Justice Committee on Oct. 23rd, 2006

[The Chair, Conservative, Art Hanger]

Okay, the clerk acknowledges that.

[Sue Barnes, Liberal, London West, ON]

Thank you very much, Mr. Chair.

Thank you.

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

Mr. Chair, on that subject--

[The Chair, Conservative, Art Hanger]

Yes, Mr. Lee.

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

--I heard your decision, and for the record I wanted to differ with it. There hasn't been an opportunity to debate that here at the committee. I'm not going to prolong the debate; I wanted to make the point that the specific scope of the bill involved the restriction or adaptation or modification of the circumstances in which conditional sentences could be used. The amendment you've just ruled on clearly operates within that scope; it deals with the times or circumstances in which conditional sentencing can be restricted. And in my view, I did not see the amendment as beyond the scope of the bill. I wanted to put that on the record, and my remarks end there.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee. I think any issue opens the door for discretion, and the bill is clearly defined--I think that is the issue here--and it does deviate from that particular point.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I know it's your prerogative to rule amendments submitted by committee members either in order or out of order. I also know you make those rulings with the help of the good advice of our clerk. I just want to understand the meaning of the ruling you have made. You say the amendment is out of order and you state two reasons, the first one being the scope of the bill. We know the bill is quite limited; it contains just one clause. Then you mentioned judicial discretion. I'd like you to explain to me what you meant by that.

The clause of the bill leaves some discretion to the judge. That's always the case in criminal law. I'd like to give you a chance to give us a bit more of an explanation of the ruling you have made. I'm not challenging your prerogative to make a ruling. There are others that you occasionally abuse, but this one was your prerogative.

The future of the bill is uncertain, but I know you will keep your cool come what may.

[The Chair, Conservative, Art Hanger]

First of all, we can get into a lot of depth in this particular amendment, but it has been withdrawn, number one, I should point out.

[Sue Barnes, Liberal, London West, ON]

It's ruled out of order; it's not withdrawn.

[The Chair, Conservative, Art Hanger]

It's ruled out of order. So how far do we carry the discussion?

The point that I think you bring up is stated in proposed subsection (2) of amendment L-1, where it leaves the court to be satisfied in these particular instances, in the interests of justice, and to look at exceptional circumstances. The other one is paragraph 2(d) on the next page: “the expression of society's denunciation should take precedence over any other sentencing objectives”. So who is to decide? The court.

[Réal Ménard, Bloc, Hochelaga, QC]

I don't know, Mr. Chairman, whether you have had the pleasure of reading the Proulx decision, which was handed down in 2000. It's 100 pages long. It refers to the following principles: deterrence, denunciation and rehabilitation, a great novelty that must have pleased you, Mr. Chairman. We all understand that the judge has some discretion. However, I don't see how this amendment gives the judge more discretion than the very bill tabled by the government. In any event, I shall abide by your ruling.

[The Chair, Conservative, Art Hanger]

We can certainly get into this discussion, but we're not going to unless you wish to appeal the ruling. The discussion ends here.

Mr. Comartin.

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

I want on the record that I adopt and support Mr. Lee's position. I'm putting that on the record now because I expect this government is going to bring similar bills drafted this way. The only reason I'm not challenging the chair at this point in this ruling is that we have an alternative that I find acceptable. I don't want to be caught somewhere down the road on some other legislation, being bound by this ruling.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

We'll go on to amendment L-2.

Yes, Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Mr. Chair, I also consulted the legislative clerk, and she advises me that this was one of two ways that this could have been legally amended. The only other way, for the record, was to increase the number of years from 10 to 14, or life, which was not a useful exercise for discussing this bill.

So I would like your ruling. First of all, I'll say that I believe that it is.... My advice is on the record, and before I start talking, I'd like to hear whether you're ruling it in order.

[The Chair, Conservative, Art Hanger]

We consider this amendment admissible.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Mr. Chair and colleagues around the table, we've had a number of witnesses come before us, all bringing their opinion to bear on this. Why I'm offering this amendment...as you can see, it takes from the prior amendment, which was ruled out of order, those areas that the previous government had considered when they were trying to limit this area of conditional sentencing. What you see before us is: “...serious personal injury offences as defined in section 752, a terrorism offence or a criminal organizational offence prosecuted by way of indictment, for which the maximum term of”...and then we go on with the ten years.

So the amendment, as you see, interjects categories of offences that we are seeking to have removed at this time from the areas where it would be available for a conditional sentence.

We believe that in these areas you have the whole section of criminal organization of the Criminal Code, where it could encapsulate very many provisions of the Criminal Code if there are more under the definition of that part--so many of the areas, if they were involved in criminal organizations--for instance, drug trafficking--would be captured under this part. That would leave free those areas where you have an individual operating alone, who, as we heard with the evidence of the Gladu court and some of the other testimony here, the drug treatment courts could successfully put into a treatment program if this section was widened, as the bill originally imagined.

I look at the terrorism offence sections, and again, a lot of the areas, if they were caught, would be...the list would be expanded if terrorism was involved. I think Canadian society is very concerned with terrorism activity, and we believe that anybody involved in that type of activity, who is proved successfully by the Crown to be so engaged, should have the conditional sentence removed.

I would remark that the “serious personal injury” offence, again, is flexible enough in the situation to add those areas that would cause the greatest concern to the public. My information is that we consulted on this, these were the areas that were most concerned, and that we were not really intending to be originally...before the Proulx decision. These are the things where we think the appropriate constraints should come in.

This has the effect of removing some of the property offences that were widely in this legislation. I remind the committee members that when the minister came before us he told us to talk amongst ourselves and to our colleagues, which has been done. I gave the parliamentary secretary notice of where we were heading. I've certainly said it here in the committee many times.

We received some statistics today, a little late I might add, but that's what happens when you're working under these types of deadlines. The statistics today said that a lot of the area, I think it was 29%, was in the serious violent.... I can't place those statistics at this moment, Mr. Chair.

I don't intend to talk a long time, because my government chose these areas with care in the last Parliament. I could not add the area of denunciation that we had also added, because it was introducing another concept to the bill that wasn't structured in the one-paragraph bill, nor was I capable of doing a listing. So this is the option I was forced to follow, because this bill did not come to us before second reading. It complies, and I think at this point in time this is a partial restraint on conditional sentencing. Our government's belief is that conditional sentencing....

The testimony we heard from many witnesses is that we should not even be going this far. The most compelling answer was when I posed the direct question to Julian Roberts, who had done a lot of the work for the justice department, who stated that this is the area we should be going in.

I will leave my case there. Some of my colleagues may wish to comment. I don't submit that this is all I could say in this area. I think it's one paragraph, I have limited ways to amend, and this is the way that most fit with what we had considered doing in the previous government.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

We will have discussion now. Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, I am pleased to announce to the committee, without wanting to surprise anyone, that the Bloc Québécois is going to support this amendment. It is an amendment that exhibits genius in its own way, given that the rules were not easy and that having just one clause made the scope quite limited.

It think when our work is done, after this amendment, there will be a few lessons to be learned. It should be pointed out, first of all, that conditional sentencing is not used all that often in our justice system. We know for a fact that only 5, 6 or 7% of convictions give rise to a conditional sentence. Despite what some people have suggested, in all of our deliberations and discussions with witnesses, there has been no basis for this committee to find that conditional sentencing is overused.

As a matter of fact, the Canadian Criminal Justice Association pointed out to us that only 38% of conditional sentences involved property offences. Furthermore, if you combine offences relating to the administration of justice and offences relating to the Highway Safety Code, the total is over 50%.

There are very effective limits on conditional sentencing. So we can't share the government's concern. What worries the Bloc Québécois more and causes us to support this amendment is the issue of the 10-year marker. The list the government has presented is completely lacking in differentiation. This had better not happen again in future bills. The government is going to have to work with a bit more intellectual dexterity, flexibility and skill. The witnesses certainly told us the 10-year maker was obviously too general.

One of the witnesses gave us the example of breaking and entering. There is a difference between an individual who commits a burglary in the middle of the night on Darling Street, in the riding of Hochelaga-Maisonneuve, and a former spouse attempting to recover assets that are part of the family property. Under the Criminal Code, it is the same offence, but the situations are completely different.

Obviously, that does not mean legislators have to refrain from sending messages. I think you and I will agree on that. There are things I like about Ms. Barnes' amendment. A person who spends a number of years working with Ms. Barnes in committee may discover that she has quite a subtle personality. Of course, she may occasionally come on a bit strong, but who can claim to have gone through public life without ever taking a bit of a stand? I suppose the same thing goes for deputy ministers. When you have responsibilities, there are times when you have to be assertive.

Unless you want to be on the overly long list of spineless people—and here, I am not going to name any names on this committee— there are some positive aspects to be found. A witness whom you probably hold in high regard, a member of the Montreal Police Force, told us it was acceptable, in some cases, to provide some guidelines. Cases of terrorism were mentioned. In that connection, let's recall Bill C-36. I am not suggesting here that we are in favour of security certificates. Whatever the case, that is another debate, and we look forward to reading the Supreme Court's report on that.

My Bloc Québécois colleague, the highly talented Serge Ménard, who is clearly not the only talented person of that name in our caucus, has taken a position. We agree that in some circumstances, judges have to be given guidelines. We still have confidence in judges. That may be a factor that sets the people on this side of the table far apart from those on the other.

Terrorist and organized crime offences are a very good example of situations where new law has to be created. I remember meeting with senior officials from the Department of Justice—and it was not you, madam, but some of your colleagues—who were confident the major organized crime networks could be dismantled simply by using the conspiracy provisions.

As the member for the riding where the car bomb went off, costing the life of young Daniel Desrochers, aged 11, I certainly knew that new law had to be created, a new offence.

In cases of terrorism, organized crime and personal injury offences, as described in section 752, the use of conditional sentencing is not desirable. In closing, I would like to say that one thing really disappointed me on this committee. Throughout our deliberations, people have implied—and I may feel obliged to put a question to the parliamentary secretary and to Ms. Kane—that conditional sentencing, as defined by the Supreme Court of Canada in Proulx, was not a sentence of imprisonment. Mr. Chairman, a conditional sentence is a prison sentence. This is so true that if you go to the trouble of re-reading Proulx, the 94-page judgment concurred in by the majority and delivered by Justice Lamer, you will see that a judge has to give reasons for his or her judgment.

It even says—and you will correct me if I am mistaken, Ms. Kane—that reasons must be given for a decision to impose a conditional sentence or not to impose one. In addition, the Supreme Court says there are three conditions: ideally, there should be a curfew and electronic surveillance, and there are, of course, all of the minimum conditions, including keeping the peace and being of good behaviour.

Mr. Chairman, with your permission, I am going to put a question to our parliamentary secretary and to Ms. Kane. Are you a deputy minister? If not, I hope you will be.

In light of the Proulx decision, do you think that we, as parliamentarians, can properly consider conditional sentences, as set out in section 742 of the Criminal Code, to be tantamount to sentences of imprisonment?

[Rob Moore, Conservative, Fundy Royal, NB]

I didn't know that this was a question. It's different being on this side of the table for question and answer period.

[Réal Ménard, Bloc, Hochelaga, QC]

If you want the right side, come here.

[Rob Moore, Conservative, Fundy Royal, NB]

I do want to comment a bit on this amendment, and I thank Mrs. Barnes for bringing it forward. The government, though, will not be supporting the amendment, and I'll tell you why.

The breakdown seems to be on the issue of.... You've listed terrorist offence, criminal organization offence, and serious personal injury offence. There's a reason why this bill was drafted the way it was. There's a reason why the maximum was set. Where we used the maximum of 10 years or greater, it is because we wanted to have a law that generally applied in that area, without going through an itemized list.

I'll give you a good example, something that wouldn't be captured by your amendment: Internet luring. A private member's bill has been introduced in the House. This is something that's very serious. It seeks to increase the maximum punishable to 10 years. This bill wouldn't capture that. And we, on this side, do not feel that for the offences we've listed here, which the Government of Canada has already said they recognize as punishable by a maximum of 10 years, and in some cases a maximum of 14 years.... We've already identified them as being serious offences. We feel that when we proceed by way of indictment, a conditional sentence should not be available. And your amendment does not capture that. It means that someone who's been convicted of Internet luring--

[Sue Barnes, Liberal, London West, ON]

I have a point of order.

[Réal Ménard, Bloc, Hochelaga, QC]

My question, Mr. Chairman...

[The Chair, Conservative, Art Hanger]

Your point of order, Ms. Barnes. I recognize you.