Bill C-2 (Historical)

Tackling Violent Crime Act

An Act to amend the Criminal Code and to make consequential amendments to other Acts

This enactment amends the Criminal Code by
(a) creating two new firearm offences and providing escalating mandatory sentences of imprisonment for serious firearm offences;
(b) strengthening the bail provisions for those accused of serious offences involving firearms and other regulated weapons;
(c) providing for more effective sentencing and monitoring of dangerous and high-risk offenders;
(d) introducing a new regime for the detection and investigation of drug impaired driving and strengthening the penalties for impaired driving; and
(e) raising the age of consent for sexual activity from 14 to 16 years.

[The Chair, Conservative, Rick Dykstra]

I know Mr. Comartin is not here yet, but he has been sighted in the building, so we will endeavour to get started.

We've given all of us about 10 minutes. Before I actually call the meeting to order, I just want to note that there's coffee, juice, fruit, muffins in the back, so no one needs to go hungry this morning. I want to make sure everybody is feeling good, it's a positive meeting, and we get everything started off correctly.

Pursuant to the order of reference of October 26, the legislative committee will now resume its study of Bill C-2.

I just want to make a few brief remarks and outline a couple of things for this morning—and I guess potentially for this afternoon—in terms of where we are at. Obviously, we have finished with our witnesses. We have the ministry folks here this morning to respond to any specifics from our bill, to see what questions, if any, arise during clause-by-clause. So they are available for us to question and receive comment from.

I know I joked a bit about the fact that we do have some coffee and juice here this morning. I'd just make a very simple request of everyone. I think we've done a very good job at staying professional, staying focused on what we're trying to accomplish here. I would just ask the members of the committee to indulge for at least another day to do the same and keep everything as professional as we possibly can.

In terms of a couple of things with respect to clause-by-clause, before we proceed to take up this bill, I need to share some information with the members in regard to tie votes. As most of you are aware, the House of Commons Procedure and Practice explains the casting of votes. Basically, the chairman does not participate in debate and votes—only in cases of equality of voices. In such an eventuality, the chairman is responsible for breaking the tie by casting a vote. So I did want to just briefly mention that. I certainly don't want to anticipate any results in clause-by-clause, but I do want to inform members that if there are tied votes on clauses of the bill, I will vote in the affirmative to leave the bill in its existing form. If there are tied votes on amendments or subamendments, the chair will vote in the negative, in order to maintain the status quo and to keep the question open to further amendment, either here in committee or in the House at report stage. I obviously will notify the Speaker of any casting votes delivered on amendments.

There are a couple of other things with respect to debate on clause-by-clause. Obviously, the preamble and the short title I'll postpone until—welcome, Mr. Comartin—we've completed this specific clause-by-clause review. I'd like to point out that any member may ask questions about provisions in the clause or may debate any part of a clause, even if he or she has no amendments to propose.

Second, any member wishing to move an amendment should keep a number of rules in mind. One is obvious. Only members of the committee may propose amendments. I should say at this stage too—in fairness to everyone—a legislative committee works a little differently from a standing committee. We have a couple of subs this morning, so keep in mind that if and when your committee replacement comes back, you need to make sure that the individual subs back in to be able to vote this morning on any of the clauses. If you're not subbed in, obviously your vote will not actually be counted by the clerk.

No seconders are required to move amendments in committee, and obviously amendments may be proposed in either official language.

I'll just note that the committee will consider only one amendment at a time, so I'll try to keep us as tight as possible on that. Likewise, subamendments are obviously amendments to amendments, and the committee can have only one subamendment before it at one time. And when a subamendment is moved to an amendment, it's voted on first.

So I think that basically covers our procedures for this morning. I guess we can jump right into this. I'll just read for the record that the preamble shall be postponed pursuant to Standing Order 75(1) and also that clause 1, the short title, shall be postponed pursuant to Standing Order 75(1) as well.

Just before we get started, there are a number of clauses in this bill. I know it's been our past practice, at least at the justice committee, if there are no questions on specific clauses, to move a number of clauses at one time. I'll leave that open to the committee's jurisdiction, or at least your decision on that. Obviously, we need unanimous approval to do that, but I'd like to think if there are no amendments we could potentially shorten our timeframe by doing that.

Mr. Harris.

Tackling Violent Crime Act

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Mr. Speaker, as parliamentarians it is our job to create legislation that protects all Canadian citizens, so I rise in the House today to discuss the hypocrisy of some of the hon. members opposite.

As proven by the legislative committee on Bill C-2, the tackling violent crime act, my fellow colleagues and I are astonished by the continual flip-flopping of the Liberal Party. During the last election, the Liberals campaigned for stiffer penalties, yet now they have gone completely soft on crime.

Ten years ago, the former government imposed 20 minimum mandatory terms for gun related crimes, yet those members filibustered the former bill on minimum mandatory sentencing both in committee and in the House for a total of 414 calendar days.

When will the opposition parties learn that Canadians do not want to play games with their families' safety? Clearly, the opposition has a complete disregard for those who pay the highest cost in gun related crimes: the victims.

While the Liberals are simply not up to the job, we are getting on with the responsibility of keeping Canadians safe from violent crime.

Project Red Ribbon

[Daryl Kramp, Conservative, Prince Edward—Hastings, ON]

Mr. Speaker, impaired driving is a crime that is 100% preventable. That is why on November 13 volunteers for Mothers Against Drunk Driving from my riding of Prince Edward—Hastings launched their 2007 red ribbon campaign.

Last year this Conservative government introduced Bill C-32, which provided police with the tools to detect drug impaired driving. This bill, now part of Bill C-2, the tackling violent crime act, whose legislative committee I am proud to be a part of, authorizes police officers to conduct a series of tests to determine if a driver is impaired by a drug or a combination of alcohol and drugs.

There is general agreement in this House and in this country that drug impaired driving represents a serious criminal justice, health and traffic safety issue in Canada. Drug users are disproportionately involved in fatal accidents and impaired driving is still the number one criminal cause of death in Canada.

This Christmas season and throughout the year, I urge all Canadians to display a red ribbon in an effort to stop impaired driving.

[The Chair, Conservative, Rick Dykstra]

Thank you, Mr. Hoover.

I want to thank both of you, gentlemen. I'm sorry about the time constraints. I'm sure we could have spent another hour or so at this, but I want to thank both of you for presenting this morning and for being at committee.

Just to close this up as the witnesses are moving from the table, we've concluded our witness schedule, so we are going to move into clause-by-clause consideration next week.

Concerning amendments, the motion the committee adopted was that amendments to Bill C-2 be submitted to the clerk 24 hours before the beginning of clause-by-clause consideration, without precluding the tabling of additional amendments from the floor. In order for the office of the clerk to receive a copy of the amendments package submitted by the members for three o'clock on Monday afternoon—in both languages, I would add—the amendments need to be submitted to the clerk by no later than noon. So I'm asking for agreement that we can assume that all members agree to send their amendments to the clerk by noon on Monday to facilitate the clause-by-clause process.

Very good. Thank you.

We are adjourned.

[Douglas Hoover]

I think strong desire was expressed, both publicly and during meetings of senior officials, for reforms that specifically respond to the Johnson problem, as the minister stated on June 5 in his testimony and most recently again. Johnson created some conundrums in interpretation in each jurisdiction, and great concern was expressed that we address those. For the most part, provinces are very supportive of the legislation as it currently stands--maybe not all provinces 100%, but at this point we have not received, regarding C-2....

You're asking about Quebec? Again, I am uncomfortable speaking for any particular province. I would say overall there's a strong consensus that this bill is necessary.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

I simply have one question, and then I'll hand over the rest of my time to my colleague Mr. Murphy.

Is it your expert opinion that the provisions of Bill C-2 that are directly related to the dangerous offender system would pass a constitutional challenge? If so, why?

The rest of my time is for Mr. Murphy.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you, Mr. Chairman.

First of all, would you be able to tell us the annual number of individuals convicted for the first time of a crime found on the list in part 27 of Bill C-2?

Secondly, do you know the annual number of people convicted for a second time?

Thirdly, do you know the annual number of people convicted for a third time?

If you have access to these figures, could you tell us the percentage of these individuals who belong to visible minorities, or who are members of a first nation, who are women or people with an intellectual or physical handicap? In brief, I am referring to the four groups contained in our charter.

Do you have these numbers? If not, do you know how the committee could obtain them? Up until now, it appears the government has been unable to provide us with this data.

[Réal Ménard, Bloc, Hochelaga, QC]

As for you, Mr. Chairman, you are not authoritarian.

Mr. Landreville, I was in the process of paying tribute to your learnedness. What really pleased me was the link that you very clearly identified. You compared American society, which has relied on incarceration and has crime rates that have not declined as a result, and Canada. You did not provide statistics per 100,000 inhabitants for Canada, but we have heard that it ranges from 115 to 123.

I would like you to explain yourself very clearly. If I understand correctly, you are inviting us to reject Bill C-2. Based on my understanding, you say that it is not effective in terms of its objectives. I would like you to tell us more clearly why it is not effective and what legislative measures you would like to see adopted so that we can meet those objectives, in other words, making communities safer, while keeping in mind that the violent crime rate is not on the rise.

[The Chair, Conservative, Rick Dykstra]

Mr. Ménard, there's a lot of latitude here for discussion, but let's try to stay focused on Bill C-2 versus your opinions on the government. Thank you.

[Pierre Landreville, Emeritus Professor, School of Criminology, Montreal University, As an Individual]

Thank you, Mr. Chairman. I would like to thank committee members for allowing me to express my viewpoint on Bill C-2.

I am professor emeritus at the University of Montreal School of Criminology and a Research Associate at the International Centre for Comparative Criminology, the ICCC. I have taught penology and correctional policy since 1970 and have conducted research in those fields for more than 40 years.

My brief will focus on the section of Bill C-2 concerning Bill C-27. I would address two points regarding the bill in succession: first, clauses 40 to 51 concerning dangerous offenders and, two, clauses 52 and 53 on the recognizance to keep the peace.

I will start with the issue of dangerous offenders. The purpose of this part of the bill is to create a measure to neutralize multiple re-offenders. This is not a new concern. In 1908, England passed the Prevention of Crime Act respecting habitual criminals.

In 1947, Canada also passed an Act respecting habitual offenders or “habitual criminals”, which is very much based on the English act which had already been repealed. An offender determined to be a “habitual criminal” could be detained for indeterminate period. The Criminal Code provided that:

[...] an accused is a habitual criminal, a) if, since reaching the age of 18, he has previously, or on at least three separate and independent occasions, been convicted of an indictable offence for which he was liable to a term of imprisonment five years or more and continues to lead a criminal life, [...]

Clauses 40 to 51 of Bill C-2 are also similar to a more recent series of acts, passed in the United States in the early 1990s, commonly called “three strikes” laws, the best known and most used of which is that of California, which was passed in 1994. It is in fact a two—and three-strike Act. Briefly stated, it provides that, in the event of a second felony conviction, the sentence is twice the sentence that would have been imposed for that offence and that for a third felony conviction, the sentence is 25 years to life. On March 31, 2007, 41,503 offenders were imprisoned under that act. Over 90% of all convictions under the “three strikes” laws in the United States have been in California.

Habitual criminal legislation has failed for five reasons: first, it does not distinguish between those offenders who present a real threat to society, since it applies to a considerable number of non-dangerous offenders; second, it is not applied uniformly, thus causing serious fairness problems; three, it applies in a discriminatory fashion against minority groups; four, it has no significant impact on crime; and, five, it can result in a considerable increase in the prison population, particularly the population of older offenders.

Let me reiterate the first point. It does not distinguish between those offenders who present a real threat to society, since it applies to a considerable number of non-dangerous offenders.

In Canada, the Ouimet Committee (1969) examined the cases of 80 “habitual criminals” sentenced to “preventive detention” in penitentiaries in February 1968.

The committee first observed that:

The average age of the 80 offenders at the time they were sentenced to preventive detention was 40 years.

They concluded on this point that:

These figures tend to support the finding that one of the weaknesses of the application of this legislation is that it appears to be most often invoked against offenders at an age where violence is no longer part of their usual behaviour.

The committee also stated that:

Nearly 40 % of those sentenced to preventive detention appear not to have presented a threat to the safety of others; 2. Perhaps one-third of persons incarcerated as habitual criminals appear to have presented a serious threat to the safety of others [...] The Committee finds that, although the statutory provisions concerning habitual criminals were enforced to protect the public from certain dangerous offenders, they were also applied to a considerable number of multiple repeat offenders who may constitute a serious social embarrassment, but not a serious threat to people's safety.

Similar observations have been made about England's preventive detention and California's “three strikes” legislation.

Moving on to the second point, it is not applied uniformly, thus causing serious fairness problems. Once again, in Canada, the Ouimet Committee found in its study on 80 “habitual criminals” that:

45 [...] were sentenced in British Columbia and 39, that is virtually half the total number of those so sentenced, in the same city (Vancouver). The Committee feels that legislation the application of which is likely to vary to that degree should not be part of a rational correctional system.

The committee also observed the same disparity in the application of the dangerous sex offender law which existed at the time. Current dangerous offender legislation may also deserve the same criticism. In April 2006, 42% of criminals found to be dangerous offenders were in Ontario, compared to 9% in Quebec and 22% in British Columbia. California's “three strikes” legislation is not evenly applied either.

Moving on to the third point, it applies in a discriminatory fashion against minority groups. In Canada, we have no data on the application of habitual offender legislation to aboriginal persons, but we do know that they are over-represented at all stages of the correctional process, including in the application of the dangerous offender law. This state of affairs raises major issues and is of concern to all those who attach importance to the values of justice and equity. We know that aboriginal persons represent approximately 3% of the Canadian population, that they form 18% of persons admitted to penitentiaries, that they are even more over-represented in certain provinces. In 2003-2004, they represented 54% of persons admitted to Manitoba penitentiaries, and 63% of those admitted in Saskatchewan. Aboriginal persons also represented, in 2005-2006, 23% of offenders sentenced to life imprisonment or given indeterminate sentences. This over-representation of aboriginal persons in penitentiaries, combined with the fact that they enter penitentiaries at a younger age than non-aboriginals, means that they would be even more often affected by the measures under Bill C-2 concerning multiple re-offenders. It will be readily understood that the younger members of a group are when they enter a penitentiary, the greater chance they have of being convicted a third time.

Now, turning to the fourth point, this legislation has no significant impact on crime. Since they are rarely enforced in ordinary circumstances, habitual criminal laws cannot have an impact on crime. However, even where they are used on a broad scale, as in California, they have little or no measurable impact. Even though, in the 1990s, the crime rate fell more sharply in California than the U.S. national average, researchers who conducted a survey of the literature came to the conclusion that the drop cannot be attributed in any significant way to the “three strikes” law.

That takes us to the fifth point. This legislation can result in a considerable increase in the prison population, particularly the population of older offenders. If applied on a broad scale, multiple re-offender laws inevitably cause an increase in the aging of the prison population. On the one hand, longer sentences result in a rise in the prison population...

[Réal Ménard, Bloc, Hochelaga, QC]

I was not finished. Calm down! I have the floor.

Mr. Chairman, if we do not have the information by Tuesday morning, I say to the government that we will table motions for adjournment. That is what we will do. We have the right to have that information. If you do not want to give it to us, we will table a motion to extend our deliberations so that the government can invite constitutionalists to come and meet with us. If we do not have the information we require, we will not vote on the bill.

When the Conservatives were the opposition, there was never enough information available. Today, they are trying to make us vote whereas we know that the bill is potentially unconstitutional. May I point out to you that yesterday, we were ready to extend the debate in order to move to the vote but it was the Conservatives who got up to leave.

Therefore, there is a limit to making a travesty of democracy, to being pharisees and philistines. There is no point on voting on bills like C-2 if we cannot give the information to parliamentarians. I regret, but we are not faced with a privileged relationship involving private practice, the minister, and cabinet. I expect officials who have knowledge of constitutional law, who provided opinions to the minister, who are not from the private sector, who are paid with public funds, to give us that information.

Mr. Chairman, let me conclude by stating that if we do not have something in writing guaranteeing the constitutionality of the bill by Tuesday, we will table motion for adjournment after motion for adjournment.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I think what we are seeing here this morning is rather hypocritical. I remember very well that when the Conservatives were in opposition, they invoked the fact that we were elected, that we were parliamentarians, in order to have a right to all the information before voting.

What are we asking for? First of all, the minister is not a client. He is an elected official and is responsible for a department. Before voting on a bill, we have the responsibility of ensuring that we have all the information. Nine witnesses told us that this bill was not constitutional. I feel I am doing my job as a member of Parliament when I ask for information. If the minister appeared before us and said so, he should give it to us in writing.

Why do we not have faith in the word of members of Parliament? Ms. Jennings tabled an amendment saying that we would keep this information confidential. Is this not paid for with public funds? What is the point of voting on a bill like C-2 on accountability, on access to information, on transparency if you are not even able to give parliamentarians all the information they need? Is it unreasonable, as an elected official, to vote on a bill nine witnesses said was unconstitutional? Is it unreasonable to ask if this was investigated? If the minister said so, that is not enough. We need more information.

[The Chair, Conservative, Rick Dykstra]

Pursuant to the House of Commons order of reference of October 26, the Legislative Committee on Bill C-2 will now resume its study of the bill.

Good morning, everybody. Welcome back for our final session of this week.

Mr. Landreville, perhaps I could just let you know we do have a little bit of committee business to take care of before we turn the floor over to you. If you could bear with us for a few minutes, we'll get through that and then we'll certainly get started with respect to your presentation and questions to follow. So thank you.

When we finished off yesterday, Monsieur Ménard, you had the floor.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

I did not have a chance to speak to my own amendment when I moved it, so I appreciate the chair's providing me with that opportunity.

The issue of client-attorney privilege is well-known. The Parliamentary Secretary to the Minister of Justice and Attorney General of Canada is quite correct when he says that previous governments formed by both the Liberal Party of Canada and the Progressive Conservative Party of Canada—I don't believe another party in Canada ever formed the Government of Canada—have not waived the client-attorney privilege.

However, that privilege can be waived. The committee does have a right to call for the tabling of documents. Because of our concern that the confidentiality of the information continue to be protected, the Liberals have brought this amendment.

In the same way, when a committee hears testimony in camera or receives in camera documentary evidence, that evidence is not public. Every single person who assists in an in camera meeting and has access to the information is bound to keep it confidential. If there's a transcript, there is one transcript that remains in the office of the clerk, and members have to go to a specific office, sign in, and are only able to consult there.

If this committee determines that it supports this amendment, those would be the conditions under which the minister would be required to table all legal opinions on the constitutionality of Bill C-2, which he has received in the course of his responsibilities as Minister of Justice and Attorney General, and that information would be kept confidential.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Yes.

Further to discussions with our colleague Mr. Ménard, the Liberals will be proposing the following amendment:

That the Department of Justice be asked to

—and then we add on—

provide on a confidential/in camera basis, which protects advice to the minister, opinions in its possession relating to the constitutionality of Bill C-2 by 3:00 p.m., Friday, November 16, 2007.