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.

Tackling Violent Crime Act

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, I will be quick.

I congratulate my colleague on her speech. She clearly showed us how much the Conservatives are trying to give the impression that they are taking a different approach. Yet, in fact, many bills had already gone through several stages during the last session and are now included in this bill.

I would like to know whether the Conservatives should not also be doing something about prevention and going much further on the whole issue of crime, rather than giving the impression that punishment is the answer. Should we not be paying even more attention to prevention in our approach to justice?

[The Acting Speaker, Royal Galipeau]

The hon. member has 10 seconds to respond.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I thank my colleague for his question.

In fact, as the Bloc Québécois and Quebec society are doing, if the government were to approach—

[The Acting Speaker, Royal Galipeau]

I am sorry, but the hon. member for Burnaby—Douglas now has the floor.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, also known as the tackling violent crime act.

I have significant problems with this bill and with the Conservative government's approach to crime in general. The Conservatives are adopting a U.S. style crime agenda that says they are tough on crime but begs the question of what measures are actually effective in reducing crime and making Canadians safer. There is a lot of sloganeering but very little that shows these measures would actually make Canadians safer and give us more effective crime legislation.

The measures in Bill C-2 focus on punishment and incarceration. We know this is the least effective part of an approach to reducing crime in our society. Incarceration does not work to reduce crime and more prisons do not reduce crime. The evidence shows that, at best, there is no relationship between increasing incarceration and reducing crime or, at worst, that these approaches increase crime and become counterproductive.

Many U.S. jurisdictions that went down this tough on crime incarceration road have recognized that these measures do not work and have begun to undo them. As has been mentioned already this morning in debate, a recent report titled “Unlocking America” exposes the fact that incarceration has not worked to reduce crime and, in many cases, has increased the violent crime rate.

What does work? We know that more enforcement, more police on the beat, increasing the possibility of being caught and increasing the possibilities for detection and apprehension do work. Unfortunately, this is one place where the Conservatives are breaking a promise to increase the number of police on the beat in our communities.

We know that community policing, increasing the opportunities for police to develop real relationships with members of the community, also reduces crime. We know that prevention measures work. Working to address issues like drug addiction, family dislocation, poverty and providing parenting support, all those measures go toward reducing crime in our society.

We know that parole and release programs work. I was very lucky to have had the opportunity to sit in on a support group for sex offenders in the Vancouver area. I saw the kind of work that happens in that kind of setting. I was very impressed with the way that session proceeded and the kind of support that was being offered. I was also very concerned to hear from those folks that access to psychiatric and psychological support was very limited in the Vancouver area.

We also know that restorative justice programs work. Those programs seek to help offenders assume responsibility for their crime and restore the relationships that have been broken in the community because of that crime. We need more of those programs.

COSA, Circle of Support and Accountability, is a Canadian pioneered post-release program that matches community members with offenders. It is a support and accountability mechanism. Sadly, this program has not received the kind of support it deserves from the government, especially when other countries have adopted it.

Bill C-2 includes provisions in the old Bill C-10 on mandatory minimum sentences for crimes committed with a gun. We know that mandatory minimum sentences, of themselves, do not reduce crime. They do, however, reduce or eliminate judicial discretion, which is the ability of a judge, having reviewed all the evidence and knowing the person involved, to make a decision based on the facts of the case and of the individual involved. This is an important principle. I do not believe there is one judge sitting on the bench who wants to see serious crime go unpunished.

The cost of keeping someone in prison is $94,000 a year. Evidence shows that programs that support someone on parole or a drug treatment program for an addicted criminal are 15 times more effective than incarceration in ensuring he or she does not reoffend.

In testimony before the committee on Bill C-2, the president of the Canadian Association of Elizabeth Fry Societies, said that the government must stop using prisons as a substitute for mental health services, public housing or shelters for women escaping violence.

Bill C-2 also includes a reverse onus on dangerous offenders designation, that it would kick in after a third offence and that there would be a presumption that the person was a dangerous offender. It would be up to the offender to prove he or she was not a dangerous offender. When we are talking about a dangerous offender designation, we are talking about life in prison.

Reverse onus has very serious implications for our criminal justice system. Having reviewed the testimony presented at the standing committee, I am convinced, as were many of the experts who testified, that this section of the bill would not survive a charter challenge.

When the state is seeking to jail someone for life, the burden should be on the state to prove the necessity of that imprisonment. That is the case with the current law. To put this burden on the person who has been convicted is unjust, to put it simply. It would only increase the inequity of our criminal justice system where wealthy people would be able to muster the resources to mount a case and everyone else would be more likely to fail because they would not have the money to do so. Legal aid costs would skyrocket given the huge costs associated with this type of process.

Why does the bill suggest measures of automatic designation of dangerous offenders only after a third conviction? Surely, if someone is a dangerous offender, we should be looking at dealing with them sooner and ensuring the system has the resources to do that sooner.

Reverse onus has other serious problems. Judicial discretion, which I have already spoken about, would be removed. It would eliminate the ability of the accused to remain silent and it would incarcerate people on the basis of what they might do rather than what they have done. Our ability to predict behaviour is notoriously poor. What it boils down to is essentially a measure of preventive detention.

I want to support very strongly the motion put forward by the member for Windsor—Tecumseh to delete the provisions of reverse onus that are included in Bill C-2.

I also want to point out that aboriginal people are already overrepresented among those who have been designated as dangerous offenders in Canada. Twenty per cent of the dangerous offenders are aboriginal and this would increase as a result of the bill. Something is seriously wrong with this measure when 20% of those subject to it represent a group that only represents 3% of the total population of Canada. This legislation would only make this problem worse and it would also increase the family dislocation and social costs that aboriginal communities already experience because of incarceration rates.

Bill C-2 also includes measures on the age of consent, and I have already spoken extensively about this. I believe the existing age of consent legislation is excellent and comprehensive legislation. This bill would criminalize sexual activity for young people, especially those 14 or 15 years of age. No matter what we think of young people being sexually active, I do not believe the criminal justice system is the place to deal with that issue when a consensual, non-exploitive relationship is involved.

We must be smart on crime. We know enforcement, parole, community programs, social programs, addressing inequality and a change in our approach to drugs do work. Drugs are a significant factor in both petty crime and serious violent crime. Alcohol prohibition did not work and it caused exactly the same problems that we now face due to drug prohibition. We need more treatment programs for addictions and more harm reduction measures, not more jail time. That does not work.

Bill C-2 goes in exactly the wrong direction. It buys into a model that has been proven to have failed in the United States where many jurisdictions are already seeking to undo the damage done by this exact approach. I have very serious reservations about this legislation.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I must admit that I am greatly troubled by some of the comments the hon. member just made.

We see in our society the need for the types of protections that are in the tackling violent crimes act. I want to go back to a couple of the things he said, specifically around the reverse onus for dangerous offenders.

We see very few examples of people who deserve a dangerous offender designation but there are times when people should have had that designation but the Crown was not able to achieve it because it was disadvantaged from the get go on that.

I really believe there is no greater role for our Parliament than to ensure the protection of Canadians. A very small number of people in our society are predators and this legislation would protect against them.

This legislation is nothing like anything in the United States. I understand that is popular for the NDP but when we have people like Clifford Olson, who should have a dangerous offender designation but does not, he can still apply under the faint hope clause for parole. Can members imagine Clifford Olson getting parole? That is because that is the way our system works right now.

We need these changes. We need to protect our society against this very small number of individuals who should be labelled as dangerous offenders. I know the constituents in my riding support it.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, it is very unlikely that Clifford Olson will ever get out of jail as a result of a parole hearing.

The problem is that if the Crown does not have the resources it needs to declare someone who is a dangerous offender a dangerous offender, then we should be ensuring that the Crown has the resources it needs to get that designation, not changing the onus over to the accused, someone who likely has very little resources to do that kind of job.

We need to ensure that the Crown has the resources it needs to do its job appropriately. Nothing in this bill would allow the Crown to do a better job of that or to make that designation stick if that is the problem with the current situation. That is where we should be addressing this, rather than doing the reverse onus and making it up to the person who has been convicted, who generally will be someone without any resources, to defend themselves against that kind of situation.

The burden on legal aid will be significant in all of this because many of the people who will find themselves in this situation will depend on legal aid and I do not believe we have the resources in those kinds of programs to accommodate the kind of defence that will be necessary. I think there will be a huge cost to our governments to provide those kinds of resources.

The reverse onus on a dangerous offender designation is exactly the wrong way to go. The state should assume responsibility for taking on that designation, rather than putting it on someone who we know is not likely to have the resources to do that effectively.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I am pleased to see you here this Monday morning. I have two short questions.

The Bloc is not concerned so much about reverse onus on the third offence as about the fact that the government is tackling the wrong priorities. Would the government not have done better, for example, to look at the whole parole system and invest in fighting poverty?

Does my colleague not find it sad that the Minister of the Environment is not inviting his other colleagues to Bali so that there is a very broad coalition and the voice of the people is heard? Is this not a black mark against the Minister of the Environment? This minister hurts me deeply.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I agree that our parole system is one of the most effective aspects of our criminal justice system and that it could be even more effective with better resources, which is something we should be paying attention to in this place.

There is great hope in ensuring that someone can reintegrate into society effectively. We should be doing everything we can to ensure that process takes place and that the necessary supports are there.

As for the minister in Bali, I agree 100%.

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

Mr. Speaker, I am pleased to debate at report stage this omnibus criminal law statute. The government made a decision before the session opened that it would package together in one statute approximately half a dozen criminal statute amendments, most of which had already been through the House of Commons and into committee.

As for those parts of the bill that have already been through the House, the justice committee did not spend an undue amount of time in reviewing them, nor did we seek witnesses on them since the parliamentary record deals reasonably adequately with those other components.

The one part of the bill that Parliament has not had an opportunity to look at is the part on the provisions dealing with dangerous offenders. The amendments here tweak or modify the provisions. I want to make three comments in the limited time available so that my views are clear.

Certainly for my constituents I want them to know, and I would like the parliamentary record to show, that are a couple of issues which may be cause for public debate in the future or perhaps in the other place.

First, the name of the bill is slightly pretentious, as it purports to tackle violent crime. I can understand where that thinking has come from, but I suggest that if we as a society are going to tackle violent crime we had better address the causes of crime.

I think most people would accept that the Criminal Code itself is not the cause of crime. The procedures in the code are not the cause of crime. The real causes are societal. They are out there and they are real. This statute really does not do a thing to address the societal causes of crime. It draws the line clearly in the sand and it alters the procedure, but in terms of its impact on the causes of crime, and therefore on crime in the future, the future will have to assess that.

I regard the attempt in this bill to deal with the causes of crime, although I think it does not do it, as being a little like trying to fix a leaky roof from the underside of the roof. It cannot be done. If someone is going to fix a leaky roof, it has to be done from the topside. We have to deal with where the leak is, just as in criminal matters we have to deal with crime and focusing on the causes of crime. It cannot be done at the end of the pipeline. It has to be done at the beginning. I know that most Canadians buy into that.

My second point has to do with the constitutional protections inside the bill. We are dealing with a criminal statute here. While many people will say that we are dealing with criminals so let us just put them in jail and be done with it, the fact is that before these people are convicted they are citizens just like me and everyone else in this chamber. We expect that our citizens will be accorded the fairness and the legal protections that have been inherent in the Canadian justice system and our Constitution virtually forever. Part of our job in this House is to make sure that continues.

The first principle is the principle of “fundamental justice”. One of those principles that is protected by section 7 of our Charter of Rights and Freedoms is the right to remain silent. In this particular new provision involving dangerous offenders, imposed in the procedure is a reverse onus, a presumption. It states, and I am paraphrasing, that if a person has been convicted three times of offences which carry a sentence of two years or more, that person will be “presumed” to be a dangerous offender.

If, under our Constitution, a person has the right to remain silent in criminal procedures, the imposition of this presumption effectively takes away that right to remain silent because one cannot rebut the presumption unless one breaks one's right to remain silent.

In this particular case, the new procedure allows the judge some discretion in not finding the person to be a dangerous offender, but is it enough? In my own judgment, it is borderline. I think it comes so very close to breaching the charter protections that I was very cautious about it. In the end, I think I just barely accepted that it withstood scrutiny. I am not so sure that the legal fraternity in Canada or the other place will view it the same way, but they will have the benefit of our parliamentary record and our debate on it.

The second issue is constitutional in nature and also has to do with protection, not protection from criminals but the legal protections that we all have under the Constitution. In regard to imposing the reverse onus on the offender in this case, I should point out that until now it has not been a reverse onus. Every element of showing someone to be a dangerous offender had to be proved by and shown by the Crown. A pretrial assessment and a lot of procedural protections and judgments are brought into the process.

However, until now, the burden has been on the Crown to prove it. If this section reverses the onus and says that the person is presumed to be dangerous and now must disprove it, my question, to which we have to find an answer, is this: how does the person alleged to be a dangerous offender know the particulars that have come to make him or her dangerous, the particulars that allow that person to meet the threshold of the definition that he or she is dangerous?

The new statutory provisions do not take any steps to insist on the provision of particulars by the Crown as to why the person is dangerous. There is simply a presumption that he or she is dangerous. I believe that this does cross the line. If, in the procedure that is out there, the officials involved begin to rely on the presumption, they will fail to meet a standard of disclosure. Disclosure is part of a procedure that will take away, potentially for life, the freedom of the convicted offender. The courts and a fair-minded assessment under our Constitution will find these procedures deficient.

In order to rectify this, I did propose an amendment at committee. It was fairly discussed at committee. In the end, it was not adopted. In my view, this potentially would require an amendment to section 753 or section 754. All it would require is a statement in the code that in relying on the presumption it would be necessary for the Crown to provide a list of particulars, an itemization or a description of the particulars on which the Crown is relying and on which the judgment that the person is a dangerous offender is based. This would cure that particular problem for me.

If we have all been right, and I hope that we are right in this House, that the general presumption meets the charter test of fairness and does not offend the principles of fundamental justice, then this bill will have a chance to see it work itself out, even though I think we can find much better ways to address the causes of crime and I think we should be doing it.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, I want to ask the hon. member a couple of questions, because I do think that this comes back to protecting the community, our families and our children.

The sex offender registry in Ontario was enacted by Christopher's law. It resulted from the death of Christopher Stephenson, a young boy who was at a shopping mall with his mother and sister and was abducted by a gentleman who had committed not his first, second, third, fourth, fifth or even his sixth violent offence, but his seventh. He had just been released from a seven year prison sentence and had received parole after a much shorter period of time. He abducted this young boy, violently raped him over a period of days and then killed him.

That offender never should have had the opportunity to abduct this young boy. He never should have had the opportunity to destroy these families' lives. He never should have had the opportunity to impact his community in the way he did.

We all grieved that death, but we could have prevented it. We could have prevented it with laws like reverse onus for dangerous offenders. I ask all members in the House to stand behind this bill, because we need it for people who truly are violent offenders. They are small in number, but we need to ensure they do not endanger our society.

I ask the member why he would not support such a position.

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

Mr. Speaker, I agree with the hon. member and his assessment of the individual in that case, the convicted perpetrator of that horrible crime, but here we are designing a system to respond to the real exigencies across the country.

It is true that in the 1970s and 1980s there were many egregious failures of the criminal justice system in dealing with parole, interim release and bail. I note the number of statutory amendments that have come through this place over time, one of which was to address the circumstances described by my friend involving the victim Stephenson.

We believed we had done a good job of fixing the Criminal Code and process and the sentencing process. By and large, I think, the House, the corrections system, the justice department and provincial counterparts all have done a very good job of making the system work in a much safer way. I once referred to some of these people as the human counterpart of nuclear waste and nuclear fuel when they are out there on our streets and are a danger to the public.

I think we have done it better. This bill is an attempt to improve it. I just am not a loud, vocal supporter of the methods and procedure used in this particular case.

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

Mr. Speaker, I rise to ask my friend a question in the proof that in the Liberal Party we sometimes have differences of opinion. My question is with regard to this very aspect and his good suggestion for amendments to sections 753 or 754.

First, does he take some comfort in the comments of the justice officials with respect to the Grayer decision and the right to silence being protected by this legislation we have before us? Second, although probably out of humility he may say no, is he hopeful, because of his strong appearance before the committee and his strong recommendation to DOJ officials, that his amendment will make its way into the Criminal Code some day?

[The Acting Speaker, Royal Galipeau]

The hon. member for Scarborough—Rouge River should know that there are 30 seconds left to respond.

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

Mr. Speaker, no, I do not think the Grayer decision cited by my friend adequately deals with the issue that was raised. There is a certain pride in authorship that officials take when they present legislation. Always they are reluctant to accept that there might be a flaw in it.

However, at some point, if my instincts are correct, there may be a need for some amendments. There certainly will be some constitutional challenge, but in the end Canadians will get the laws they deserve and hopefully we all will have done our job in this place.