Bill C-42 (Historical)

Ending Conditional Sentences for Property and Other Serious Crimes Act

An Act to amend the Criminal Code

This enactment amends the Criminal Code to eliminate the reference, in section 742.1, to serious personal injury offences and to restrict the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life and for specified offences, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years.

[Rob Nicholson, Conservative, Minister of Justice]

Thank you very much, Mr. Chairman. I'm pleased to be with you once again, this time on Bill C-42, An Act to amend the Criminal Code (Ending Conditional Sentences for Property and Other Serious Crimes Act). This bill will contribute to people's confidence in the criminal justice system by proposing additional restrictions to the use of conditional sentences of imprisonment.

I know this committee is quite familiar with the issue, given the amendments that took place in 2007. To understand why we're pursuing other reforms, I'd like to say this. Conditional sentences became a sentencing option over 13 years ago with the proclamation in September 1996 of the sentencing reform bill. Conditional sentences were to provide an intermediate sentencing option between probation and incarceration to permit less serious offenders to remain in the community under strict conditions: their sentence was less than two years; the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community; and the offence was not punishable by a mandatory term of imprisonment.

In 2000, the Supreme Court of Canada held in Regina v. Proulx that a sentencing court must first find that a sentence of imprisonment of less than two years is appropriate, before considering whether the sentence can be served in the community under a conditional sentence order. In other words, a court must be of the opinion that a probation order and/or a fine would not adequately address the seriousness of the offence; a penitentiary term would not be necessary to do so; and a sentence of less than two years would be appropriate. Once this decision is made, a court would then determine whether the sentence of imprisonment of less than two years may be served in the community, bearing in mind the other prerequisites in section 742.

A number of observers, including some of my provincial and territorial colleagues, became increasingly concerned with the wide array of offences that received conditional sentences of imprisonment. By the time our government assumed power in 2006, it had become clear to us that further limits to the availability of conditional sentences were needed. We responded to those concerns when we tabled Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment) on May 4, 2006. It was referred to this committee a month later, in June. Bill C-9, in its original form, proposed to eliminate conditional sentences for offences prosecuted by indictment and punishable by a sentence of 10 years or more.

It was, and still is, the opinion of this government that offences prosecuted by indictment and punishable by a maximum term of imprisonment of 10, 14 years, or life are serious offences that should not result in a conditional sentence order. This is so, even if the court ultimately finds that a sentence of less than two years is proportionate to the circumstances of the offence. Bill C-9, as originally drafted, would have caught serious crime, such as weapon offences, offences committed against children, and serious property crimes. However, Bill C-9 was amended so it would only capture terrorism offences, organized crime offences, and serious personal injury offences as defined in section 752 of the Criminal Code--those that are punishable by a maximum of 10 years or more and prosecuted by indictment. This was similar to the approach taken in Bill C-70 that the previous government had tabled in the fall of 2005, but died on the order paper.

The amendments to Bill C-9 created some strange results. First, the amendment to Bill C-9 created a situation whereby offences punishable by a maximum of 14 years' imprisonment or life are not all considered to be serious crimes. I shouldn't have to remind the members of this committee that these are the highest maximum available in the code.

Second, as a result of the amendments to Bill C-9, offences contained in the Controlled Drugs and Substances Act are not excluded for eligibility for a conditional sentence unless they are committed as part of a criminal organization. Consequently, the production, importation, and trafficking of a schedule 1 drug, such as heroin, would not be caught and would still be eligible for a conditional sentence of imprisonment. As members of the committee know, our government has proposed mandatory penalties for serious drug offences in Bill C-15. I therefore expect that when that legislation is enacted, as I hope it soon will be, these offences will be ineligible for a conditional sentence.

Third, the use of the term “serious personal injury”, as defined for dangerous and long-term offenders, was appropriated to serve as a limit to the availability of conditional sentences as a result of the amendments to Bill C-9. Up until that bill's coming into force on December 1, 2007, sentencing courts had only to interpret serious personal injury offence for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met, because that term only applied to dangerous and long-term offenders. Since Bill C-9 came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences.

A concern with the definition of serious personal injury offences is that serious property crimes such as fraud could still be eligible for a conditional sentence. We're all aware of the recent examples of the devastating impact of fraudulent conduct. Victims who have lost their life savings have called for strengthened sentences for these types of crime. It is difficult to disagree with their concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, would still be eligible for a conditional sentence, despite the reforms enacted in Bill C-9.

It's clear to me, and I suggest to many Canadians, that greater clarity and consistency are needed to eliminate the availability of conditional sentences for serious violent and serious property crimes. For these reasons, Bill C-42 proposes to remove the reference to serious personal injury offences in section 742.1 and make all offences that are punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for a conditional sentence.

Bill C-42 would also clearly make offences that are prosecuted by indictment and punishable by 10 years and result in bodily harm, involve the import-export, trafficking, or production of drugs, or involve the use of a weapon ineligible for a conditional sentence. While these elements of the legislation will significantly limit the ambit of the conditional sentencing regime, the addition of these categories would not exclude all serious offences prosecuted by indictment and punishable by a maximum of 10 years. Therefore, Bill C-42 lists specific offences prosecuted by indictment and punishable by a maximum sentence of 10 years that would be ineligible for a conditional sentence. These include prison breach, luring a child, criminal harassment, sexual assault, kidnapping, trafficking in persons, abduction, theft over $5,000, breaking and entering a place other than a dwelling house, being unlawfully in a dwelling house, and arson for fraudulent purposes. In addition, once Bill C-26 comes into force, conditional sentences will no longer be available for the proposed offence of auto theft. The bill is presently before the Senate.

Mr. Chairman, conditional sentences are an appropriate sentencing tool in many cases, but their use does need to be restricted when it comes to serious property and serious violent offences. A more prudent use of conditional sentence orders should strengthen confidence in the sanction and the administration of justice.

I'd like to conclude by saying, Mr. Chairman, that passage of Bill C-42 is an important step towards more just sentences that will protect our communities, our families, and respect our sense of justice. The use of conditional sentences for less serious offences and less serious offenders, as was intended when they were first created, will improve public confidence in criminal justice.

I hope this will receive quick consideration by this committee and we'll get this matter back into the House soon.

Thank you very much, Mr. Chairman.

[The Chair, Conservative, Ed Fast]

No. First of all, the agenda spells out what he'll be addressing, in order. The other thing is that he has brought counsel on Bill C-42 with him, whereas counsel on the supplementary estimates will be here later in the meeting.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Excuse me, Mr. Minister.

I would like some information. Since we have the minister for two hours, until around 5:30 p.m., and we have to study the Supplementary Estimates, should we not give the Minister — this is just a suggestion — the opportunity to talk about Bill C-42 as well as the Supplementary Estimates so that we do not have to go back. We could ask questions about the Supplementary Estimates or Bill C-42. I don't know if that would be acceptable to the Committee members, but it might save us some time.

[The Chair, Conservative, Ed Fast]

All right. I've taken note of that.

Hearing no further comments, we'll then move ahead with the schedule as we've agreed.

Minister Nicholson, it's good to have you back. You're here for the first hour on Bill C-42, which is An Act to amend the Criminal Code (Ending Conditional Sentences for Property and Other Serious Crimes Act).

I understand you have with you the acting director general and senior general counsel, Catherine Kane, as well as Matthias Villetorte, who is counsel with the criminal law policy branch.

I welcome all three of you.

Minister, you know the drill. You have ten minutes and then we'll open the floor to questions.

Monsieur Lemay.

Status of Women

[Helena Guergis, Conservative, Minister of State (Status of Women)]

Mr. Speaker, I would like to thank the member for Sarnia—Lambton for the work that she has done to end violence against women.

For Status of Women Canada, one of our key pillars is ending violence against women. We are in fact supporting hundreds of projects across the country that address the number of faces of violence against women and children.

We have also taken a number of initiatives. We have introduced and passed the Tackling Violent Crime Act. We have made significant investments in policing. We are supporting Sisters in Spirit. We also introduced most recently Bill C-42 to end house arrest and conditional sentences for violent sexual crimes. We hope the opposition will support us.

Criminal Code

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Madam Speaker, in my career as a criminal lawyer, my most important client was always the one in front of me, whom I had to defend before the court. It is worth repeating: justice issues are very important. I do not mean to denigrate the work of other members, because I respect what they do, but this work is very important because it gives people their freedom. We must give this the attention it deserves.

As a parliamentarian and a lawyer, when someone forgets—I was going to use another word, but I will avoid it so as to avoid a point of order—deliberately or not, to hand over documents or to give us the information we need to make decisions, I take exception to that. In fact, I think I should take exception more often.

Bills C-52, C-42, C-36, C-31 and C-32 need to be studied immediately. Should they be studied quickly? No, we will take our time and give them the careful consideration they deserve, as we should and as we are expected to do. Then we will see.

For now, the issue that concerns me is Bill C-36. In my opinion, we must take time to give it the consideration it deserves. The Conservatives must stop forgetting to give us the documents needed to study this bill.

[Rob Nicholson, Conservative, Niagara Falls, ON]

First of all, Monsieur Petit, let me thank you for all the work that you have done for the victims. I want to thank you for that leadership role, particularly within the province of Quebec, and your willingness to meet with victims, your empathy with them, your understanding of what they've gone through, and your commitment to do something about the situation that victims find themselves in. It is very commendable and I'm very appreciative of that, as I'm sure all members of the House of Commons are for your work in that area.

You commented on one particular case. I never comment on a particular case, but I will say in general that one of the provisions in this bill is something that I think is of comfort to a lot of people, no matter how long these individuals serve their prison sentence—and we are going about making sure that they do serve substantial time for the heinous crimes they have committed—which is to have the provision in here for the first time that a prohibition order can be issued by a judge for up to life against these individuals, prohibiting them from handling other people's money or finances either on a professional basis or even on a volunteer basis.

As you know, victims will tell us that they know of instances when people who will eventually be released from prison, when they're released, will immediately get back into this kind of business, handling people's money one way or another. This unfortunately is the only business they know, handling people's money and doing it in a fraudulent manner. So to be able to give that prohibition order for up to life against that individual, to prohibit them from dealing with other people's money and making it another offence if they in fact do engage in that, I think are all steps in the right direction.

But you are quite correct that in our discussion with victims we say this is one part of what we are trying to do with this particular piece of legislation. The Retribution on Behalf of Victims of White Collar Crime Act, this bill, is one part of it, but as I indicated to Monsieur Guimond, our colleague the Minister of Public Safety is coming forward with a bill getting rid of accelerated parole, one-sixth provisions. This is another thing that has considerable appeal among people who want to see justice and fairness in the system. That's one piece of legislation.

But you mention as well Bill C-9 in the previous Parliament, which was to get rid of conditional sentences or house arrest for a whole wide range of serious crimes. I can't speak for the opposition parties—I'm sure they'd want to do that for themselves—but they took out the provisions that related to fraud. So, unfortunately, today, despite the best efforts of people such as you or Mr. Moore, who is the other parliamentary secretary, and our other colleagues here, it's still the law in this country that you can be convicted of serious fraud yet still be eligible for house arrest. We very much disagree with that.

We have introduced the bill again, Bill C-42, which is now before Parliament. I'm hoping that our colleagues in the opposition will reconsider the position they took in the previous Parliament and say they are going to put an end to this; they are going to put an end to people who commit serious crime being eligible to go home after they have been convicted. This is not what Canadians want.

So I thank you for raising that with me, because as you say, when we talk to people who are victims, who are concerned about this area, we always say we have to get this bill passed, this is an important component of what we have to do, but there are other measures, and I assure them and they know by the evidence that we are prepared to help them in other areas. You've identified a couple of those areas and I thank you for that.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Thank you, Monsieur Guimond. You're very generous with those areas that you think I should take over. You started with the public safety minister, even the finance minister, and all those....

Again, this is very targeted. It's very specific. It makes sense. I think you will find that people within your constituency and those who you speak with will be very supportive of the measures we are taking here.

One of the things we've done is to make the whole system more user-friendly for victims of crime in terms of the impact it has, requiring the crown to have a look at the requests and making sure these are available.

With respect to the accelerated parole provisions, again, we're moving on those. My other colleagues are having a look at this.

In and of itself, I think, this a positive move. I know that if you're in the opposition, you're always saying that there's some other bill we could be doing. But this is specifically targeted at those individuals who commit white collar crime. I think these are all very reasonable provisions. I'm hoping that the Bloc will have a look at this and say, “Okay, let's do it.”

I have another bill, as you know, to get rid of conditional sentencing. I don't think people who get convicted of fraud should have the ability to go home on house arrest afterwards.

Yes, I want you to pass this bill, but I can also make the pitch that I'd like to see you pass Bill C-42, which gets rid of house arrest for people who commit fraud.

In one sense, I agree with you. Is this the whole show? Is this the whole package? No. It is not the whole package. The bill on getting rid of accelerated parole is an important component of what we have to do, as is getting rid of house arrest for those fraudsters; I have a real problem with that. I know you've heard me before on this, but the idea that you can be convicted of fraud and then get sent home afterwards, or have the ability to get sent home, I have a problem with.

Anyway, that's another bill for another time.

Thank you for your question.

[The Honourable Rob Nicholson, Conservative, Rob Nicholson]

Thank you very much, Mr. Chair.

The short title of this was just pointed out to me. You can refer to it as the Retribution on Behalf of Victims of White Collar Crime Act. It's also known as Bill C-52. This enhances the sentencing provisions for fraud, in particular white collar crime.

The Criminal Code already criminalizes a vast array of what could be called white collar crime, such as bribery, credit card fraud, and forgery, and with the passage of Bill S-4, identity theft, Mr. Chairman. I'm glad to get that one passed. That's an important contribution in this area.

The offence of fraud is the most important offence in our arsenal against white collar crime. Fraud consists of two elements: deception or dishonesty, coupled with an actual loss of money or other items of economic value or merely the risk of such loss. So you can see the breadth and flexibility of this offence is adequate to capture security-related frauds like accounting frauds that overstate the value of securities issuers to shareholders and investors, misstatements about the state of the company, or Ponzi schemes of this sort, which has attracted so much attention recently in the United States and Canada.

The fraud offence is also an effective weapon against other kinds of fraud, such as mass-marketing fraud, real estate or title fraud, home renovation fraud, health care fraud, or other kinds of insurance fraud, tax evasion, and old scams now perpetrated with new technologies.

For too long I believe our justice system has not focused enough on the scam artists who take advantage of the trust of others. With the global economic downturn, as I indicated, massive Ponzi schemes have been revealed. I think that underlines the point we've made here and in the House of Commons and to the public at large that we must send a new, stronger message in this area.

The government has a comprehensive plan for sending that message. As members of the committee, you are all aware that the key aspect of the government's response is Bill C-53, which eliminates accelerated parole under the Corrections and Conditional Release Act. This is the responsibility of the Minister of Public Safety, but of course it is a legislative initiative I strongly support.

Another piece of our plan is Bill C-42, which will put an end to conditional sentences for fraudsters, among others.

Let me return to Bill C-52, the Retribution on Behalf of Victims of White Collar Crime Act. To improve the law quickly the government wanted this piece of legislation to be entirely focused. For this reason, the various sentencing measures in this bill are targeted at fraud offenders specifically. The current maximum penalty is 14 years imprisonment, the highest maximum in the code short of life. The maximum sentence is adequate, but we believe that more can be done to ensure that sentences reflect the devastation caused by fraud.

The first amendment in Bill C-52 is a mandatory penalty for fraud in excess of $1 million. Fraud over $1 million is currently a statutory aggravating factor. This bill will convert that aggravating factor into a circumstance that results automatically in a mandatory penalty of at least two years in prison. Any fraud or series of frauds that result in the loss of more than $1 million must necessarily have been the result of a complex, well-organized, well-planned scheme and quite likely supported by additional crimes, like forgery. Any fraud that rises to this level of loss must be considered serious.

Many frauds, as we know, are larger than this, so it's important to be clear that two years is the floor, not the ceiling. The actual sentence imposed for a larger fraud will obviously reflect all the additional blame for the elements of that fraud, many of which are captured by existing aggravating factors under section 380.1 of the code. This bill will supplement those aggravating factors with new ones if the duration, complexity, magnitude, or degree of the planning was significant; if the offence had a significant impact on the victim, given their personal circumstances; if the offender failed to comply with applicable regulatory or licensing regimes; or if the offender concealed or destroyed relevant records.

All of these factors highlight, in one way or another, conduct or results that are completely unacceptable to Canadians. The new aggravating factors, in conjunction with the existing ones, will be applied by sentencing courts to arrive at a just sentence on the particular facts of each case.

Another new measure is the introduction of a prohibition order that can be part of the sentence. The Criminal Code has several prohibition orders in place that are designed to help prevent offenders from reoffending. One such example is the order that is often made against a person convicted of a number of child sexual offences. The order, for instance, could prohibit them from, among other things, working in schools or other places where they would be in a position of trust or authority over young people.

Along the same lines, this bill will enable the court to order that the convicted offender be prohibited from having control over or authority over another person's money or real or valuable securities--up to life. Breaching this prohibition order will itself be an offence.

Other aspects of Bill C-52 focus on improving the responsiveness of the justice system to the needs of victims. It contains provisions designed to encourage the use of restitution orders in fraud cases. The Criminal Code currently enables judges to order offenders to pay restitution to victims in appropriate circumstances. Restitution may be ordered to help cover monetary losses incurred by victims, among other things as a result of the loss of property caused by a crime. Bill C-52 would require judges to consider restitution in all cases in which an offender is found guilty of fraud. If a judge decides not to make a restitution order, he or she would have to give reasons for declining to do so.

The bill would require a judge, before imposing a sentence on an offender, to inquire of the crown whether reasonable steps had been taken to provide victims with an opportunity to indicate whether they are seeking restitution. This is designed to ensure that sentencing does not take place before victims have had a chance to indicate that they would like to seek restitution from the offender, as well as allow time for victims to establish their monetary losses.

The bill contains provisions aimed at encouraging courts to consider the impact that fraud can have, not only on individuals but also on groups and communities. The Criminal Code currently requires courts, when sentencing an offender, to consider a victim impact statement describing the harm done to or the loss suffered by a victim of the offence. Canadian courts have already in previous cases considered impact statements made on behalf of a community.

This bill would explicitly allow courts to consider a statement by a person on a community's behalf describing the harm done to or the losses suffered by the community when imposing a sentence on an offender found guilty of fraud. A community impact statement would allow a community to express publicly, and to the offender directly, the loss or harm that has been suffered in order to allow the community to begin a rebuilding and healing process.

Mr. Chairman, those are the major elements of this bill. I look forward to the speedy passage of this important piece of legislation.

Thank you.

Business of the House

[Jay Hill, Conservative, Leader of the Government in the House of Commons]

Mr. Speaker, in relation to what day the House will be doing its annual tributes to the sacrifices of our veterans and those in the Canadian Forces currently serving, that will be under negotiation. I suspect that is something that will be discussed among all House leaders in the days ahead. We will decide, obviously, collectively and co-operatively on the appropriate time to make that important tribute.

In regard to our ongoing justice program, obviously we are going to continue along, as we have last week and this week, for the remainder of the week with our justice legislation. I would note that since my last statement, we introduced Bill C-53, Protecting Canadians by Ending Early Release for Criminals Act, and Bill C-54, Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act. Both of those additional bills are a key part of our ongoing efforts to reform the justice system in our country.

We sent to committee this week Bill C-42, Ending Conditional Sentences for Property and other Serious Crimes Act; Bill C-52, Retribution on Behalf of Victims of White Collar Crime Act; Bill C-46, Investigative Powers for the 21st Century Act; and Bill C-47, Technical Assistance for Law Enforcement in the 21st Century Act.

By the day's end, we hope to conclude debate on Bill C-43, Strengthening Canada's Corrections System Act. If we do that, I intend to call Bill C-31, the modernizing criminal procedure bill, and Bill C-19, the anti-terrorism bill.

Tomorrow we will continue with yet another justice bill, Bill C-35, Justice for Victims of Terrorism Act, followed by the remainder of the justice bills that I noted if they have not been completed.

Next week I intend to call Bill C-50, the employment insurance for long tenured workers' bill, which is at report stage, having had it returned from committee.

Following Bill C-50, we will call for debate the report and third reading stage of Bill C-27, Electronic Commerce Protection Act, and second reading of Bill C-44, An Act to amend the Canada Post Corporation Act,

Finally, Wednesday, November 4, will be an allotted day.

Investigative Powers for the 21st Century Act

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to rise here today to speak to Bill C-46. We will probably study Bill C-47 either later today or tomorrow. Bills C-46 and C-47 are very closely related to each other and, for those watching us, have to do with cybercrime.

It appears that the Canadian government has finally entered the 21st century and wants to address the very serious problem of cybercrime. Before going into the details, I would like to give some background. There was a convention, if we can call it that, known as the convention on cybercrime. That convention was the subject of many meetings. In fact, there were 27 different versions of the convention on cybercrime before the final version was drafted and signed by many countries, including Canada, the United States, Japan, South Africa, and even the Council of Europe. All the countries that signed the convention undertook to introduce one or more bills to implement the convention on cybercrime. That is precisely what the government is doing here today.

We can examine the technical details of the bill in committee. Yes, the Bloc Québécois agrees that Bill C-46 should move forward and be referred to the Standing Committee on Public Safety and National Security. This will also probably be true for Bill C-47.

Bill C-46 should allow police forces to adapt their investigative techniques to modern technologies like cellphones, iPods, the Internet, as well as social networking sites like Facebook and Twitter that link today's online world. This bill will give police forces access to such technologies.

When a bill like this is introduced there is one thing the government and parliamentarians must not forget: the bill must not infringe on basic rights even though we are trying to properly equip our police forces to deal with crime. All of this is being done in response to what happened in 2001. Even though we know that work on cybercrime began in 1995, the events of September 2001 had a substantial impact. That is when governments realized they did not have the means to intercept certain communications. Before and after 1995, and even before and after 2001, surveillance was used. It was very easy to realize you were being followed. We are not talking about a James Bond movie here. We are not nearly as sophisticated as the show 24, where the characters are totally equipped to deal with crimes of this nature. We needed to find tools to help deal with cybercrime and make them available to our police forces.

Cybercrime is very subtle and very insidious. It is everywhere today. The members opposite, especially those from the Conservative Party, talk about the luring of children or what some people attempt to do with computers, namely slowly but surely approach children to have sexual encounters.

It is much more than that. I am not saying that the luring of children is not a serious crime, far from it. This is an extremely serious crime. There are also other crimes that are much more subtle, including identity theft and the planning of major crimes. Just look at the London subway bombings. They were planned right here in Canada. Somewhere near Toronto, attacks were being planned with global targets. Here in Canada, the police thanked an individual whose assistance was instrumental in foiling a crime about to unfold in Great Britain.

Cybercrime has become a global phenomenon. Today, we cannot simply say that cybercrime only occurs in Canada, Quebec, or Ottawa and the surrounding region. Cybercrime is a global phenomenon and it has to be addressed globally. That is the purpose of Bill C-46 and Bill C-47, which we will study in the coming days.

There is something worrying me. We will have to carefully study the intrusion into the personal life of an individual. I hesitate to say this because the line between the intrusion into the rights of an individual versus the protection of society is increasingly blurred. We will have to keep a very close eye on this as we study the bill. We must ensure that citizens do not run the risk of being more vulnerable to an intrusion into their private lives. I do not think that anyone in this House is against adapting legislation to the new realities in technology and crime.

I believe that it is abundantly clear that criminals, especially those working on the Web, are brilliant for the most part. Anyone who can use such tools as Facebook or Twitter and the whole Internet is intelligent enough to hatch a good plan for a crime.

We are very close to that reality when we see someone using their cell phone, sending coded messages and providing information over the Internet. We have to follow this up. I will give the example of the transfer of “illegal” funds to tax havens. I spoke about this when debating Bill C-42 and Bill C-52. Today, criminals who use computer technology are increasingly smart. Thus, police forces must be equipped to deal with them. That is the objective of Bill C-46.

Technologies do not just benefit criminals and are also available to police. The Bloc Québécois believes that it is important and rather urgent for police to be equipped to detect not just crimes that have been committed, not just those about to be committed, but those that are being planned. We have to be one step ahead of the criminal planning a crime and able to intervene before an offence is committed. That is the objective of Bill C-46.

However, we must avoid allowing the police to use their investigative tools to gain access to a very large amount of information—it goes that far—but we must also monitor some peoples' activities on the Internet to learn more about their private lives. It goes far beyond listening to telephone conversations. This bill goes much further than that.

However, we must find a balance between the fundamental rights to privacy and safety. That is what this is all about. Is the right to privacy more important that the right to safety? That line is easily crossed by police officers or unscrupulous individuals.

We must remember that some police offers were convicted of having used the computer system of the Société de l'assurance automobile du Québec to monitor a spouse's new friend and watch over the movements of that individual. Those police officers were convicted because they had taken private information.

We must be very careful, and this will probably be the most important debate over the next few months. The Ligue des droits et libertés has raised some concerns. We must be careful, we must be prudent, we must be aware, and we must realize that there could be some slip-ups. When it comes to truly addressing security concerns, is protecting the rights of individuals less important than protecting society? That is a debate that will have to be held when the time comes to examine the bill in committee.

It is clear, and I would like to share a little about what the Ligue des droits et libertés has said. According to the Ligue, the bill constitutes an unprecedented invasion of privacy. It has brought up the following points. The government is presenting its bills as a way to make the necessary changes to traditional investigative powers for electronic surveillance to adapt to new communication technologies. But there is no comparison between the information transmitted through a telephone conversation and information that circulates freely.

Moreover, unlike telephone conversations, which leave no trace unless they are recorded, modern communications leave a trail in computer memories that can be detected long after the fact. That is a very important point, and I hope that nobody in this Parliament or in Canada or Quebec believes that once an email has been sent, it is over and done with. Unfortunately for them, I have bad news, because when people send an email using their computer or even their BlackBerry, there is always a trail. Their hard drives retain information about every email ever sent, and that information can be retrieved. That is where we find ourselves in a grey area.

But the Ligue des droits et libertés adds that everything we do in our everyday lives could come under police investigation. They will have access to lists of the websites we visit, emails we send and receive, credit card purchases, purchases of all kinds—clothing, books, winter gear—our outings, our movements abroad and in Canada, gas purchases, on-line and ATM banking transactions and medical information. Naturally, the list might get even longer.

We have to be prudent. I do not necessarily share all of the concerns expressed by the Ligue des droits et libertés, but they are urging us to be prudent. As parliamentarians, we have to use our judgment. We have to tell police forces—the RCMP, the Sûreté du Québec, the Ontario Provincial Police and other police services in large municipalities—that there are lines that must not be crossed once Bill C-46 is passed.

I firmly believe that one thing is for sure: police forces must have the tools they need to deal with crime in the 21st century. Yes, armed robberies and bank heists are still happening, although less frequently according to the latest statistics. We still hear about corner store hold-ups and all kinds of other assaults. But there is now a new kind of crime called cybercrime. We have been looking for ways to fight it since 1995. We have to make sure we have the tools to do that.

I listened closely to what the Ligue des droits et libertés said, and I feel that we have to be careful. The Ligue says that the bill provides little or no protection against unreasonable seizures without a warrant. The authorities will be able to obtain subscriber data even though the Personal Information Protection and Electronic Documents Act recognizes that this information is private. This is provided for in Bill C-47, but the authorities could still obtain this information. Without a warrant and on the basis of a suspicion, an officer will be able to ask a service provider to keep the contents of all your communications. It is like asking the post office to photocopy all your mail in case something should happen. I feel that people may go a bit too far sometimes, but this serves as a reminder that we must be cautious. I do not necessarily share the views of the Ligue des droits et libertés, but as politicians, we have to listen to both sides of the story.

The Ligue des droits et libertés also says that with a warrant obtained on the basis of a mere suspicion, an agent will easily be able to compel the service provider to turn over all its lists and so on. I believe that this is a bit dangerous, and we will have to address it when this bill is studied in committee. The Ligue added that with a warrant, which can be obtained on the basis of reasonable grounds to believe—less stringent conditions than for wiretapping—the content of your communications could be intercepted.

Certainly, what the Ligue des droits et libertés is saying is important. It is calling on parliamentarians to be careful when we print and pass legislation, but especially when we apply it. Once the law is passed, it may be too late to amend it. I will say one thing right now: police forces must be equipped to deal with cybercrime and 21st century crime. It is clear that crime prevention is one promising solution. The police will need to be able to prevent such crimes, and that takes equipment.

Obviously, the authorities have to try to uncover a plot before it is carried out. Once a crime has been committed, it is a little late to intervene, even if the criminals are brought to justice. In closing, if the authorities can thwart the crime before it is committed, I believe that this bill is a step in the right direction.

Ending Conditional Sentences for Property and Other Serious Crimes Act

[The Acting Speaker, Barry Devolin]

The House will now proceed to the taking of the deferred recorded division on the motion at the second reading stage of Bill C-42.

The House resumed consideration of the motion that Bill C-42, An Act to amend the Criminal Code, be read the second time and referred to a committee.

[Jim Maloway, NDP, Elmwood—Transcona, MB]

Madam Speaker, I am very pleased to speak to Bill C-42.

At the outset, I want to thank the member for Sackville—Eastern Shore for a fantastic speech. He does that all of the time; almost every speech I have heard him make in the House has been excellent. He certainly caught the minister unaware. The member for Sackville—Eastern Shore signed on to the even earlier gun bill. He was one of the MPs who endorsed the bill by signature. The member for Sackville—Eastern Shore has certainly been on the record for a long time on this issue. The Minister of State for Democratic Reform should rest easy and sleep well knowing where the member for Sackville—Eastern Shore stands on this issue.

BillC-42, an act to amend the Criminal Code to end conditional sentences for property and other serious crimes, was given first reading in the House of Commons on June 15, 2009. The bill amends section 742.1 of the Criminal Code, which deals with conditional sentencing, to eliminate the reference to serious personal injury offences. It also restricts the availability of conditional sentences for all offences for which the maximum term of imprisonment is 14 years or life, and for specified offences prosecuted by way of indictment for which the maximum term of imprisonment is 10 years.

Conditional sentencing was introduced in September 1996. It allows for sentences of imprisonment to be served in the community rather than in a correctional facility. It is a midway point between incarceration and sanctions such as probation or fines. The conditional sentence was not introduced in isolation but as part of a renewal of the sentencing provisions in the Criminal Code. These provisions included the fundamental purpose and principle of sentencing. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The renewed sentencing provision set out further sentencing principles, including a list of aggravating and mitigating circumstances that should guide sentences imposed.

The primary goal of conditional sentencing is to reduce the reliance upon incarceration by providing the courts with alternative sentencing mechanisms. In addition, the conditional sentence provides an opportunity to further incorporate restorative justice concepts into the sentencing process by encouraging those who have caused harm to acknowledge this fact and to make reparation. At the time of their introduction, conditional sentences were generally seen as an appropriate mechanism to divert minor offences and offenders away from the prison system. Overuse of incarceration was recognized by many as problematic, while restorative justice concepts were seen as beneficial.

The provisions governing conditional sentences are set out in sections 742 to 742.7 of the Criminal Code. Several criteria must be met before the sentencing judge may impose a conditional sentence. There are at least seven provisions, and rather than read all seven of them, I will simply deal with two of the provisions.

One is that the sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years, where we are dealing with offences where the normal term of imprisonment would be two years or less. The other is that the sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. That is fairly self-explanatory. If there is a determination that the offender might cause problems in the community and endanger the safety, the offender would not be eligible for this type of sentence. The sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing, which are set out in sections 718 to 718.2 of the Criminal Code.

Insofar as the final criteria is concerned, among the objectives of sentencing are the following: the denunciation of unlawful conduct; the deterrence of the offender and others from committing offences; separation of the offender from the community when necessary; the rehabilitation of the offender; the provision of reparation to victims in the community; and the promotion of a sense of responsibility in the offender.

In addition to meeting the criteria, conditional sentences involve a number of compulsory conditions set out in section 742.3 of the Criminal Code. These conditions compel the offender to keep the peace and be of good behaviour, appear before the court when required to do so, report to a supervisor as required, remain within the jurisdiction of the court unless written permission to go outside of the jurisdiction is obtained from the court or the supervisor, and notify the court or the supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change of employment or occupation.

There have been examples where, in fact, people have chosen to go to jail rather than take this option because they felt that jail was less onerous on them than this route.

Depending on the circumstances, the offender must abstain from the consumption of alcohol or drugs, abstain from owning, possessing or carrying a weapon, perform up to 240 hours of community service, attend a treatment program approved by the province, or any other reasonable condition that the court considers desirable for securing the good conduct of the offender and for preventing the offender repeating the same offence or committing another offence.

The court must ensure that the offender is given a copy of the order and an explanation as to the procedure for changing the original conditions and the consequences of breaching any of those conditions that were agreed to.

Members can see that this is not a simple process. It is very involved. We know that conditional sentencing was enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing. All of this was happening in 1996, at a time when there was a lot of previous experience with minimum sentencing in the United States. I will get to that in a few minutes.

In the 1980s, the United States built lots of private prisons, which I am sure made a lot of private entrepreneurs rich, but at the end of the day, the crime rate did not go down, it went up. I have statistics on that which, as I said, I will get to in a couple of minutes.

Statistics Canada reports that conditional sentences still represent a small proportion of all sentences. In addition, the tendency in recent years has been to use conditional sentences less frequently. In 2003-04 conditional sentences accounted for only 5.3% of all admissions to adult correctional services. By 2007-08 the figure had actually declined to 4.7%. In 2007-08, of the 107,790 offenders being supervised in the community, the vast majority of them, 75%, were on probation, and only 16% were on conditional sentences, with another 5% on parole or statutory release.

Canada's incarceration rate in 2007-08 rose by 2% from the previous year, which was the third consecutive annual increase. By the way, the reason was that there were a growing number of adults being held in remand in provincial and territorial jails while awaiting trial or sentencing.

We know that on any given day in 2007-08 an average of 36,330 adults and 2,018 youths age 12 to 17 were in custody in Canada, for a total of about 38,348 inmates, which, by the way, is a rate of 117 people in custody for every 100,000 in population.

Let us look at some other countries. Canada is higher than western European countries and lower than the United States. For example, in 2007 Sweden had a rate of 74 people in custody per 100,000. The Canadian rate was 117 people per 100,000.

Guess what the rate is in the United States? The members of the government are experts on crime; they are tough on crime but not so smart on crime. They should know this figure. However, if they know the figure, they are not going to want to tell us what the figure is because it is an astronomical figure. It is 762 per 100,000.

So, here we have the United States right at the top, at 762 people per 100,000. In Canada, it drops way down, or seven times lower, to 117. Then in Sweden, it drops even lower, to 74. So, I think the government should be looking at what works.

Maybe the Conservatives should be looking to Sweden. They should focus their eyes over to Sweden and see what Sweden is doing there to see why its rate is 74 per 100,000. But, no, they do not that. They concentrate on the United States, which has seven times the number of people per 100,000. So, they are adopting a model that does not work.

I would never suggest that we adopt it because it comes from the United States or that we do not adopt it because it comes from the United States. We should be looking at what works.

I have said time and time again in this House that in the Manitoba environment, and the Minister of democratic reform knows this very well, we had a severe problem with, and we still have a severe problem with, auto theft. Although, one day a few months ago, we actually had zero auto thefts in Manitoba. Why did that happen? The government came to terms with the issue. It mandated immobilizers in cars. It also set up a task force within the police force to target the most serious 50 offenders, monitor them, chase them, get them off the streets and keep them off the streets, and that has shown a huge turnaround. That is what worked. And so, other jurisdictions are looking at that.

I think we should be looking at different jurisdictions. I am sure there are programs in the United States that do work. If anyone can find me one that works, in the United States, then I would applaud the government if it would look at the United States example and follow that example. However, it should not just blindly go in and say, “We are going to go on this program of mandatory minimums because it shows good in our polling results. We did some polling the other day and it showed that when we talk about mandatory minimums, our numbers went up 5%. So, we are going to do that”. And then we look at what the results were in the United States and we see it has seven times the number of people in jails. There is obviously a disconnect here.

I would admonish the government and suggest to the government that it look to Sweden, that it look to other countries that have lower rates and show success in certain areas, that it should adopt a program that is comprehensive but borrows the best, that it look at best practices in other jurisdictions and follows that, rather than just simply blindly following the opinion polls.

The imposition of conditional sentences should not only reduce the rate of incarceration, it should also reduce expenditures on the correctional system.

I always thought Conservatives were interested in sound financial management--

The House resumed consideration of the motion that Bill C-42, An Act to amend the Criminal Code, be read the second time and referred to a committee.