Kitchener--Waterloo has suggested there is no problem with crime in that region, but if he checked the statistics he would see that other violent crimes are up 28%. Offensive weapons have gone from 427 cases in 2005 to 535 cases in the next year. That is about a 20% increase. We cannot stand back and do nothing.

As it frequently is the case in dealing with criminal justice reform, there is not necessarily a single answer, but instead a response that covers the spectrum of principles that underlie our justice system.

Certainly measures that attempt to prevent people from engaging in criminally carrying knives or in stopping such behaviour is part of that solution. The bad guys have to know that if they are going to do serious crimes, they will do serious time. At this stage of the bill we can leave the balance to the experts at committee.

The point of Bill C-393 which I completely support is that for some people the knowledge of a certain and unpleasant consequence does work as a deterrent. This is the root of mandatory minimum sentencing. It is, as members know, a long-standing part of our justice system. This kind of stuff already exists. I might point out that the Supreme Court has just upheld that it is in fact constitutionally valid.

In fact, let me quote from that case where Chief Justice McLachlin, speaking for a unanimous court, rejected the idea that there could be an exemption to what Parliament enacted as a four year mandatory minimum sentence for causing death with a firearm, which is the same one as proposed in Bill C-393. She said:

In granting a constitutional exemption, a judge would be undermining Parliament’s purpose in passing the legislation: to remove judicial discretion and to send a clear and unequivocal message to potential offenders that if they commit a certain offence, or commit it in a certain way, they will receive a sentence equal to or exceeding the mandatory minimum specified by Parliament. The discretion that a constitutional exemption would confer on judges would violate the letter of the law and undermine the message that animates it.

If any of my colleagues want to look that up, that is from R. v. Ferguson , paragraph 55. I selected this quote simply to remind members of two things: one, this type of thing already exists in the Criminal Code; and two, it is constitutionally valid.

The point behind mandatory minimums is not simply to cause courts to sentence more severely but, as the member opposite just said, to actually contribute to there being less need in the long term for courts to sentence because at least some people would be getting the message. It is not a total solution, but it is part of the solution.

One of the mandatory minimum sentences proposed simply adds homicides committed with a knife to section 236, which already requires such sentencing, as I have stated, for homicides committed with a firearm.

Given the disturbing reality of knife homicides actually now outnumbering firearm homicides, I trust that members will come to their senses and all members will support this bill at second reading.

Bill C-393 creates a new mandatory minimum sentence with escalating time for repeat offenders for persons convicted of criminally possessing a concealed weapon, which includes a knife. This does not create any new kind of criminal liability for someone in lawful possession of a knife. It does, however, do several important things. It creates a mandatory minimum custodial sentence of 90 days' incarceration with a minimum one year sentence for subsequent offences. This is a clear and unequivocal expression of Parliament that a dangerous behaviour that too frequently and increasingly frequently leads to deaths like that of Andy Moffitt is unacceptable and Canadians deserve better care.

I want to conclude by saying that anyone who practises criminal law will attest that such actions as increasing maximum sentences that we have seen from the previous government are literally useless. It does not mean anything simply because the courts virtually cannot ever hand out maximums.

I have to salute my colleague, the member for Leeds—Grenville, for introducing a bill with practical, specific, targeted measures which I do believe will produce tangible results.

I am supportive of the bill being referred to a committee for study. I hope that all aspects are fully assessed.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:05 p.m.


See context

The Deputy Speaker Bill Blaikie

I am sorry, but the hon. member's time has expired.

Resuming debate. The hon. member for Brandon—Souris.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:05 p.m.


See context

Conservative

Merv Tweed Conservative Brandon—Souris, MB

Mr. Speaker, I too am pleased to speak in favour of Bill C-393.

I also want to acknowledge and commend the member for Leeds—Grenville. He has had a very active role in developing this legislation.

There are reasons for legislation to come forward. This is an example where a member of Parliament, through a cause in his community or a cause on behalf of people he knows, has developed legislation that would actually work for victims and the victims' families. That is an important part of our job as members of Parliament and as makers of the laws of Canada. People's experiences, and not always good experiences, give them the ability to communicate and work with members of Parliament on these types of bills and allows these types of discussions.

I support the bill at second reading and support the idea of moving the bill to committee so we can have more discussion. People in other organizations have lots of concerns about some parts of the bill. That is why it should go to committee. It can be worked on there and people can bring their own experiences to committee and offer changes that may or may not be needed. I will certainly be following this very closely.

As many people have said, the bill proposes to create new mandatory minimum sentences of imprisonment for carrying a concealed weapon, as well as for manslaughter committed with a concealed knife against an unarmed victim.

When people are awaiting their trial and sentencing there is sometimes a trade-off in days spent and three days may be traded for one. That is not what Canadians want. People have told me time and time again that this is not what they want, and the member has addressed this issue in his bill. Canadians want people to be accountable for their actions and to be responsible to the public. It is our job as legislators to develop laws that protect the victims and their families. Often friends in my community tell me that they have a real problem with people being kicked back into the community, barely having served any time, and not accepting full responsibility for, or understanding the implications of, their actions.

I am certainly supportive of the bill. I have spent a lot of time speaking to the member for Leeds—Grenville. He has been a tremendous advocate for this type of protection for victims and their families. I look forward to the bill going to committee. We are going to come up with a substantive bill that will protect Canadians. I see that as our main job as legislators.

I will end my debate there as I know the hon. member wants to wrap up and I am certainly prepared to let him do that.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:10 p.m.


See context

The Deputy Speaker Bill Blaikie

Resuming debate. I recognize the hon. member for Leeds--Grenville for his five minute right of reply.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:10 p.m.


See context

Conservative

Gord Brown Conservative Leeds—Grenville, ON

Mr. Speaker, I would like to thank all members for participating in the debate and for their consideration of the important issues contained in Bill C-393. Its goals are straightforward and they deserve our support.

The bill will break the escalation of violent knife crimes by applying deterrent measures, including for the act of criminally carrying a concealed weapon. It will end the abuse of judicial discretion that results in career criminals and bail violators being rewarded at sentencing and ensure crime victims are kept properly informed and not subjected to procedural abuse in their interaction with the National Parole Board.

These measures are intended to deal with systematic issues that are not theoretical or ideological. Their origin comes from the current realities of crime and the justice system in Canada.

When the bill was debated on April 11, I was surprised to hear some members opposite suggest that it was the response to a single case. In fairness, the member for Burnaby—Douglas did ask if there were other examples, and while I mentioned some in general terms during my original remarks, let me now provide greater details.

Members no doubt took note of the recent release of the youth crime stats which reported that youth homicide rates have risen 41% since 1997. About 44% of homicides committed by youth involved a knife, while 17% involved a firearm. Violent crime has risen 30% since 1991.

In preparation for this debate, my office did by no means a complete media scan. We started back on October 24, 2007, and ended just the other day on May 25. I have assembled clippings, and I stress that they are not complete, but we have recorded 170 stabbings or robberies with a knife and 44 separate homicides with a knife.

To be more precise, since our last debate on the bill on April 11, we have noted 45 stabbings and 14 knife homicides in just six weeks. These incidents involved swarmings, home invasions, robberies and assaults, and fights tragically escalated through the use of a previously concealed knife.

There are other systematic factors involved in at least some of the cases, but having the House send a deterrent message, a preventive message such as recognized recently by the Supreme Court of Canada, is a positive step to make this country a safer place.

The same clipping survey details cases of violent offenders, who were denied bail because of their past criminal records, being rewarded with not only credit for the time they earned in precustody but with double and in one case even triple credit for their ongoing criminality.

In one case extra credit was awarded for a vicious knife attack, even though the offender had his bail revoked when he was charged with being an accessory to murder while on bail for the stabbing.

The law does not require such credit, but I would suggest that the law needs to be changed to prohibit in these narrowly defined circumstances.

My background is not in criminal law, but working on the bill has shown me that we need more than just a legal system with rules to be followed without question. We need a justice system where those rules actually support the principles of justice, like past misconduct not being rewarded when it is followed by continuing criminality or consequences for breaching court orders.

Bill C-393 is limited in scope and in purpose. I welcome suggestions about how it could be improved to achieve its goals. I have already received several constructive wording suggestions which I think will do exactly that.

This is the rationale and mandate of our committee system. I urge members to vote to send the bill to committee so we can do the work that we do best.

The bill has received public support from the Canadian Resource Centre for Victims of Crime and from Commissioner Julian Fantino of the Ontario Provincial Police. Let me quote from his remarks, “It is a regrettable but undeniable reality that the carrying of criminally concealed knives and violent knife crime itself has increased dramatically in Canada recently, with all too often deadly consequences. I am confident that your bill will prove to be a deterrent to such actions for some offenders”. He also said, “I am very pleased to see that Bill C-393 also addresses a development of sentence calculation which has crept into our justice system”. He has offered to appear at committee.

Finally, I recently spoke with the Moffitt family who are visiting Ottawa again today to let them know what was going on with the bill and to update them about the bill. I was again overwhelmed with the quiet dignity of this family who wanted to know how they could help make these improvements a reality. Mrs. Moffitt summed up all the deficiencies that her family had to encounter over the years when she said, “tell them we can do better than this”. She is right. We can do better and now is our chance to do so in these specific areas.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

The Deputy Speaker Bill Blaikie

The time provided for debate has expired.

The question is on the motion. Is it the pleasure of the House to adopt the motion?

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

Some hon. members

Agreed.

No.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

The Deputy Speaker Bill Blaikie

All those in favour of the motion will please say yea.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

Some hon. members

Yea.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

The Deputy Speaker Bill Blaikie

All those opposed will please say nay.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

Some hon. members

Nay.

Criminal CodePrivate Members' Business

May 28th, 2008 / 7:15 p.m.


See context

The Deputy Speaker Bill Blaikie

In my opinion the nays have it.

And five or more members having risen:

Pursuant to Standing Order 93, the division stands deferred until Wednesday, June 4, 2008, immediately before the time provided for private members' business.