Bill C-14 (Historical)

An Act to amend the Criminal Code (organized crime and protection of justice system participants)

This enactment amends the Criminal Code
(a) to add to the sentencing provisions for murder so that any murder committed in connection with a criminal organization is first degree murder, regardless of whether it is planned and deliberate;
(b) to create offences of intentionally discharging a firearm while being reckless about endangering the life or safety of another person, of assaulting a peace officer with a weapon or causing bodily harm and of aggravated assault of a peace officer; and
(c) to extend the duration of a recognizance to up to two years for a person who it is suspected will commit a criminal organization offence, a terrorism offence or an intimidation offence under section 423.1 if they were previously convicted of such an offence, and to clarify that the recognizance may include conditions such as electronic monitoring, participation in a treatment program and a requirement to remain in a specified geographic area.

[C/Supt Ross Bingley, Bureau Commander, Organized Crime Enforcement Bureau, Ontario Provincial Police]

Thank you, Mr. Chairman, and thank you very much for having me here today.

The Ontario Provincial Police supports all initiatives that enhance public safety. The Ontario Provincial Police welcomes the intent of the changes to section 270, the offence with respect to assaulting peace officers, but believes the changes would be more adequate if the new sentencing provided had a minimum sentence.

Public safety may be enhanced with the extension of recognizance conditions for a two-year period if imposed conditions can be monitored for breaches. The working group looking at policing justice strategies to address this issue of the repeat violent offender may wish to review the provision as to its potential use with respect both to intelligence and to containment.

Available policing capacity to use this provision is a factor that will need to be considered. Policing capacity and available resources may limit knowledge as to breaches of accused persons, weakening the effectiveness of the amendment as a public safety tool. The OPP's ROE, ROPE, and SAT units could assume this role if additional resources were applied.

The Ontario Provincial Police strongly supports current provincial strategies and initiatives--examples are the Toronto anti-violence initiative, the provincial anti-violence initiative, and the guns and gangs initiative--in addressing these types of offences. Policing has received strong government support in these areas.

The OPP believes that other federal legislation and policy proposals brought forward by policing bodies, including the OPP, would enhance the policing of organized crime, gangs, and serious drug-related crime. Areas previously discussed, such as lawful access, amendments to the Firearms Act, and a national gun strategy, are some examples.

In addition, the OPP supports evidence-based programs that prevent youths from joining gangs. Implementation of the recommendations of the LeSage report hopefully will provide a framework that enables all justice system processes to work in a more efficient manner. The OPP recommends that justice sector partners work together on pretrial motions and disclosure to assist in this area.

The new first-degree organized crime murder offence has updated current legislation to address the risk to public safety from gangs. OPP experience in regard to criminal organization offences is that they are very difficult to successfully litigate and require a lengthy amount of investigative time. Use of this offence could lead to challenges, significantly prolonging the final disposition of a case and likely increasing officer time associated with court appearances and evidence. However, we hope that with the recommendations of the LeSage report and the Justice on Target initiative, these issues may be offset.

Prior rulings relating to criminal organization crime have found that the definition of the term “criminal organization” is overly broad. It may be easier to prove second-degree murder in cases than to provide evidence that would end up in a guilty finding for a first-degree murder offence.

The possibility of a life sentence may lead to greater use of witness intimidation by offenders, increasing the challenge for police in identifying guilty persons. If so, the amount of time spent investigating gang-related murders would obviously increase.

A life sentence may provide family and the public with a sense of justice being served; however, victims' families and the public may believe and come to expect that more punitive retribution is also appropriate as a crime deterrence strategy. Jurisprudence that overturns mandatory sentences may make the public regard the justice system as not working. A life sentence is not considered to be an effective deterrent but will prevent that offender from engaging in future offences. Experience has suggested to us that incarceration may not necessarily prevent an offender from continuing to engage in criminal activities while incarcerated.

The new firearms offences will not likely deter public gunplay or drive-by shootings in larger urban areas, given the difficulty we've had in actually identifying the offenders. Other new offences could be effective in reducing these types of crimes. A handgun ban, for example, would provide an additional arrestable offence. The OPP has supported proclamation of the 2004 firearms marking regulations, legislation to address gaps given that possession and sale of gun parts is not regulated...nor any associated criminal liability and a prohibition of possessing ammunition or firearms in stipulated public areas.

Bill C-14 provides law enforcement with new tools for responding to gang violence; however, enhancing community safety ultimately requires both apprehensions and convictions. Solutions include providing police with more resources and other legislative tools and policies that will assist in increasing arrests and convictions, as police have requested, in such areas as lawful access. The gun and gang initiative has been very successful in the province in Ontario. By way of example, in 2006, murders in Ontario declined almost 14%, shooting murders declined by 44%, and shooting occurrences in general fell by 15.9%.

On adding weapons or injury provisions, or in some cases duplicating existing offences, bodily harm and aggravated assault are serious offences with lengthy penalties. Police officers as victims should be an aggravating factor that leads to lengthier sentences regardless of the specific offence. The impact of the breaches of the new recognizance conditions is not known. It will be the judge who decides if a person being released under the new recognizance provisions must report to the police or to Correctional Services.

Certain conditions, such as electronic monitoring, are now clearly permitted, and a peace bond may be for up to 24 months. It is expected that conditions may be used more consistently. However, it is the police who will be responsible for bringing forward any information to trigger the amended recognizance provision. Police also have the authority to arrest an individual without warrant if they believe a designated offence is likely to occur. To act on this authority requires happenstance, intelligence, or surveillance. Recognizance provisions represent a potential tool that police could consider as benefit and cost.

Surveillance may support warrantless arrests, enhancing public safety and providing other valuable intelligence. Police would require additional capacity to effectively monitor individuals released under these recognizance conditions. The OPP's ROPE, SAT and ROE units have the skills required, but they have little capacity to monitor persons in these high-risk areas. The OPP's repeat offender enforcement strategy, which continues to monitor high-risk offenders after their release into communities, is effective, but again, it has become a capacity issue.

Thank you.

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is the fourteenth meeting of the Standing Committee on Justice and Human Rights, on Monday, April 20, 2009.

You have before you the agenda for today. We're continuing our review of Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants). I'm hoping that we'll be able to complete clause-by-clause review of the bill at the end of this meeting.

I understand that Monsieur Ménard has a point of order to make at the beginning of our meeting.

Truth in Sentencing Act

[Russ Hiebert, Conservative, South Surrey—White Rock—Cloverdale, BC]

Mr. Speaker, I will be sharing my time with the member for St. Catharines.

It is a privilege for me to speak to Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).

As members may know, my riding of South Surrey—White Rock—Cloverdale has been directly affected by the shootings and gang war that has erupted in the Lower Mainland. My constituents are extremely concerned about the ongoing violence and complete disregard gang members have in our community. As the police have clearly indicated, much of this gang warfare is directly related to the drug trade. The guns being used are often smuggled across the border and purchased with the profits from the drug trade, or traded for drugs. Ensuring truth in sentencing, as Bill C-25 would help do, is an important step in ending British Columbia's gang war.

Every member of Parliament brings some experience in other professions and trades to his or her job here. Before I was elected, I served as an attorney for the B.C. legal services. I saw firsthand the impact drugs are having on our young people. I saw firsthand how many young people would turn to a life of crime to feed their drug habits and addictions. Drugs are often the gateway to crime for many career criminals. That is why I feel so strongly that we need to crack down on those who attempt to profit at the expense of our young people. Ensuring that drug pushers and gangsters serve a sentence that matches the seriousness of their crime is an important part of combatting the drug trade.

Upon taking office, our government committed itself to tackling crime and making our streets safer. Our commitment included preventing courts from giving extra credit for pretrial custody for persons denied bail because of their criminal record or for having violated bail.

Under the current system, courts typically take into account certain factors, such as overcrowding in remand centres, lack of rehabilitative programs commonly available in sentence custody, and the fact that time spent in remand does not count toward parole eligibility. This has resulted in courts traditionally awarding a two-for-one credit for time served in pretrial custody.

Now, on rare occasions, the credit awarded has been as high as three for one, especially where the conditions of detention were poor, for example, because of extreme crowding. Although also rare, credit has sometimes been less than two for one where offenders were unlikely to obtain early parole because of their criminal record or because of time spent in remand as a result of a breach of bail conditions.

The general practice of awarding generous credit for time spent in pre-sentencing has resulted in correctional authorities straining to cope with the growing number of people who are held in remand. In many cases, the population in remand centres now exceeds the population found in sentence custody in Canada's provincial and territorial jails.

Provincial attorneys general and correctional ministers have expressed concerns about the growing number of people being held in custody prior to sentencing. They strongly support limiting credit for time served as a way to help reduce the growing size of their remand population. Concerns have also been expressed that this practice has been abused by some accused who delay their trials and sentencing to earn double credit for the time spent in pretrial custody, thereby reducing their sentence.

Canadians have told us loud and clear that they would like to see more truth in sentencing.

I want to refer to a case that happened just last month in Toronto. A man convicted of manslaughter in the death of a nearly one-year-old baby found with 38 wounds was sentenced to six and a half years in prison. However, given that he has already served three years in pretrial detention since he was arrested for this killing, the two-for-one credit will guarantee that he is out on the streets within six months of his conviction.

One way of achieving truth in sentencing is to bring the practice of giving double time credit for pretrial custody to an end.

We are listening to the Canadian public in proposing this legislation. It would provide the courts with greater guidance in sentencing by limiting the amount of credit that courts may grant to convicted criminals for the time they served in custody prior to their sentencing. Bill C-25 would limit the credit ratio to two for one in all cases. However, where circumstances justify it, courts would be able to award a credit of up to one and a half days for every day spent in pre-sentencing custody. In such cases, the court would be required to provide an explanation for those circumstances. These circumstances are not defined in the bill. This is so the courts would have the discretion to consider on a case-by-case basis whether the credit to be awarded for the time spent in pre-sentencing custody should be more than one for one.

For example, we would expect a credit ratio of up to 1.5 to one would be considered where the conditions of detention and remand are extremely poor, or there is a complete absence of programming, or when the trial is unduly delayed by factors not attributable to the accused. However, where accused are remanded for having violated bail or because of their criminal record, the credit would be limited to one day for every day spent in pre-sentencing custody no matter what the remand conditions are.

As a result of this initiative, more offenders would now have a federal sentence of two years or more, and an increased number of offenders who would likely have been sentenced to a federal penitentiary would be spending longer time in federal custody. From a rehabilitation perspective, this time in the federal system would present the opportunity for longer term programming that may have a positive impact on the offender.

Bill C-25 also proposes to require courts to note the sentence that would have been imposed without the credit, the amount of credit awarded and the actual sentence imposed. This requirement would result in greater transparency and consistency and would improve public confidence in the administration of justice.

The proposed legislation is part of a series of criminal justice bills that has been introduced since we took office to help ensure the safety of Canadians. To make Canada safer, we have enacted legislation to get violent and dangerous criminals off our streets. We have cracked down on sexual predators, dangerous offenders and those who use guns to commit crimes. We have given the police more tools and resources to combat crime and to deal with those who drive while under the influence of alcohol or drugs.

In the current session we have introduced Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants), which will provide law enforcement officials and the justice system a better means to address organized crime related activities, in particular, gang members and drive-by shootings.

Bill C-15, An Act to amend the Controlled Drugs and Substances Act and to make related and consequential amendments to other Acts, was introduced on February 27. It would provide for mandatory jail time for those who produce and sell illegal drugs. The reforms would, however, allow a drug treatment court to suspend a sentence while an addicted accused took an approved treatment program.

We have also introduced legislation in Bill S-4 to provide law enforcement officials with the tools they need to protect Canadian families and businesses from identity theft.

We will continue to introduce legislation to strengthen the justice system. Bill C-25 is an important contribution to this objective.

I appreciate the support of our provincial and territorial partners for this legislative amendment to provide greater truth in sentencing. I can only hope that we can also count on the support of the opposition parties, who have so often stood in the way of any bill that would actually reflect truth in sentencing.

I note the Liberal member for Vancouver South, who has been a loud critic of this government on law and order issues, recently criticized our approach to the issue of sentencing. In the Vancouver Sun on March 26 he is quoted as saying:

If they were genuinely concerned about public safety, they would have actually gone through the system, including corrections and parole board, and attempted to deal with the issue of organized crime. I believe they have not done their job in that regard.

I have three things to say in response to the member, who is a lawyer and a former attorney general of British Columbia.

First, we have introduced four separate bills in the past two months that will help police and prosecutors to crack down on organized crime, and gang and gun war is being waged in the Lower Mainland right now. Will he and his party support those bills?

Second, since forming government in 2006, we have continually introduced legislation to better achieve truth in sentencing. His party opposed these bills in the House and in the Senate. It was not until the Prime Minister threatened an election that the Liberals finally agreed to allow this measure to pass. Why did his party oppose truth in sentencing for so long?

Finally, let us remember that the member for Vancouver South was elected in 2004 and appointed to cabinet. He said that he is concerned about organized crime. He said that he is serious about stopping gun and gang violence. Why was the legislation we are debating today not passed while he was still in power?

I would call on the member and all parties in Parliament to put aside the partisan rhetoric and join us in supporting this common sense legislation.

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

moved that Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody), be read the second time and referred to a committee.

Mr. Speaker, I thank the government House leader for seconding this bill. It is very important legislation and is an important part of this government's agenda. We are opening debate on the truth in sentencing act. The amendments to the Criminal Code proposed in this bill will limit the credit that a court may grant a convicted criminal for time served in pre-sentence custody.

As some in the House may be aware, section 719(3) of the Criminal Code allows a court to take account of the time a convicted criminal has spent in pre-sentencing custody in determining the sentence to be imposed. The code does not set out any formula for calculating this credit, but the courts routinely give credit on a two-for-one basis. In many cases the courts give credit on a three-to-one basis. In other words, for every day a convicted offender has spent in remand, the court will deduct from the sentence it otherwise would impose, two or three days.

Explanations for the length of a sentence are usually provided in open court at the time of sentencing. However, judges are not required to explain the basis for their decision to award pre-sentence credit. As a result, they do not always do so and this deprives the public of information about the extent of the pre-sentence detention. It leaves people in the dark about why the detention should allow a convicted criminal to receive what is most often considered to be a discounted sentence. This creates the impression that offenders are getting more lenient sentences than they deserve.

There is a concern that the current practice of awarding generous credit for pre-sentence custody may be encouraging some of those accused to abuse the court process by deliberately choosing to stay in remand in the hope of getting a shorter term of imprisonment once they have been awarded credit for time served.

For ordinary Canadians, it is hard to understand how such sentences comply with the fundamental purposes of sentencing, which is to denounce unlawful conduct, deter the offender from committing other offences and protect society by keeping convicted criminals off the streets.

The practice of awarding generous credit erodes public confidence in the integrity of the justice system. It also undermines the commitment of the government to enhance the safety and security of Canadians by keeping violent or repeat offenders in custody for longer periods.

Those who defend the current practice note that credit for pre-sentence custody compensates for the fact that the time a convicted criminal has spent in remand does not count toward eligibility for full parole or statutory release.

At present, a prison inmate is eligible for full parole after one-third of the sentence has been served. If parole is not granted, that same inmate will likely be set free on statutory release at the two-thirds point in the sentence. What this means in practice is that if someone is released on full parole at the one-third point in the sentence, every day he or she has served in prison will have counted, in effect, for three days.

If parole is denied and at the same time a person is set free on statutory release at the two-thirds point in the sentence, every day he or she has served in prison will have counted, in effect, as a day and a half.

The current system of presumptive release that currently underpins Canada's approach to corrections has recently been the subject of an exhaustive review by an independent panel. This panel's report entitled “A Roadmap to Strengthening Public Safety” was delivered by my colleague, the former minister of public safety, in October 2007.

Among other things, the independent review panel recommended that statutory release be entirely eliminated and that Canada move toward a system of earned parole. The goal is to encourage prison inmates to sincerely apply themselves to the rehabilitative programs available to them in prison.

The practice of awarding generous credit for pre-sentence custody cannot rest on the foundation of a statutory release and parole system that has itself been subject to strong and impartial criticism and that may therefore be significantly changed in the future. However, those who defend the current practice note that the generous credit for pre-sentencing custody is also designed to take into account such factors as overcrowding and lack of rehabilitative programming for inmates in remand centres.

I have received many letters and representations from concerned Canadians on the issue of pre-sentencing custody credit. All too often they cite situations where violent offenders are set free after having served a relatively short prison term because a court has awarded them two or three to one credit for pre-sentence custody. One writer commented that if one of the purposes of incarceration is to reform criminals, then the current practice of awarding two for one is a dismal failure. He writes:

The rationale is that the criminal has been deprived of the benefits of programs that would be made available to him in a regular penitentiary. So, in addition to releasing him back into society without these rehabilitating programs, we send him out twice as fast.

It is hard to disagree with that.

Not only does the current practice deprive offenders of the prison programs that might help to keep them out of jail in the future, it also fails to punish them adequately for the deeds that led to their convictions in the first place. This is especially the case of those offenders who have been denied bail and sent to a remand centre because of their past criminal records or because they have violated their bail conditions.

Bad behaviour should not be rewarded.

This government is on record as having pledged to address this issue, something that the bill would do. We have tabled Bill C-25 to strictly limit the amount of credit the courts may grant to convicted criminals for the time they have served in custody prior to their sentencing.

Our government is following through on its commitment to ensure that individuals found guilty of crimes serve a sentence that reflects the severity of those crimes.

This bill would accomplish a number of important objectives. It would deliver on our promise to provide truth in sentencing. It would help to unclog our court system and avoid costly delays and would do this by providing the courts with clear guidance and limits for granting credit for time served.

The Criminal Code amendments tabled on March 27 clearly stipulate that the general rule should be one day credit for each day served in pre-sentence custody. If circumstances justify it, credit may be given at a ratio of up to one and a half days for each day served. In such cases, however, the courts would be required to explain the circumstances that warrant departing from the general rule of one to one credit. This would allow the judge the discretion to award credit of up to one and half to one in appropriate cases. That being said, when it comes to offenders who have violated bail or who have been denied bail because of their criminal record, credit for time served would be strictly limited to a one to one ratio without exception.

I want to repeat that no extra credit would be granted under any circumstances for repeat offenders or those who have violated their bail conditions.

The proposed amendments would provide greater certainty and clarity in sentencing. It would require the courts to provide written justification for any credit granted beyond the one to one ratio. The courts would also be required to state in the record the amount of time spent in custody, the term of imprisonment that would be imposed before any credit is granted, the amount of time credited and the sentence imposed. Canadians would no longer be left wondering about how a particular sentence has been arrived at in a particular case.

Although sentencing issues are complex, they are issues of utmost importance to this government. We need to work closely with our provincial and territorial partners to deal with the many issues associated with sentencing reform.

Extra credit for time spent in pre-sentence custody is widely seen as one of several factors that have contributed to significant increases in the remand population in the last few years. This significant growth has put provincial and territorial institutions under considerable pressure.

Since 2007, more people have been held in provincial and territorial remand centres than were serving sentences in provincial and territorial jails. Overall, remanded accused now represent about 60% of admissions to provincial and territorial jails.

Several factors are at work that may contribute to the fact that the remand population is rising. Across Canada, court cases are becoming more complex due partly to the rise in the number of complex drug and organized crime related prosecutions. Many cases now involve 10 and 20 appearances before the courts. Longer processing times mean longer stays in remand.

For example, in 1994-95 about one-third of those in remand were being held for more than a week. Ten years later, however, those held for more than a week had grown to almost half of the remand population. This is a significant drain on resources at a time when the justice system is already under strain with an increasingly heavy workload.

Trials are becoming longer which also increases the amount of time an accused is remanded. All of this adds up to an increase in the remand population. The result is that offenders spend less time in sentenced custody because they spend too long in remand, which is why the provinces and territories welcome the reforms contained in Bill C-25.

Many of my colleagues and I stood with provincial attorneys general and solicitors general when our government announced the introduction of Bill C-25 on March 25. I was in British Columbia with the attorney general, Wally Oppal; the mayor of Surrey, Dianne Watts; the Vancouver police chief, Jim Chu; and other police representatives, including a member of the Canadian Police Association. This all took place at the Surrey remand centre. I was so pleased to be joined by a number of my colleagues who have been very supportive of this initiative and all of the initiatives that this government has taken to combat crime.

I hope I am not embarrassing him when I say that I was pleased to be there with the member for North Vancouver, and I thank him for his support. I thank the chairman of the justice committee, the member for Abbotsford, and one of the women who has been pushing this issue for quite some time, the member for Fleetwood—Port Kells. Mr. Speaker, you know of her commitment.

I was also pleased to be joined on that date by the member for Surrey North who has been very supportive of our criminal law agenda. Members will remember a number of occasions when she has posed questions to me during question period all related to getting tough on crime and sending out the right message. I thanked her on that day and I am pleased that she has joined with me again today. I know of her commitment in this area.

Since the day we made that announcement, we have had overwhelming support from attorneys general and solicitors general because they believe that Bill C-25 will help them cope with the growing number of accused who are awaiting sentencing while housed in their jails. They believe it will help them stem the tide of increased costs due to a growing demand, which is why the truth in sentencing bill is very important to them.

At a meeting of federal, provincial and territorial ministers held last September, my counterparts unanimously encouraged us to proceed with amendments similar to those seen in the truth and sentencing bill and they indicated that this was a top priority for them.

These are important reforms. Canadians have been waiting for a long time. Many say that offenders too often slip through the fingers of out justice system without serving adequate time. As a result, Canadians have been demanding change. They believe there must be more truth in sentencing and that the sentence one gets is the sentence one should serve. This approach set out in Bill C-25 would help restore the people's confidence in the criminal justice system. In the oft-repeated phrase, justice must not only be done, it must be seen to be done.

This approach is also more consistent with the situation found in other common-law countries where awarding a credit for pre-sentence custody is far less generous than in Canada. One concern expressed by some critics is that Bill C-25 is unfair because it does not adequately recognize the pre-sentence custody that often occurs in overcrowded institutions that lack opportunities for education and treatment. It is not our intention that accused persons be encouraged to remain in remand any longer than is absolutely necessary. Rather, it is our intention that accused persons proceed to trial with as little delay as possible and, if convicted and given a custodial sentence, that they may be sent to prisons that are not overcrowded and offer more opportunities for education and treatment.

In that regard, my department has been working closely with provinces, territories and members of the bench and the bar to identify practical and effective ways to improve the efficiency of the courts to ensure they are able to meet the challenges now confronting them.

The approach taken in the truth in sentencing bill should encourage good conduct by accused persons while on bail and should encourage them to seek an early trial where possible and where appropriate to enter an early guilty plea. Above all, it would lead to greater clarity across Canada regarding the relationship between the sentencing posed on an offender and the credit for pre-sentence custody.

These changes are long overdue but late is better than never. Time and time again, Canadians have said that they want a strong criminal justice system. They want us to move quickly and decisively to tackle violent crime.

Our government is committed to protecting Canada's citizens and making those streets safer. We will continue doing what Canadians expect and deserve and that is making laws that will keep our communities and streets safer. We promised to tackle crime and strengthen security when we formed the government and we have kept our word.

Since we took office, we have brought forward several key pieces of legislation, including the Tackling Violent Crime Act, which, among other things, signals an end to lenient penalties for those who commit serious or violent gun crimes. Our government has a long list of accomplishments in tackling crime over the last two years. We passed legislation to increase penalties for those convicted of street racing. We passed legislation that ends house arrest for serious personal injury and violent offences, including sexual assault.

As members know, we recently brought in reforms to address the problems of organized crime, Bill C-14, and introduced Bill C-15 to provide mandatory sentencing for serious drug offences. On March 31, we introduced in the Senate Bill S-4, the bill to protect Canadians against the rapidly increasing crime of identity theft.

We are proud of those changes. We are standing up for Canadians who have urged us to get tough on crime. Canadians across the country have told us that they want us to take action on crime and, with this legislation, we are delivering. We cannot do this job alone. I greatly appreciate the support I have received from my provincial and territorial counterparts but more is needed. I call on all members of the House of Commons and members of the Senate to expedite the passage of this bill, indeed all the bills that are part of our ambitious justice agenda. Canadians are watching this and this is what they expect. I hope all members will agree that this is what Canadians deserve.

[Matthew Taylor]

That's exactly what it's doing. It's proposing to address the more serious offences, and in addition, Bill C-14 would codify the principle that in sentencing for such attacks, which undermine the justice system more broadly, judges would be required to consider deterrents and denunciation as primary sentencing objectives.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you, Minister, and to your officials, for being here this afternoon.

When you were making your preliminary remarks, it brought to mind a witness we had before our committee who represented the Vancouver Board of Trade. I believe his name was Mr. Rezac. When the issue of mandatory minimums came up, he said that has been a widely held misconception, that there is no evidence that they work. He made reference to the United States and the fact that actually it was. So we have a person, who is independent of the political realm, whose organization has done some investigation into this.

My question has more to do with the worst of the worst. Minister, you also made reference to that. You said that at least near the end of their term there are 10 more years, I think you said, when they're not out on the streets. By the way, Mr. Rezac used the same terms, that there are people who aren't going to be victimized either in their stores or on the streets, and whose daughters are not going to be worried about walking on the streets at night. When speaking about hardened criminals, the fact is that these people are not average Canadians.

We want to make sure that the rights of average Canadians are upheld and that the rights of all Canadians are upheld. But we want to see those who are recidivists and those who commit crimes of violence related to organized crimes and street gangs behind bars. Those are the people Bill C-14 is dealing with, to ensure the worst offenders are unable to endanger the lives of Canadians.

I wonder if you could make a comment on some of those issues.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Minister. I look forward to a speedy passage of Bill C-14.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

At this table and elsewhere, when we discuss criminal law and criminal justice, often the focus is on the accused and their rights. Of course the system has built-in safeguards--the preponderance of evidence, and the onus on the state. As you know, the charter gave a whole bunch more rights. Through all that, it often concerns me that the rights of victims are frequently neglected in that process and, quite frankly, in that debate. Victims are not well represented. There's no national association or lobby of criminal victims. They lack the resources, and quite frankly, they lack the voice.

With respect to the accused and the defender, we talk about deterrence and rehabilitation. I congratulate the government again with respect to the victims' ombudsman, which was created during the 39th Parliament.

Minister, my specific question is with respect to making sure the victims of crime are heard and consulted, and with respect to consultation, not only for Bill C-14 but for your other initiatives generally.

[The Chair, Conservative, Ed Fast]

That's enough. I want to remind members that there is a general rule of relevancy. Today we're dealing with Bill C-14. The bill before us deals with organized crime.

Mr. Dosanjh, I've given you a fair degree of leeway to ask questions that are perhaps outside the bill. But let's remember, folks, that we're all working together to try to make this country safer. Let's keep the partisanship to a minimum, as much as we can.

Mr. Murphy.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you. I may finish early and split time with my other colleague here.

Mr. Minister, I'm not going to ask you any questions on Bill C-14. I have some other questions that I want to ask you, and I'm glad you're here.

You obviously know British Columbia made three requests when they came to see you, and they met with us as well. We said the Liberal Party of Canada supports their three requests. Recently other provinces--Saskatchewan, Alberta, and Manitoba--have added their voices to those three requests. I understand that some time ago Ontario was of the same view. Four other provinces in addition to British Columbia have added their voices to British Columbia's voice for those three changes, at least.

I'm going to focus on the change with respect to the wiretap and electronic surveillance request that British Columbia made. The other day before this committee we had the opportunity to hear from assistant commissioner of the RCMP, Mike Cabana, and he echoed his support for that request as well.

My question to you is very simple. You're moving on two for one, thank you. This particular organization of investigative techniques, MITA as it's called, was brought forward in 2005 by then Minister Anne McLellan. It died on the order paper. You don't have to do any more drafting. It's done. It's sitting there within the justice department. Why have you not moved on it? Why do you not think this is important for the police? They want to be able to apprehend or disrupt gang activity and they are at a disadvantage because of the state of the law in this area. It goes back over 30 years.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chair, for giving us the opportunity to come and talk about Bill C-14.

As you know, our government is committed to fighting crime and ensuring the safety and security of Canadians. We've made great strides in protecting Canadians and cracking down on crime. We passed the comprehensive Tackling Violent Crime Act, which increases penalties, including for those convicted of street racing, and establishes the national anti-drug strategy to curb illicit drug use. Ours is a comprehensive approach on these matters.

Bill C-14 is another plank in our ambitious crime agenda. This important piece of legislation is an example of this government's ongoing commitment to improve the safety of our streets and communities by tackling organized crime, especially violent street gangs. I'll set out some of the major components of this, and of course I would be pleased to answer any questions you may have on this.

Gang violence is an extremely serious concern for many Canadians, especially right now in Vancouver and the Lower Mainland, where recently there has been a wave of violence from gang members. I receive letters and e-mail from citizens, mayors, and attorneys general urging the federal government to take action to address the threats that gangs are posing to their communities.

Bill C-14 proposes four key reforms. They are making gang murders automatically first degree murder; creating a new offence to target drive-by and other reckless shootings; fortifying the scheme for responding to assaults against police and other peace officers and public officers; and strengthening the gang peace bond provisions.

With respect to murders that can be linked to organized crime, we are proposing amendments that would automatically treat these cases as first degree murder regardless of whether they are planned and deliberate. Furthermore, if it can be established that the murder occurred while the person was committing or attempting to commit another indictable offence for the benefit of, at the direction of, or in association with a criminal organization, then it will be classed as first degree murder even in the absence of planning and deliberation. The person would obviously have to be guilty of murder in the circumstances. I want to emphasize that we are not talking about some form of constructive murder or raising manslaughter to murder in these circumstances. Rather, the effect of the provision would be to make any murder committed in the course of another criminal organization offence first degree rather than second degree.

Gang homicides account for approximately 20% of all the homicides that take place in Canada, but in British Columbia, which has been hard hit by gang violence, that number is a staggering 40% of all homicides. What is even more troubling is that gang homicide rates have been climbing each year. Clearly, this demands attention from all levels of government.

Under this law, any person found guilty of first degree murder is sentenced to a mandatory term of life imprisonment. As you know, in the case of first degree murder, there is no eligibility for parole for 25 years. In the case of second degree murder, the parole ineligibility period is a minimum of 10 years up to a maximum of 25. These amendments to section 231 of the Criminal Code mean that police officers and prosecutors will have another tool to treat gang murders as the extremely serious cases that they are.

The second area of reform relates to drive-by and other reckless shootings. We are proposing a new offence be added to the Criminal Code that would target all intentional shootings involving reckless disregard for the life or safety of others. Currently the offences available to prosecute these kinds of cases range from offences such as section 86, the careless use of a firearm, to section 244, the discharge of a firearm with intent to cause bodily harm. The negligence-based offences do not appropriately capture the seriousness of a drive-by scenario that involves consciously reckless conduct. Section 244, on the other hand, requires proof that the firearm was discharged at a particular person with a specific intent to cause bodily harm.

While the offence is clearly the more appropriate one if the shooter does have a particular target, it can sometimes be difficult to prove in a drive-by shooting scenario where the intent may be generally to intimidate a rival gang or the community. In many cases, the shooters may just be firing wildly, in any event, without a particular target. The proposed offence will fill a gap in the Criminal Code and provide a tailored response to this dangerous criminal activity.

This new offence requires that the accuseds specifically turn their minds to the fact that discharging their firearms would jeopardize the life or safety of another person, and appreciating this fact, they still went ahead. This offence would be punishable by a mandatory penalty of four years of imprisonment and a maximum of 14 years. The mandatory minimum penalty would be increased to five years if the offence were committed for the benefit of, or at the direction of, or in association with a criminal organization, or it involved the use of a prohibited or restricted firearm such as a handgun or automatic firearm. In addition, repeat offenders in these circumstances would be subject to a higher penalty, beginning at seven years of imprisonment.

A third area of reform is aimed at increasing the protection to police officers and to responding to violence committed against other justice system participants. It does this by creating two new offences to prohibit assaults causing bodily harm to police officers, or involving the use of a weapon and aggravated assaults against police officers. These offences would be punishable on indictment by a maximum imprisonment period of 10 and 14 years respectively. To ensure these offences are adequately punished, we have proposed amendments that would require a court, when sentencing an offender for any of the specific offences, to give primary consideration to the principles of denunciation and deterrence. The same principles would also apply to cases involving the intimidation of justice system participants, including judges, prosecutors, jurors, and many others who play a role in the criminal justice system.

Finally, the fourth area of reform proposed in Bill C-14 relates to the strengthening of the gang peace bond provision. These amendments would clarify that when issuing a reconnaissance order or a promise to keep the peace, judges may impose any conditions they feel are necessary to secure the good conduct of the defendant. The amendments would also provide for these orders to be extended past the normal one year up to 24 months if the defendant had been previously convicted of a criminal organization offence, or the intimidation of justice system participants offence, as well as a terrorism offence. These are important tools because they seek to prevent the commission of organized crime offences before they take place, and they are extremely useful for the police in controlling gang activity. These amendments will ensure that the orders are used as they are intended.

Mr. Chair, as I've said in the past, there can be no more important task for any government to undertake than the protection of its citizens. Bill C-14 will result in greater protection for Canadians everywhere. I think Canadians would like to see legislation like this passed, so I urge honourable members of this committee to work collaboratively and efficiently to ensure a speedy passage of this bill.

Thank you very much.

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 12 of the Standing Committee on Justice and Human Rights. Today is Monday, March 30, 2009.

You have the agenda for today before you. By order of reference, we have before us Bill C-14, An Act to amend the Criminal Code (organized crime and protection of justice system participants).

Please note that we will be leaving half an hour at the end of this meeting to discuss in camera a number of work plan issues that the committee has to address.

To assist us in the review of Bill C-14, we're glad to have with us the Minister of Justice and Attorney General of Canada, the Honourable Rob Nicholson. With him are representatives from the Department of Justice. First of all, we have Mr. William Bartlett, senior counsel, criminal law policy section; we also have Matthew Taylor, who's also counsel with the criminal law policy section.

Minister Nicholson will be with us for one hour. I believe Department of Justice officials will be here for another half an hour after that, so that works well.

Minister Nicholson, you're aware of the routine. You have 10 minutes to present, and we'll open the floor to questions. The floor is yours.

Controlled Drugs and Substance Act

[Libby Davies, NDP, Vancouver East, BC]

Mr. Speaker, speaking to you, I will bet the member met with police, but I bet he did not sit down with a group like VANDU to find out what that experience is.

The member spoke of what is going on in Vancouver. I agree it is horrific. I have had lots of emails and phone calls from people. I spoke about this yesterday when I was debating Bill C-14. To me this is further evidence that the regime we have had, the so-called war on drugs the Conservatives are committed to so obsessively, with blinkers, despite the evidence, is failing.

In terms of the four pillar approach, in every society and every country around the world that has made progress dealing with drug use, it is because they have adopted policies under the four pillar approach. To say that it is a failure, I guess the member has not properly researched this or looked at what is going on. The four pillar approach based on treatment, harm reduction, prevention and enforcement, and enforcement is a part of it, is absolutely what is going on internationally. Even the UN is recognizing that harm reduction is a very important component of its drug policies. There was recently a conference at the UN.

I heard what President Obama said. He is obviously not ready to do that, but my point was that the American public overwhelmingly is saying to stop this madness. I think President Obama will eventually get that message and I am pretty sure he will begin to make changes.

Controlled Drugs and Substances Act

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

Mr. Speaker, it is my pleasure to rise today on Bill C-15.

It is my great pleasure to rise on this topic and on the topic of justice in general. The preface would be in that old common law saying, “Justice delayed is justice denied”. Usually that goes to the rights of an accused, but what I would say for the Canadian public, on the floor of the House, is justice is being delayed. The government has been in power three years and we still have problems with crime.

I have been in the bowels of the government's justice machine. Two things we do not want to see, but need, are the making of laws and the making of sausages. I was also on the floor of meat packing plants in Moncton in the old days. I do not think members really want to see sausages being made. I am not sure members would want to see the laws being made by the government over the past three years either.

The Conservatives really have not been effective. If we want to get at the root causes of crime and if we want to do what we all want as parliamentarians, which is to have safer communities, we have to look at the beginning and the end. We have to look at the whole situation with respect to crime. We do not go to CTV or CBC, get on the news and say, “We're doing something about crime. Look at the bill we're introducing”. We do not have successive parliaments have their work interrupted by prorogations. That is what the government has done. It has denied justice by delaying justice.

Even when the government gets around to what it sees as its fix, its panacea, which is just legislation, it does not seem to get that its legislation alone will not solve the problems we have with organized crime, drug abuse and the drug culture and drug crime industry in this community.

That is why I will take some time to not only review Bill C-15, but the whole issue of drugs in our country.

A few weeks ago we had a delegation in Ottawa from British Columbia. I know it met with members of the government as well. We would not be honest with ourselves if we did not say to the House that we are, in a bit, reacting to a very serious situation in British Columbia, but there are serious situations in North Preston and Halifax. There are serious situations in Montreal, Toronto, Winnipeg, Calgary and all across the country.

However, the people on the front line are the men and women in law enforcement, the men and women in the prosecutorial offices and the men and women who wear uniforms to enforce our laws in the province of British Columbia.

That delegation included the attorney general of British Columbia, who came with some very specific demands. The chief law officer of the province of British Columbia came here with specific demands that had not been addressed by the government. They were not gargantuan tasks. They were tasks we would expect of a reacting, competent government. As I mentioned, not only does it have a very capable Queen's Counsel, a member of Parliament for some 20 years, Attorney General, it also has two very good parliamentary secretaries, representing the best of English speaking Canada from Albert County, New Brunswick and the best of French speaking Canada from Quebec.

Notwithstanding those heavy resources and great minds that are applied to this subject, the government has not been able to respond adequately, swiftly and thoroughly to the needs of the attorney general of British Columbia. They involve relatively simple things, simple things that the laws have evolved to become obstacles to the law enforcement officials in British Columbia. The whole issue around disclosure, as I mentioned in one of my interventions, has become very cumbersome for law enforcement officials.

There is a bit of a paper war between prosecutors and police forces with respect to having to comply to the need for disclosure as bolstered by the law in Stinchcombe. The prosecutors sometimes want paper files. They are not ready to move to electronic files, that is fine. Police officers who compile some of the initial information are tied up quite often making copies thereof. The prosecutors in many provinces have to go over the evidence themselves in order to prefer the charges. In some cases, that means watching hours of video.

One would think that a government responding to need would say that it has the power of legislative reform and the power to introduce amendments that might address Stinchcombe, that might address the exactitude and timeliness with respect to disclosure. However, we might also expect that it would react by giving money and resources to both prosecutorial services and police forces in order to comply with the need for disclosure. However, nothing like that was done. The response was always legislation.

Funnily, on this side we saw today that even when all the opposition parties seem willing to get this to committee quickly, the Minister of Justice seemed to be the only one in the room who did not get the song sheet. He did not seem to understand that everybody wanted it to go to committee and he had a bit of a fit, which did not advance the ball at all.

We are not against these bills going to committee to be studied. They will go through the rigour that the committee has always brought to legislation, when the House has not been prorogued and the work of committees permanently stopped, which has been the case in the three years that the Conservative government has had its hands on the wheel.

I was involved in municipal politics. At that time, we only a three-year term. If I did as little in my entire mandate for the citizens of Moncton as the government has done on the justice dossier, I would not have been acclaimed to my second term. Three years is enough time for the people on the other side to stop saying that people on this side are born again to the justice issue.

I think of the member for Mount Royal and all that he has done to contribute to the laws of our country and Conservatives say that he is born again. If Liberals are born again, that means the Conservatives were never born at all or, if they were, they are like puppies in the first few days. They have wool over their eyes and they do not see the larger issues that, after three years, should be so apparent. There are issues with respect to the root causes of crime and drug issues with respect to how we will implement issues around the four pillars that the people from British Columbia live by in the inner city.

Even proponents of the Conservative justice agenda, and I think primarily of the representatives of the board of trade from British Columbia who were here yesterday, recognize that the legislation alone is not enough. Even they would say that no one is born a criminal. One has to become a criminal and embrace a lifestyle that leads to incarceration. Unfortunately, time and time again the government has brought forward legislation that only talks about one of the pillars or, if we want to get technical, one of the principles of sentencing as found in the Criminal Code, which is the issue of incarceration.

Bill C-15 is a fairly good stab at an acute problem in our country, which is the enforcement of people who break the law with respect to the use, importation and trafficking of drugs. It is particularly important to underline, as my friend the parliamentary secretary did, the action with respect to a certain rise in the use of methamphetamine.

There has been some success, without any of these laws being enacted, that should be heralded in the House today. Not surprisingly, the story comes from New Brunswick. This kind of activity by our police forces takes place every day in Canada, and they are not heralded enough.

We are in an era when good RCMP officers have had their expected wage increases reduced, as if they were other civil servants or like other members of Parliament. In a day and age when the RCMP is having some difficulty in recruitment and some issues with respect to their municipal contracts across our country, we might want to ask ourselves, and Canadians as well, what the Minister of Public Safety is doing with respect to the RCMP. How is the esprit de corps at the RCMP?

Would it not be good to read stories like this all the time? In fact, the story emanates from Moncton, New Brunswick, and it goes as follows:

The number of seizures in New Brunswick of the drug methamphetamine has doubled in the past year, RCMP say....The number of meth seizures jumped to 90 in 2008 from roughly 45 in 2007.

That is a good news story. As my friend, the parliamentary secretary, said, this is a particularly pernicious and addictive drug. This is proof that the RCMP, with proper resources, and forget about all the new laws involved, can crack down on what exists now.

My initial plea is for the government to wake up on two fronts. One, it is proposing legislation that is but a small part of a resolution or improvement in the situation, which in one case we have suggested should go right to committee. Members will find with respect to Bill C-15, at least with respect to the Liberal Party's position, that we also support it going to committee for study, but I have not heard from the Conservative side anything that suggests there is anything else in the Conservative agenda with respect to fixing the situation.

There was a little crack in the armour at committee recently, when the other parliamentary secretary said that no one was suggesting that these bills were the be-all and end-all. That is a good start. The road to improvement is looking in the mirror and realizing that we are leading Canadians to believe we are fixing the crime situation with our nightly newscasts. However, it would be refreshing to hear from the Conservative side. It would be refreshing to hear those members say that there is a long road to climb, that funding adequately police forces and prosecutorial services is one of those things and investing morally and mentally in the ideas of harm reduction and prevention and early childhood intervention with respect to the root causes of crime is another. These would be refreshing thoughts for all Canadians to hear.

With respect to the bill itself, the Controlled Drugs and Substances Act would be amended to include a one year mandatory prison sentence, which would be imposed for dealing drugs such as marijuana when carried out for an organized crime purpose.

Another thing the government could do is this. I happen to know that the Department of Justice, if asked, would be ready and would embrace the idea of looking at the definition of organized crime.

There were improvements to the Criminal Code, which interspersed organized crime definitions, but when we compare it to the RICO statute in the United States, it is more narrowly defined. It is not as contemporary as we need it to be when we are talking about street gangs, which in some cases might be two people. As members know, the organized crime provisions in the Criminal Code apply to three people.

The criminals have been much more sophisticated and they have grown much readier to adapt to legal situations than our Parliament has in making the laws to react.

This does not have anything to do with mandatory minimums, or conditional sentences or being tough on crime. This has to do with looking at the Criminal Code as an organic document. I do not want to get too farm-like, but if we have an organic document, it is a bit like a garden. We have to tend to that garden and understand that certain crops need to be fertilized. Some need to be covered, protected and watered. That is what the Criminal Code is like.

Certain provisions are so antiquated that the only brilliant Conservative attorney general would turn over in his grave, and that was Sir John Thompson in 1892, who wrote the Criminal Code. I know I am going back over 100 years to give a great compliment to the Conservatives. I guess that is endemic to this place. The fact is he wrote the Criminal Code and he would turn over in his grave to see how antiquated it is in some ways.

After three years, the government ought to say that it has to take ownership of its failure in making the Criminal Code a more modern document.

With respect to organized crime, the Criminal Code has to do be updated. With respect to the Criminal Code and all the issues around warrants, electronic or otherwise, prosecutors have to go to graduate school to figure out how many different types of warrants they might have to apply for in front of judges before they are able to use them.

These things are completely non-contentious. They are things that could have been brought to Parliament in the first year, the second year, now, or hopefully next week, if anybody listens to the sense in my speech. These are things that could improve the enforcement of our laws.

This bill will enact a two year mandatory prison sentence for dealing drugs such as cocaine, heroin and meth to youth, or for dealing those drugs near a school or an area normally frequented by youth. A two year mandatory prison sentence will also be imposed for the offence of running a large marijuana grow operation of at least 500 plants. These are very targeted sentences which, when problems are increasing exponentially particularly in certain areas of the country, we cannot oppose. These are wonderful provisions for a very specific problem.

What is missing in this crime prevention program is a more holistic approach. Why have we not heard the Conservatives talk about bringing forward other legislation that will be more effective?

We have had the argument regarding mandatory minimum sentences in past Parliaments. The opinion is divided. I am not an expert on this, but I know that other members of the committee have sat through hours of testimony from a multitude of experts who are very divided, but by and large the experts are saying that tougher penalties for people who produce and traffic drugs will only scare the ma and pa producers. That is good. Anybody who is doing any of these crimes should be scared. I am talking about the second pillar in the Criminal Code with respect to sentencing, and that is deterrence. Let us hope it deters some of the young and inexperienced and ma and pa producers. That is a good thing. However, it will not deter organized crime.

Bill C-14 and Bill C-15 are somewhat related, and although they deal with organized crime, they do so in a fashion which, without changing the definition in the code, might not have the effect that we are all hoping for.

The Canadian public has to be aware that just because two bills came forward and just because they seem to be targeted at very specific, acute and well-known problems today, that does not mean those problems are going to be fixed tomorrow. It would be leading the Canadian public down a road of false hope if the Canadian government, represented by its Attorney General, got in front of a camera again and suggested that this is all going to be fixed. He has been saying that since I first got here, and it has not been fixed.

Another important element is that these mandatory sentences have been tried in other jurisdictions. Mandatory drug penalties have helped turn the United States into the world's leading jailer with more than 2.3 million people in prison, according to the International Centre for Prison Studies in London. The U.S. also has the highest per capita rate of incarceration, with 751 people in jail for every 100,000 in population. That is more than Russia, more than China, more than Canada.

No one on this side is against incarceration for people who do wrong. No one is against that, but to think it is a cure for the problems that ail us, to think that is the only solution is wrong. That the government, in doing this, has not committed adequate resources for the facilities that will incarcerate them is also the double end of the false hope that Canadians might have in this situation.

With that, and in conclusion, as a member of the committee I continue to hope that we will work in a very non-partisan fashion as we have in this Parliament. I compliment the two parliamentary secretaries. I look forward to reviewing the bill.

Criminal Code

[The Acting Speaker, Conservative, Barry Devolin]

Resuming debate.

There being no further members rising, pursuant to order made earlier today, Bill C-14 is deemed read a second time and referred to the Standing Committee on Justice and Human Rights.

(Motion deemed adopted, bill read the second time and referred to a committee)