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 House proceeded to the consideration of Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, as reported without amendment from the committee.

Speaker's Ruling

[The Speaker, Peter Milliken]

There are five motions in amendment standing on the notice paper for the report stage of Bill C-2.

Motions Nos. 1 and 3 to 5 will not be selected by the Chair as they could have been presented in committee. The remaining motion has been examined and the Chair is satisfied that it meets the guidelines expressed in the note to Standing Order 76.1(5) regarding the selection of motions in amendment at report stage.

Motion No. 2 will be debated and voted upon.

I shall now put Motion No. 2 to the House.

Motions in amendment

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

moved:

Motion No. 2

That Bill C-2 be amended by deleting Clause 42.

Mr. Speaker, thank you for the ruling on this amendment indicating that it is within the proper scope of the rules and admissible.

The amendment deals with the specific section of a very large bill, an omnibus crime bill, and specifically with that part of the bill that deals with the dangerous offender designation in the Criminal Code.

Just quickly, the balance of Bill C-2 encompasses five separate pieces of legislation that were before this House in the previous parliamentary session. The dangerous offender section at that time was Bill C-27. It has now been incorporated into Bill C-2.

We had commenced work on that in a special legislative committee prior to prorogation. The prorogation by the government of course ended that bill, as it did the other four, three of which by the way were in the Senate, and the fourth one was out of committee at report stage in the House.

So now, because of what I think is a very foolish decision but a very political decision on the part of government, we are having to go back through all of those four bills and we have wasted a significant amount of time.

The government is historically very proud to stand in this House and accuse the opposition parties of delay. Of course, what has happened here has been entirely on its desk and it is something of which the Conservatives should be ashamed.

To come back to Bill C-27, as it was then and now that part of Bill C-2, the dangerous offender section of the Criminal Code has a history going back in this country to 1978 at which time it was incorporated.

I do not think there is any disagreement about this no matter which political party one belongs to, that there are individuals in our society that we are not able to cope with in terms of rehabilitating them. They commit serious, oftentimes heinous, violent crimes against other residents of Canada. When we use our traditional attempts to deal with them by way of prison terms, oftentimes psychiatric or psychological treatment programs, they are not successful.

Our psychiatrists, our psychologists and our best experts admit there is a very small number of individuals that we simply, as a society in terms of our psychological and psychiatric treatment modalities, are not able to treat and rehabilitate to the point where they are no longer a risk to society once released from our prisons. The dangerous offender section was introduced into the Criminal Code to deal specifically with those individuals.

Based on some very good research from the Library of Parliament, since 1978 we have had 384 individuals, up until the spring of 2005 so it is a bit more now, all male, designated as dangerous offenders. It is interesting to note that of those 384, 333 as of April 2005 were still in custody, still in prison. Only 18 had been released and were on parole. The balance of approximately 33 died in prison. I think this is the point that we need to recognize.

This designation, unlike a conviction for first degree murder and a life sentence, is in fact a life sentence in the 90 percentile of the cases. These individuals never get out. It is a recognition that we are not capable of dealing with them. They stay in custody, in prisons, for the balance of their lives and literally, as I have said, die in prison. That is what we are dealing with when we are dealing with a dangerous offender designation.

As I indicated earlier, there are no women who have been designated, up until April 2005. There are a couple of applications outstanding against women currently.

One of the other points that I would make that comes out of the research done by the library is that a full one-fifth, 20%, of all the individual criminals who have been designated are from the aboriginal population, from our first nations.

There is no question, and we see this more when we look at statistics in the United States, that subgroups within our society often times are individuals who are more targeted and receive greater punishment.

I am not going to suggest for a minute that the designations in those cases were inappropriate; they may or may not have been. However, that is the reality, given that our aboriginal population in this country is roughly 3% of the population but slightly over 20% are designated as dangerous offenders.

We know that this is a section of the Criminal Code that we would use, obviously, very sparingly. The issue of the constitutionality of this section has been to the Supreme Court on a number of occasions and reviewed also by a number of our appeal courts at the provincial level.

The message that comes out very clearly is that it is to be used sparingly, that it is to be used with extreme caution, that the individuals who are confronted with this are to be given the greatest amount of doubt as to the usage against them because of the consequences.

I want to repeat that the consequences in more than 90% of the cases are that these individuals, once designated as dangerous offenders, will stay in prison for the balance of their life. They will never get out.

Faced with that, if we look now at the bill that is before us, Bill C-2, the government has introduced into clause 42 a provision for a reverse onus. For those in the public who do not have a law degree and do not fully appreciate this, that is saying, under these circumstances, to the individual criminals, “If you meet this criteria, you have to prove to the judge who is hearing the case for the designation of dangerous offender why you should not be held in custody in prison until the rest of your life”. That is really what they will have to do.

That flies in the face of the charter. This section will not survive a charter challenge. Under those circumstance, and Mr. Speaker, I see you signalling that I have only a minute left. I thought these were 20-minute sessions. No. That is unfortunate because I had a lot more that I wanted to say.

My amendment, pure and simple, would delete the reverse onus from this bill because it would not survive a charter challenge. We are going to have tremendous litigation on this and at the end of the day one of our superior courts, or even the Supreme Court of Canada, will strike this section down. The amendment would take care of that right now and we could save all that trouble.

[Gilles-A. Perron, Bloc, Rivière-des-Mille-Îles, QC]

Mr. Speaker, I listened carefully to my colleague across the way. One thing he said really shocked me. What struck me is when he said that 3% of the population is aboriginal and 20% of them are designated as dangerous offenders.

Would it be right to conclude that the crime rate among aboriginal nations is higher than among other groups? If so, what are the causes of this high crime rate and what can we do about it?

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, I am always proud to say that our criminal justice system is as good as any in the world and maybe the best in the world. However, from a number of studies, including a book that was published by one of the professors at the University of Windsor law school, the reality is that discrimination enters into our system. It is systemic. It is not overt. It is subtle but it creeps into the system.

I will not suggest, by any means, that all cases are like this, but what happens is that the police, prosecutors and, yes, the judiciary on some occasions come with a hidden bias and the process starts. Unfortunately, because of the general economic status in which our first nations find themselves, they end up being disproportionately found.

All of the experts, psychologists and psychiatrists with whom I have spoken have absolutely rejected the suggestion that the ratio of serious violent offenders is any greater within the aboriginal population than it is within the general population. We saw that in the Callow case in Toronto. The prosecutors for the province of Ontario in that case should have brought a dangerous offender application against him and they did not.

We can go through any number of cases and ask why they did not. That is really where the solution is to the use of this, not in trying to force individuals with the reverse onus to show why they should not be held. There is that subtle discrimination and so we end up with that kind of a statistic.

[Ken Epp, Conservative, Edmonton—Sherwood Park, AB]

Mr. Speaker, I would like to comment on what the member has just said. It is absolutely incredible to me that he is opposed to this so-called reverse onus.

The problem with his argument is that it seems as if, the way it is worded, the accused needs to prove why he should not be deemed a dangerous offender. However, the fact is that the accused has already proven it. The individual was arrested, charged and convicted once and then arrested, charged and convicted twice, and then charged and convicted the third time. The criminal has already proven it.

I do not know why the member feels that it is somehow an unreasonable thing to say that since the individual has proven himself or herself to be dangerous, we will classify him or her as a dangerous offender because the individual has proven that he or she is. What the reverse onus would do is give the accused yet one more chance at that stage. Surely the member would not be against that.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, that is just too simplistic. I do know the member is from Sherwood Park, as my son is living in his riding. I have a great deal of respect for him but his analysis is too simplistic. Our courts have made it clear that this section is to be used rarely because of its consequences.

I want to give one example of the deficit in this bill. A provision in the bill says that a person must have been convicted of three offences for which the person must have received more than two years in prison. One of the offences that is included in the list in Bill C-2 is assault causing bodily harm. That can be a fairly minor assault. I do not want to take away from it because any assault, obviously, is extremely offensive to the individual victim, and I recognize that, but we get situations where people get into bar room fights or disputes with their neighbours and there is an injury. It may be a fairly minor one such as a black eye or bruising to the face and that kind of thing.

Usually, because the person has an alcohol or drug problem, they will have a series of these assault charges and, ultimately, the judge will send the person to prison for more than two years, then a second time and then a third time, but these people are not dangerous offenders. They are really petty criminals. There is a real exposure within these amendments being proposed in Bill C-2 that will result in a large number of people ending up going through these designations and having to prove why they should not go in. That is not the way the system works and it is not the way the system should work.

[Rob Nicholson, Conservative, Minister of Justice and Attorney General of Canada]

Mr. Speaker, I am pleased to speak at the report stage of Bill C-2, the tackling violent crime act. I was honoured that my colleague, the member for Haldimand—Norfolk, the Minister of Citizenship and Immigration, was good enough to second the motion because of her commitment to tackling violent crime.

I must say that it has been very helpful to me, to the government and, ultimately, to the people of Canada that there has been such tremendous support on this side of the House. I have thanked members privately and I now thank them publicly. My colleagues, the members for St. Catharines, Niagara West—Glanbrook, the chief government whip and my other colleagues have been consistent in pushing this agenda forward. I thank them but, more important, I think the people of Canada thank them for their commitment to fighting violent crime in this country.

The bill is one that has been thoroughly studied, which is one part on which I agree with the hon. member for Windsor—Tecumseh. However, anyone looking at the records of these particular bills will agree with me that the government was on its own last spring trying to get these things through.

We had five bills that had been kicking around since the beginning of this Parliament. They were thoroughly studied and some of them were in the House of Commons for over a year but none of them were passed.

I can say to the members of the NDP that it would have been real helpful last spring if they had been sending a message down to the Senate. I made the point about the Liberals that if they had picked up the phone or walked down the hall to get some of these things through or helped us to expedite these in the House of Commons, it would have been very helpful, but they were all clear that it was our problem, that if we wanted to tackle violent crime and get our bills through, it was our problem.

Yes, it was a bit of a problem that these five bills, all of which would have helped to make our communities safer, our streets safer and would have stood up for innocent victims of crime, did not get through.

What we did over the course of the summer was put them all together and we have reintroduced them into the House of Commons.

I know the committee has done very good work in terms of calling witnesses before them and listening to what they had to say. Some of those witnesses were representatives of the police forces in this country. There was the prosecutorial perspective, the bar associations and legal academics. I, of course, was pleased to appear with representatives of the Department of Justice.

I think it was good. We reintroduced our proposal to have minimum prison sentences for serious and repeat firearms offenders. It would be five years for a first offence and, if the offender does not get the message, it would be seven years the second time around. I think it sends the correct message that guns are a problem when they are used in the commission of a crime.

In addition, we introduced a bill regarding a reverse onus on bail, which is also in this bill. We propose to strengthen the bail system so that those charged with serious firearms offences are kept in custody before trial, unless they can prove they do not pose a threat to the public. I have had people from coast to coast in this country tell me that sends out the right message to victims, to neighbourhoods and to witnesses.

We have dealt with impaired driving and getting rid of the two beer defence that was so problematic to people trying to prosecute impaired driving. There is no question about that.

There are good provisions in there. One of my favourites is raising the age of protection from 14 to 16 years of age, to protect 14 and 15 year olds from adult sexual predators. Somebody said that we were trying to get laws into the 21st century. That is something that was left from the 19th century. This should have been changed a long time ago. It did not get changed in the spring but we are absolutely committed and determined that it will get passed as part of this bill.

The other part of the bill relates to dangerous offenders, and what we have done, I believe, is very reasonable. We have asked for a declaration to be made by the crown attorney advising the court whether he or she will be bringing a dangerous offender application. This declaration is intended to ensure a more consistent use of dangerous offender sentences by crown attorneys in all jurisdictions. I think that is reasonable and it is a step forward in the right direction.

What we have said, and again I think most Canadians would agree with us, is that for an offender convicted of a third designated offence, a third serious offence, in a narrow and proportionate list of the 12 most violent and sexual offences, it will trigger a dangerous offender designation. Those offenders will be presumed to be dangerous offenders unless they can prove otherwise.

These are individuals who have been convicted three times. All we are saying is that the onus is on them to show why they should not be presumed to be dangerous offenders. I believe most Canadians would say that is very reasonable.

[An hon. member]

All Canadians.

[Rob Nicholson, Conservative, Niagara Falls, ON]

My colleague from St. Catharines says “all Canadians”. No. We heard from the NDP members that they do not support this, so it cannot be all Canadians, but I think most Canadians will say yes to this and will say that we are on the right track in terms of protecting Canadians.

I want to be absolutely clear for those members and all hon. members of this House. We indicated when we introduced the bill that any attempt to sabotage the bill, any attempt to gut it or water it down, would be considered a confidence measure. I do not want there to be any misunderstanding at all in the House. If the NDP amendment to take this out of the bill passes, we will consider that a confidence measure, and we will go to the people of Canada and let them decide if they want to get serious about fighting violent crime in this country, let there be no mistake about it.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Mr. Speaker, in terms of my comment, we do not have a great relationship with the Senate. I do not know if the Minister of Justice appreciates that. It is rather difficult for us to pick up the phone and call the senators since we do not talk to them. We just want to abolish them.

With regard to the reverse onus section, without exception in committee, except for the minister himself, every witness who came before the committee who had any legal expertise at all made it very clear that the reverse onus section would not survive a charter challenge. We did not have one person tell us otherwise.

I am asking the minister on what basis he is saying this other than his own opinion. I respect his opinion. He and I are graduates of the same law school, the best law school in the country, at the University of Windsor. I respect his opinion, but I think that on this one he is wrong. I am wondering if he has any other opinion from a constitutional or charter of rights expert who says this will survive a constitutional challenge.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, the hon. member covered a number of different areas. Certainly in regard to that part of his comments about the University of Windsor being the best law school in this country he will get no disagreement from me. I want to say that I do not usually disagree with the NDP. I was thinking of the hon. member for Brant. He knows what I am talking about and we can have a unanimous motion on that.

In any case, the member mentioned that he has no relationship with the Senate, but I think he will admit, because I remember seeing in print comments from him that if we had introduced the other four they would go easily through the system, that it is not that easy. That is what I was saying. If there was any help that we could have had last spring it would have been much appreciated, or if there is any help that we can get this fall in getting these through both houses of Parliament it would be much appreciated.

With respect to the constitutionality of these, I am sure he heard from the officials at the Department of Justice. I presume he asked that question of them. In my examination of bills, I always watch for two things, and they are very important to me. I want every piece of legislation to satisfy the Canadian Charter of Rights and Freedoms, and of course I want to make sure that it complies with the Canadian Bill of Rights. Both of those documents are very important. I have satisfied myself on that. Indeed, I would not have introduced the bill into Parliament if I did not believe that it satisfied both of those important documents.

[Robert Thibault, Liberal, West Nova, NS]

Mr. Speaker, could the minister clarify the following for Canadians? When he talks about the area of the twelve most violent crimes and the three offences, does he mean that the three offences are in that category and that this does not apply to someone who has had one offence in that category and then two lesser infractions since?

I have a second question, if he has time. His expert who gave testimony, Mr. Stanley Cohen, said that the legislation in question was “not manifestly unconstitutional”. Not being a graduate of any law school, I am not sure what that means. I would like the minister to explain it. It sounds to me rather weak and is not like a full-fledged endorsement. Could the minister clarify those comments?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Mr. Speaker, I would be pleased to provide the hon. member with a graph so that he has the exact enumeration of all the designated offences within the dangerous offender section.

More importantly, he asked whether it does not manifestly comply; whatever the wording was, I think I got the gist of it. I can tell him that I believe this complies with the Charter of Rights and Freedoms and I believe this complies with Mr. Diefenbaker's Canadian Bill of Rights.

Certainly I can say that there is no legislation to which I would lend my name and my office as Minister of Justice, nor on behalf of the government would we introduce any piece of legislation, were we not convinced that it complied with the Charter of Rights and Freedoms and the Canadian Bill of Rights. I hope that satisfies the hon. member.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Mr. Speaker, it is a great pleasure for me today to stand behind our justice minister and speak in support of the great bill he has put forth. I can tell members that over the last couple of years I have heard from people in my riding and through my surveys and the number one issue has been the tough on crime issue. A recent survey I did just came back and that is no longer on the list. The people of my riding are very happy with what has been put forth here in the House. They know this government is doing good things.

Would the minister explain a little more for our colleague from Windsor—Tecumseh about why someone who has committed three dangerous crimes and has obviously designated himself as a dangerous offender should have to explain to the rest of us in this country why he is no longer a dangerous offender?