Bill C-526 (Historical)

Cracking Down on Organized Crime and Terrorism Act

An Act to amend the Criminal Code (sentencing)

This enactment amends section 718.2 of the Criminal Code to provide that, for sentencing purposes,
(a) evidence that the commission of an offence was linked to a group of three or more persons with a common criminal purpose shall be deemed to be aggravating circumstances; and
(b) evidence that the offence was a terrorism offence or an offence committed for the benefit of, at the direction of, or in association with a criminal organization shall be deemed to be serious aggravating circumstances.

Criminal Code

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

moved that Bill C-526, An Act to amend the Criminal Code (sentencing), be read the second time and referred to a committee.

Mr. Speaker, I thank all my colleagues who appreciate this government's stance on taking care of business as far as criminals go. I have seen more criminal laws come into place over the last 10 years, I think, than the previous 20 years. It shows the importance to this government of ensuring that we crack down on crime and protect Canadians.

I am very pleased to stand today in support of the bill. It comes about as a result of my own practice in law. I spent most of the 1990s practising criminal law and other forms of litigation in northern Alberta. During that time, I saw some very horrendous crimes that I felt did not have proper punishment, as a result of the inability of judges to, in essence, throw the book at people who are involved in more serious crimes. When I say that, I talk about crimes that I find particularly repugnant; those crimes that include more than two people, for instance, three or more people. Those people usually start with low-level crimes, where they are organized and they talk about it. Then they move on to higher-level crimes, if indeed they get away with them or the judicial system has no ability to crack down on them.

In particular, Bill C-526 would strengthen the Criminal Code's response to organized crime and terrorism. I know that terrorism does not happen very often in this country, thank goodness. However, we do have a situation where criminal organizations are very active in this country. Make no mistake, criminal organizations account for a very large amount of crime, more particularly the very serious nature of the crimes themselves, such as murders, arsons or things like that. Most serious crimes that include violence are more likely gang related and related to organized crime. This government has been committed to taking steps to ensure these crimes are treated as among the most serious in the Criminal Code.

I intend, today, through this bill, to allow judges more discretion at the final disposition of sentence and also to enable crown prosecutors to do what they do a lot of, which is plea bargaining, to get a situation that they may not receive a conviction on but that allows the judge to, in essence, throw the book at them at the time of sentencing.

This proposal is to amend the Criminal Code sentencing provision that sets out factors which should be considered to be aggravating or mitigating, in essence, aggravating factors. If they are involved in the crime themselves and the facts have been proven, the person would be found to be more liable and could receive a larger sentence. This means, as well, that the judge would increase or decrease sentence as a result of those factors that arose during the commission of the offence.

It proposes to amend the list of aggravating factors in two ways.

First, it would create a new aggravating factor for sentencing where there is evidence that an offence was connected in any way to a group of three or more persons who had a common purpose of facilitating or committing an offence under the Criminal Code or any act of Parliament.

Second, the bill proposes to create a new category of serious aggravating factors, which would include evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization, or there was evidence that the offence was a terrorism offence, which is very serious indeed.

This last amendment aims to send a very important message of public policy from our government and from all future governments; that is, that organized crime and terrorism offences are among the most serious offences in the Criminal Code and that the courts should not tolerate them. They should consider them to be even more serious aggravating factors, as specified in the Criminal Code.

These factors play an important role in the judicial process of determining an appropriate sentence for a convicted offender.

The Criminal Code actually enumerates some specific factors that Parliament considers to be aggravating or mitigating. This list is not exhaustive, but it would certainly give judges and the judiciary a specific direction as to how public policy should be placed on these people and how they should treat them when convicted. Factors in this provision must be taken into consideration by a judge. They are actually asked to consider them under this legislation.

However, a judge can also consider other aggravating or mitigating factors that arise in those particular cases. It would give judges the discretion, and it would clearly enumerate that this government, and, I, in particular, have faith in the judiciary. If given the proper tools, they will throw the book at these criminals who participate in such despicable behaviour.

There are strong public policy reasons to treat offences that are committed by three or more people with greater severity than offences committed by one individual. I do not think I need to go into detail on that. Most Canadians would agree that three or more people who are involved in an offence, who would commit some criminal behaviour, should be treated differently than those who are singularly involved. It shows more complexity and more of a desire to be involved in this type of element.

The Canadian Centre for Justice Statistics released a report in November of this year, entitled “Co-offending in Canada, 2011”, which examined co-offending trends in Canada. It defined co-offending as being crimes involving two or more accused people, and group crimes as being crimes involving three or more accused people.

Group crimes are what I am interested in with the first amendment. Group crimes only account for 3% of criminal incidents in Canada. Most people would say that is not a lot, but the truth is that for a number of reasons we should give more attention to these crimes. They are more serious in nature. As I mentioned before, when three or more people are involved in an offence, the offence usually involves more serious repercussions to individuals and victims. For instance, first, the offences are more likely to involve a firearm or another weapon. Second, when a violent crime is committed by a group, the chance that the victim will be injured or killed is much higher. Third, hate crimes, which are so despicable in this country, tend to involve groups or other individuals more than non-hate crimes. These statistics, although small in number, show that the repercussions and the impact on victims are much more serious than if they are incidents committed by a single offender.

These recent statistics also reveal that co-offending and group crimes are a trend that is more likely to be among young people, or youthful offenders. That is also a difficulty because these crimes, for youth, set the trend for them for future years. Judges need to be able to stop them at that age. The crimes that youth are involved in include breaking and entering, arson, robbery, possession of stolen property and theft. Indeed, there is no victimless crime in these types of incidents. There is also a connection between group crimes and co-offending and the eventual formation of more structured criminal enterprises for youth and others.

I have been told startling statistics, such as that it is 8% of crimes that are ever solved. If youth commit crimes with three or more people, they get away with them and are enriched by that behaviour, those people are more likely to continue to commit crimes. We need to give the tools to the judiciary to be able to stop them in their tracks so they change their ways.

There is also a connection in other ways to more serious crimes, and that would be involvement with organized crime. That is why I believe there has been a gap in the Criminal Code legislation for crimes committed by groups of three or more people and being able to punish them adequately to reflect the crime the offenders have been involved in. Although judges can already recognize the seriousness of the commission of a crime by a group at sentencing, Bill C-526 would specify that in every situation where three or more offenders are involved in an offence, this factor shall be taken into consideration. It would give less leeway in a way, but it instructs, on a public policy basis, that judges should take this more seriously and actually throw the book at these people.

Some may question how the aggravating factor differs from the existing aggravating factor for criminal organization offences. In order for a criminal group to fall within the definition of a criminal organization, the commission of the offence must also be motivated by a material benefit for the group. I am not going to go into it in great detail, but let us just say that the changes to the criminal organization offences have not been very effective.

I have worked in the trenches and I have seen what has taken place in criminal courts. I know how plea bargaining and crown prosecutors work, and I know how defence counsels work. Bluntly speaking, it is very difficult to prove that a person is a member of a criminal organization, that the criminal organization was involved, and that indeed the criminal organization is a criminal organization. I have been told, and we have heard it from a particular report, that it takes up to a week or two weeks to prove these particular offence traits and facts. Then they have to do that with every co-accused person, and every new person who belongs to a particular gang or criminal organization, for instance. It is very difficult to prove.

Although the facts are there, and it shows the factors in the Criminal Code relating to criminal organizations and how crown prosecutors can prove it, et cetera, the truth is that very few people were convicted under this provision over the last period of years that it has been in force.

The proposed new aggravating factor in Bill C-526 does not require an element of material benefit. The new aggravating factor would simply include situations where there is evidence that the offence was connected in any way to a group of three or more persons with the common purpose of facilitating or committing an offence under the Criminal Code or any act of Parliament.

While the existing aggravating factor of organized crime may overlap somewhat, and it is agreed it may somewhat overlap, the proposed new aggravating factor, the new factor that I have proposed, is less stringent and captures a broader range of offences. They are more simple to prove, as I mentioned. For example, this new aggravating factor could also apply to a number of different scenarios, such as breaking into a home or business to commit a theft; a sexual assault; offences, as I mentioned, that are motivated by hate, and drug trafficking and auto theft, to name just a few. That is provided, of course, that the offence is committed by a group of three or more persons.

The new aggravating factor would strengthen the Criminal Code because it would capture group crimes that do not meet the definition of organized crime. As I said, it is very difficult to prove. Group crimes may still be very serious, even absent the motive of material benefit. In fact, most Canadians would not understand why they have to prove material benefit under an organized crime scenario, such as in a sexual assault or hate crime. However, from my perspective, it is quite shocking that it is not included in the Criminal Code as such, and I believe there has been a gap that we can fill with this legislation.

While I have spoken at length about the benefits of the new proposed aggravating factor to address group crimes, I must also take a moment to discuss the second proposal. The objective of this new category is to send a message to the courts that these crimes are extremely serious and to give judges further discretion in relation to these types of crimes. I think most Canadians would agree that people who are involved in organized crimes or terrorism offences should have the book thrown at them. We do not want them in Canada. We do not want to encourage those people to be involved in these offences in Canada. We do not want them to do this at all.

When we find these people, we should be able to easily prove that they are those people. For instance, I think members would be surprised to find out that because it is so difficult to prove these offences and the facts of these cases, crown prosecutors have to plea bargain because they do not want these people to get off completely. Plea bargaining in essence means that prosecutors do not get everything they want. They are not going to be able to go to trial and find people guilty of every offence.

Crown prosecutors are going to ask how easy or difficult it will be to prove these three offences. If it is difficult to prove these three offences in criminal organizations, with the group crimes that I have proposed there is a gap that will not allow them to suggest it is going to take two weeks to go to trial, that it will take time and it will be very difficult prove someone is part of a criminal organization. What would happen now is that the crown prosecutor can say he or she does not need to worry about that criminal organization and to prove that fact. The prosecutor would only need to prove to the judge or justice that there were three or more people involved in the crime. Then the judge can give a more serious penalty, and in fact the judge has to take that into consideration.

I am open to possible amendments from the government or the opposition. I encourage all members to participate in the study of this particular bill. It is a great bill, and I cannot imagine anybody standing against it. However, of course there is always the chance that somebody might feel he or she could do a better job with some particular part of the bill. I am open to that.

I would urge the members of the House, in all parties, to support this bill at second reading so it can be referred to committee for further study. As we know, the ultimate goal of stiffer sentences being imposed on offenders who form a common intent to commit crimes is worthy of support. In many situations, the amendment would apply to gangs that may not meet the criteria to be considered for a criminal organization.

In closing, I consider this to be a very responsible approach to current crime trends and an important message to group crime and organized crime offenders. We will stand up for Canadians on this side of the House, and I believe in this particular case that all members of the House will do the same.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I thank the member opposite for his bill. We will have the opportunity to discuss it further.

Committing an organized crime or terrorism offence now constitutes an aggravating circumstance under paragraphs 718.2(a)(iv) and 718.2(a)(v) of the Criminal Code. Despite my colleague's somewhat inflated rhetoric—and I say this nicely—the only thing Bill C-526 changes is that it creates a serious aggravating factor. This new concept has never been tested in the Criminal Code.

I am trying to understand what he said, because we reviewed the case law on organized crime and terrorism offences and, according to that review, heavy sentences are already being imposed for these offences.

What would his bill be adding other than a certain lack of clarity? In inserting a new concept in the Criminal Code, namely a serious aggravating factor, are we not creating some legal uncertainty that the courts might find difficult to deal with?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, as I mentioned, I am open to possible amendments in that particular section of the bill.

I do understand some members have come forward, in particular on our side of the House when I briefed them, with some issues relating to that and muddying the waters or confusing the issues. I do not believe it does, just on the basis of my experience in court. I know the member has had some experience in court as well.

I do believe, however, that the three or more provision is a catch-all. I believe that fills a gap and would, in essence, make it much easier for crown prosecutors to prove their case, and if they cannot prove their case, much easier for crown prosecutors to make a reasonable plea bargain that would see that the accused and convicted would receive a more serious crime based on the facts of the particular case.

I look forward to the member's questions during committee. I certainly look forward to her experience being brought forward, to get a better bill, ultimately, which is why we are here.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I have a couple of questions for the hon. member.

I do not think there is anyone who rejects the general principle of the need for deterrence in serious crimes. However, I really wonder whether the bill is, quite frankly, a solution in search of problem.

I have two specific issues. First, there is a line drawn at three people. Why is it not two? Why is it not four? Is there some evidentiary basis for this decision to fix on three people? Is there some indicator in the stats that this is the cut-off at which we have seriously deficient sentences?

The other issue I am concerned about is the potential unintended circumstances of creating an elevated category of aggravating circumstances. By putting certain factors as “seriously aggravating”, do we not run the risk of some crafty defence counsel being able to successfully argue, “Well, this is a hate crime but it is not a terrorist crime. Hate crimes are only aggravating factors. Terrorist crimes are seriously aggravating factors. Therefore, you should go easy”?

Are we not running that risk by creating this new category? Are we not trying to fix something that is not broken?

[Brian Jean, Conservative, Fort McMurray—Athabasca, AB]

Mr. Speaker, while I appreciate that, I do not agree with the member. I do believe there is a break.

We heard from experts. We did a study on organized crime some two years ago in the justice committee. We heard from experts who said it was very difficult to indeed prove the fundamentals of organized crime. It is very difficult to get convictions in court. It is very difficult to prove the facts. Indeed, it costs a lot of money for taxpayers to be able to prove this.

I do not believe that at all. In fact, I would like to answer the question that the member first put to me in relation to the group and why three or more. The statistics are startling in relation to when three or more people are involved in a crime. They are usually much more violent crimes.

I think it takes more planning. It takes more people getting together for a longer period of time. It is a complicated situation, usually. It leads to more violent behaviour. As a result, victims are frankly left out in the cold. I have seen situations where three or more people have been involved in a simple assault and a person has died. If that was a one-on-one person crime, the likelihood of that happening is very minimal. Indeed, the statistics bear my argument out.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I always feel privileged to rise in the House to participate in a debate on a bill that is being introduced. There are two reasons for this.

The first is that I take very seriously our role as legislators, which is vested in us as elected members. In this role, I also act as justice critic. Every time a new bill has to do with my responsibilities, I study it carefully to learn its objective.

Then, when we gather the entire caucus of the New Democratic Party to discuss it—we do not really need democratic reform legislation to do this—I make a recommendation based on consultations that I make a point of conducting religiously and rigorously.

This sometimes leads to rather vigorous debate within our caucus, for example, with regard to why we support sending to committee bills at second reading that have me shaking my head. These are most often bills from the Conservative side, whether they are introduced by the government or a backbencher. I try to understand their reasons.

It is often the title of the bill that makes me realize that the Conservatives want to introduce some sort of bumper sticker legislation that is nothing but showy advertising, without any real content below the surface. We cannot be too careful. Sometimes, when we take a close look at something we can see there is nothing to it.

On this matter, I made a point of contacting people in the field of law whom I respect a great deal and who are often more knowledgeable than I am on matters of criminal law, including law experts at the Barreau du Québec. The president of the Barreau du Québec sent a response regarding Bill C-526, whose fancy title is the “Cracking Down on Organized Crime and Terrorism Act”, as I was saying to the member who introduced the bill in the House. The Conservatives are laying it on a little thick, but when you scratch the surface, there is very little to this bill. Here is the reply from the president of the Barreau du Québec.

The Barreau du Québec questions whether it is really necessary to expand the list of aggravating factors for the various offences in the Criminal Code, since we do not believe that this will help prevent the commission of the offences targeted in the bill.

In our opinion, forcing judges to conclude that there is an “aggravating” factor simply because three people committed a crime together, as opposed to any other number, is pointless in terms of the bill's objective, which is to protect the public.

This very simple reply goes directly to the question I asked my colleague regarding whether a Criminal Code provision already stipulates that terrorism and criminal organization offences are considered aggravating factors when someone is found guilty. This bill introduces the notion of a serious aggravating factor, and I have to wonder about this, since it is a concept that does not exist in the Criminal Code and could cause some problems.

However, there will be an opportunity examine it more closely. Given that our debates here are often limited, at committee is usually where we can do a more thorough examination and hear from experts who point things out to us that we may not have considered in a more superficial study at second reading.

I find the bill somewhat pointless overall. I am talking about it because this is perhaps one of the last “law and order” bills we will have the chance to look at before we break for the holidays.

When I have the honour of rising in the House, it is also because, above all, I respect my primary role, which is to represent the people of my riding of Gatineau. When I go into the community to speak with them, they talk to me about the justice system. The government is determined to blame the courts for everything that goes wrong, but the government itself is often at fault. Introducing small bills that serve no real purpose will not address certain issues.

I want to share with my colleagues a letter I received that deeply touched me because of my role as a legislator and as justice critic. However, I think that justice concerns us all, no matter what our role in our respective party.

Eric and Jill Faulks, grandparents who live in British Columbia, wrote to me as the NDP justice critic. They also wrote to the Minister of Justice. This is what they said:

Our 18 year old grandson, Travis Hurlbert, was killed in an automobile collision in Edmonton on July 24th, 2013.

It is hard for our family to consider this less than murder under the circumstances. We understand that the alleged perpetrator had a DUI against him in 2006, was fined 3 times in 2010 for driving while disqualified, and charged again in May 2012 but did not show up for his court date in July 2012. Police then issued a warrant for his arrest. A year later with his address apparently known, he was still free to kill.

That is a real-life situation. It relates to our daily lives. That is the kind of scenario that makes people, taxpayers, Canadians and Quebeckers question the justice system.

The justice system has several components. For example, one component consists of bills such as this one, which claim to address this and that. At the end of the day, they solve nothing. Laws exist, but there is a problem, and that problem is not the sentences being handed down.

Hon. members will recall that at one point this summer, the RCMP told us how long it takes to add offences to an individual's criminal record. That information was provided by the provincial justice departments. Even if an individual is sentenced to 12 years in prison, if the sentence and the fact that he was found guilty are not recorded in his criminal record, we can create every law imaginable and it will not do any good.

We have to give our police officers resources and put more officers in the field to make sure that a sickening individual like that cannot hurt anyone. He did not even bother to show up in court. There was a warrant for his arrest. He was not allowed to drive and was told so three or four times, but there he was behind the wheel again. If our society cannot do something about that, there is a problem somewhere.

I am not trying to downplay the importance of Bill C-526 and the kind of offences it is trying to cover, but there are more serious issues.

On the one hand, we have this bill, even though an aggravating circumstance already exists for the same kinds of offences, and the sponsor wants to bring in something new that will give lawyers an excuse to go on ad nauseam. On the other hand, on the ground, I need answers for the people who contact me as justice critic and ask me what I am doing with this. They want to know what we politicians are doing as Christmas approaches and they have to live without their grandson. I cannot fathom how they manage to sleep at night. I feel that they have failed dismally.

This letter is worth reading because it conveys beautiful ideas about life. These people could have wanted that man to die. Who would blame them? They lost their 18-year-old grandson, who missed out on doing all kinds of things. He had his whole life ahead of him. He was slain by a sickening man who should not even have been there, but who was because society failed dismally. Those people say that after the first offence, the offender needs help and society should try to reintegrate him properly. The second time around, people start asking questions. Whatever happened did not work because the person did not learn.

Yes, we will support Bill C-526 at second reading, but I would like everyone to think about something. Instead of fixating on this or that and paying people to come up with slogans and all kinds of bills, how about putting money where it is really needed? How about more police officers and more services to crack down on repeat offenders when we know that is what they are?

Judges can do everything in their power, but if they do not know that the person before them has already committed a crime, they cannot give the most appropriate sentence taking into consideration the fact that it is a repeat offence.

Shame on us for not really taking care of business the way it should be.

Merry Christmas.

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, today the Conservative member of Parliament for Fort McMurray—Athabasca is presenting his bill, another bill on crime.

I want to state from the outset and for the record how troubling it is to be presented with yet another private member's bill related to crime. I will not suggest today, though, as I often do, that the bill was prepared by the PMO and disguised as a private member's bill. I do not think even the PMO would have suggested a bill that does so little. I honestly believe that this is a solution seeking a problem.

Would it not be nice if, just for once, someone over there would use the opportunity of private members' business to place before the House a proposal that would actually make a difference for people, such as do something that would signal a nod to poverty or inequality, or acknowledge the fact that crime is often rooted in poverty and in mental health issues? Would it not be great if, just for once, someone over there would do something that was decent, rather than focus on or be motivated by an obsession with crime and punishment?

Would it not be great if the Conservatives would put some of that energy into actually helping to prevent crime by supporting community programming to help young people who, through no fault of their own, grow up in systemic poverty, who come from troubled families, and who are often exposed to addiction from early ages? Would that not have been a much better use of time and effort?

Instead, we get this, which is another so-called crime bill tinkering around the edges of the Criminal Code.

Why, I ask, did the member not present a bill that would tackle a real issue, such as the overrepresentation of aboriginals in the prison system? Why did he not put forth a bill calling for a national strategy to tackle poverty, which is again the root of much of the crime he and his party are so obsessed with? Why did he not put forth a bill that would help tackle addiction among young people, which is again the root of much of the crime he and his party are so obsessed with?

Why did he not put forward a bill to encourage more support for our veterans who suffer from PTSD?

Why did he not put forward a bill to address youth unemployment, which is so rampant in Canada, and which the government has done so little to address?

Why did he not produce a bill to remove political control over government to advertising and call for an independent watchdog so that we could finally do away with the over $500 million, and counting, of wasted government propaganda and unprecedented abuse of taxpayer money, all for the benefit of the Conservative Party? Why did he not put forward a proposal calling for sweeping changes to election fraud to put an end to the shenanigans his party now stands accused of?

Instead, we get another pointless bill that does nothing to help.

Such is the manner in which the Conservative government and its compliant backbench operate. They are so obsessed at showing themselves as being tough on crime that at times they seem to practically fall over one another to prove themselves.

To listen to the Conservatives, one would think that crime is rampant and that riots are breaking out across the country.

The Conservatives peddle in fear and propaganda for political party purposes. Part of peddling falsehoods about crime in Canada and part of the real purpose for all these crime bills is to raise money from the narrow-minded group they call their base.

The House knows the group of which I speak. It is the group of right-wingers who constitute the backbone of the Conservative Party. They are the people who loathe the Charter of Rights and Freedoms. They loathe it so much that when Canadians sought to honour its 30th anniversary, they ignored them. Instead, they issued a belated press release, and that was it. They issued a press release to honour the Charter of Rights and Freedoms. There was no year-long celebration of the charter, unlike the effort to worship the War of 1812, an exercise in propaganda that wasted millions of dollars in doing so. There was not a chance they would honour a document like the charter that actually makes a difference to Canadians, but for any 200-year-old wars used for propaganda purposes they would give $12 million.

What we have here are amendments to the sentencing provisions of the Criminal Code. As we have heard, these amendments create a new aggravating factor, one that fixes a number of three persons as the level at which something goes from not being an aggravating factor to being an aggravating factor.

Why three? Why not four? Why not two? Why not some other number? There is a real sense of arbitrariness that defies explanation.

The bill creates a new category of aggravating factors, a super-category called “serious aggravating factors”, and it lifts two of the aggravating factors presently contained in the code and elevates them to another level. They relate specifically to organized crime and to terrorists. Again, I say this is a solution in search of a problem. There is no indication, no evidentiary basis, on which to suggest that sentences for organized crime or terrorism are too light. If there were, why not increase the sentences?

We are tinkering with a coherent sentencing regime that is set forth within the Criminal Code, and this tinkering could have unintended consequences. By creating a new super-category, are we suggesting that in all cases a mobster is worse than a neo-Nazi? That is essentially the type of argument that this bill is bound to produce once it runs through the test of everyday litigation.

We in the Liberal Party believe in evidence-based policy-making. There is absolutely no evidence that sentences for organized crime or for terrorists are too low. In fact, the most recent example of a case involving a terrorist conviction and sentencing in terrorist cases is the Khawaja case in Ontario. In 2006, at trial, Mr. Khawaja was sentenced to 10 years. When it went to appeal, the appeal court found that the sentence was too light and sentenced him to life. That sentence was upheld before the Supreme Court of Canada, so there is no empirical evidence to suggest that there is a problem here.

We are concerned that an otherwise coherent sentencing regime is being tinkered with solely for political purposes. This is so that the opposition parties can be goaded into voting against a bill that is arbitrary and redundant for the sole purpose of appealing to the base. We support measures that deter organized crime and terrorism—everyone does—but the bill is redundant and arbitrary. It misses the mark.

I am pleased to hear the member say that he is open to suggested amendments from the government side and from the opposition benches. I hope he is genuine in that regard, because when this matter gets before committee, I expect we will be going on that search for some empirical evidence to justify what has been put in the bill with respect to the Criminal Code. If we do not find it, I would hope that the bill is going to be scrapped. If there is some other way to address what is a real evil, not a perceived evil, my hope is that we will have opportunity to deal with that.

The obsession with crime within the Conservative ranks is indeed troubling. Just recently we heard the Minister of Justice suggest that on arrest, we should be able to take a DNA sample prior to any conviction. This, of course, would undoubtedly be found to be wholly unconstitutional, but it sure would make the Conservative base happy as we gear up for what is likely to be a pending leadership.

This obsession with looking tough on crime, I would submit, should be of grave concern to the House and to Canadians. When will the Conservatives get tough on fighting poverty? When will they get tough on fighting climate change? When will they get tough on fighting for health care? When will they get tough on helping the most vulnerable? When will they stop putting ideology over facts and evidence? The only thing the government is tough on is the truth, and it is Canadians who will suffer as a result.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I am very pleased to rise today and have the opportunity to participate in the second reading debate of Bill C-526. The bill is an important initiative to strengthen the Criminal Code's treatment of organized crime and terrorism offences and is one that the government supports.

It is without doubt that organized crime and terrorism offences are among the most serious in Canada. One need look no further than the April 2013 arrests of individuals in Toronto and Montreal for alleged terrorism offences to know that the threat of terrorism is ongoing and ever-present. The terrorist threats Canadians face at home are most often connected with and inspired by developments in terrorist threats abroad. Homegrown violent extremists have been involved in attempts to recruit supporters, raise funds, or acquire other forms of support.

At the same time, organized crime has become increasingly widespread and sophisticated. Organized crime groups, including street gangs, exist in almost every region of the country and are involved in numerous illegal markets. In 2011 CSIS, Canada's criminal intelligence service, identified 729 organized groups in Canada. They estimate that illegal drugs make up 57% of the illegal marketplace in Canada. Financial crime, human trafficking, migrant smuggling, and the illegal movement of firearms, tobacco, and vehicles are also lucrative for organized crime in Canada. Criminal organizations also target vulnerable youth and recruit them into gangs to carry out illicit activities.

Bill C-526 complements the work already undertaken by our government to strengthen the Criminal Code's response to organized crime and terrorism.

With respect to organized crime, our government has introduced a number of other pieces of legislation. In 2008, Parliament enacted Bill C-2, the tackling violent crime act, which increased some mandatory minimum penalties for gun crimes linked with organized crime. In 2009, Bill C-14, an act to amend the Criminal Code with regard to organized crime and protection of justice system participants, was enacted. It deemed murders committed on behalf of criminal organizations to be first degree murder and created a new offence targeting drive-by shootings. Bill C-10, the safe streets and communities act, became law in 2012. It enacted mandatory minimum penalties for serious drug crimes, including those linked to organized crime.

The government has also introduced two bills to address terrorism. Bill S-7, the combatting terrorism act, came into force on July 15, 2013, and added four new terrorism offences to the Criminal Code. Bill S-9, the nuclear terrorism act, also created four new offences and came into force on November 1, 2013.

Bill C-526 proposes to provide further direction to the courts by adding to the existing enumerated list of aggravating factors that should be considered when sentencing an offender. It would create a new aggravating factor that would apply to sentencing when there is evidence that an offence was connected in any way to a group of three or more persons with a common purpose of facilitating or committing an offence under the Criminal Code or any other act of Parliament. This means that judges all across Canada would be able to justify the imposition of a serious penalty in cases of groups of three or more committing an offence together.

Bill C-526 also proposes to take two of the existing aggravating factors, those being terrorism and organized crime offences, and elevate them to a new category of serious aggravating factors, indicating to the courts that these offences should be treated more seriously than the other aggravating factors.

This codification of aggravating factors plays an important role in the ongoing dialogue between Parliament and the courts. They provide legislative direction to the courts that Parliament intends that in crimes in which these factors are present, a stiffer sentence should be imposed.

In situations where a prosecutor chooses to rely upon an aggravating factor in sentencing, and that factor has not been established during the trial as part of the offence for which the accused is convicted, the prosecutor must establish it beyond a reasonable doubt at the sentencing stage. In cases involving organized crime that are not charged under one of the specific organized crime offences, generally the onus is on the prosecutor to prove the existence of a criminal organization at the sentencing stage if it was not proven during the trial. In some cases, this can be challenged. For example, when there is no witness willing to testify as to the existence of a criminal organization, the crown must rely on evidence such as wire taps or undercover operations, which can be dangerous, expensive, and time-consuming endeavours.

It could appear that the new aggravating factors are simply a legislative attempt to sidestep the evidentiary hurdle by introducing a new aggravating factor that does not contain this requirement. This is not the case. There are important distinctions between the organized crime aggravating factor and the proposed factor we are debating today. While there is some overlap between the two, they describe two different situations.

The new aggravating factor would include situations where there is evidence that an offence was connected, in any way, to a group of three or more persons with the common purpose of facilitating or committing an offence under the Criminal Code or any other act of Parliament. While the existing organized crime factor may overlap with this new aggravating factor, the new factor would actually go beyond and capture a much broader range of offences and would directly address the serious issue of co-offending.

Group crimes, like organized crime offences, involve three or more individuals who plot together to commit a crime. The distinction between the two is that in organized crime situations, there always has to be a structured criminal organization, and the motive for committing the crime is to obtain a material benefit for the group or for a member of the group.

The new aggravating factor is much broader. It would capture random groups of people who form a common intent to commit any crime for any purpose, not just for material benefit. It would capture crimes such as group sexual assaults or hate crimes committed by a gang of racists, to name a few. It is easy to see that the two aggravating factors are really quite distinct.

It is important to keep in mind that a crime committed by a group has the potential to be more dangerous and more serious than a crime committed by a single person. For example, compare a traditional mugging, by a single offender, and a swarming, where a gang of individuals descends upon a victim to either rob or assault the victim. In many cases, the victim is far more likely to be overpowered and seriously injured than if confronted by just one person. Both types of crime are terrible, but when we multiply the number of people involved in an offence, the level of risk to the safety of the victim can quickly escalate.

Bill C-526, introduced by the member for Fort McMurray—Athabasca, would strengthen the Criminal Code and provide clarity in police investigations when dealing with crimes involving three or more persons. “Three or more persons” has already been set as having precedence in the Criminal Code under section 63(1), which anyone can find.

In closing, I encourage all members to support this bill and vote in favour of it moving forward to committee.

[Jonathan Genest-Jourdain, NDP, Manicouagan, QC]

Mr. Speaker, my contribution to the debate on the assessment of the merits of Bill C-526, which has to do with sentencing based on a scheme proper to criminal proceedings, will focus on the principles that should guide the study in committee. However, I would also like to focus on the questionable practice of codifying sentencing criteria.

An assessment of merit can definitely be used in a work context and in labour relations. When we have to assess an employee, often we weigh the major advantages, the strengths and the weaknesses of that person. In my view, this type of reasoning and exercise can also be used to evaluate the bills we are asked to study. In this case, I want to emphasize the fact that this is a private member's bill. Ideals must prevail. In this case, the bill deals first and foremost with the principle of sentencing and sentencing submissions. At the risk of repeating myself, I would say that criminal law is based on practice and custom. Criminal law is rooted in common law. It differs widely from one judicial district to the next.

For example, in the judicial district around Fort McMurray, the law may be somewhat harsher given the degradation and deterioration of the social fabric. During the summer, a social worker told me that Fort McMurray has many problems related to the resurgence and reappearance of syphilis in the region. That indicates that there is criminal activity and that, in some parts of Canada, the courts have to rely on stricter sentencing principles. That explains somewhat why judicial districts are different and unique.

Until just recently—and I would like to think that it is still the case—judges and crown prosecutors were afforded considerable latitude in determining the appropriate sentence for any given offence. When I said that criminal law is based on custom, I meant that, in such a case, during submissions on sentencing, the crown prosecutors make their case based on the case law and doctrine. However, the defence lawyers also do the same. In the end, the judge is free to make the most appropriate decision. In this case, with this bill, the government is once again trying to interfere in the administration of justice. It is clear that the government is interfering in this area, but it has also interfered in other matters over the past few years. During their time in office, the Conservatives have been using backdoor schemes to try to influence or interfere in matters that, until just recently, were enshrined in law and whose fairness and transparency were above reproach.

I would like to stress that it is not necessary to add to the list of aggravating factors for various offences set out in the Criminal Code. The Criminal Code already contains a fairly substantial list of aggravating factors. During submissions on sentencing, judges and crown prosecutors point out what elements of the case should be considered aggravating factors. It is then up to the judge to make a decision in that regard.

Based on that observation, it is essential that we examine certain aspects of this bill more closely in order to assess the reach of a new category of serious aggravating factors. There is a scale. The next thing you know, we will be talking about supreme universal aggravating factors. At some point, we are going to run out of adjectives.

We are talking about serious aggravating factors, their possible interpretation by the judiciary and the specific nature of item 718.2(a)(i)(F), which provides a different definition of a criminal organization than the Criminal Code does. Bill C-526 refers to three offences, which I will quickly mention.

The first is an offence that is connected in any way to a group of three or more persons with a common purpose of facilitating or committing an offence. In my opinion, that is already covered by the Criminal Code. The second is an offence that is committed in association with a criminal organization, and the third is a terrorism offence. This is already an aggravating factor under section 718.2 of the existing Criminal Code.

I would like to mention in passing that the Conservative government's revisionist legislative initiatives have been a recurring theme throughout its time in office. I stress the word “revisionist” because it applies not only to criminal law or the practice of law but to many other areas as well, including terrorism.

I must say that it is a bit unrealistic, especially considering the reality in Canada. However, this notion seems to catch people's attention and they really focus on it. Ultimately, it is redundant, since the criteria are being added.

However, I think that this private member's bill—and other experts and lawyers agree—is primarily meant to please a voter base. We are approaching the holidays, and this government that claims to be tough on crime has some work to do, especially if you look at the latest statistics and polling data. This government tries to please its voter base and the big lobbies as much as possible.

The prison population is also part of the economy. Some people think that is appalling and controversial, but others believe that they account for a significant part of our country's economic development. This legislation clearly shows that.

I would now like to talk about sentencing submissions, since that is the crux of this issue. The criteria and aggravating circumstances come into play during sentencing submissions. Both attorneys are present for sentencing arguments. In serious cases, such as terrorism, conspiracies or organized crime, sentencing submissions are most often a separate step. When the offender is found guilty, there is another step that can last several days or several weeks, based on the severity of the case. For homicides, sentencing submissions can last several weeks. That is when jurists and lawyers—both the Crown and the defence—will make their arguments and will of course base them on legislation, but also doctrine and jurisprudence, including corresponding or similar decisions.

This is a familiar process that is rather amicable, if I can call it that. I like to think that criminal law is primarily something you learn on the job and that it reflects the particularities of a given judicial district. That is why there was so much latitude and why the judge had plenty of leeway in imposing a sentence informed by the circumstances.

The Conservatives are once again trying to impose their vision. Earlier, I heard the hon. member opposite—I remember now—minimizing the validity of plea bargaining. He said that, often, people are linked, that plea bargaining is the last resort and that people are forced to resort to it for lack of an appropriate sentence. Plea bargaining saves Canadians a substantial amount of money and greases the wheels of the justice system, speeding everything up or at least creating a more fluid legal process. That is why plea bargaining remains essential. In the end, the lawyers come to a consensus.

This is the umpteenth time the Conservatives have tried to control the administration of justice, which is utterly deplorable. They will pay the price eventually. The experts at the Canadian Bar Association also zeroed in on the compellability nature of the proposed additions. In their opinion:

...forcing judges to conclude that three people committing a crime together, as opposed to any other number, is an aggravating circumstance, does not advance the goal of protecting the public, which is the point of this bill.

On that note, I will allow the House to digest what I have just said. Good afternoon.

[The Acting Speaker, Barry Devolin]

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.