Justice Committee on Nov. 7th, 2006

[The Chair, Conservative, Art Hanger]

I call the meeting of the Standing Committee on Justice and Human Rights to order. On our agenda today is Bill C-10, an Act to amend the Criminal Code, that is minimum penalties for offences involving firearms.

Before us we have the minister, Honourable Vic Toews, and two Department of Justice personnel.

Minister Toews, I'll give the floor to you to introduce your departmental officials, and then we'll hear your presentation.

[Vic Toews, Conservative, Minister of Justice]

Thank you, Mr. Chair.

I'm pleased to be back here again. I promised Mr. Ménard yesterday that I would be back again, and I am.

I have the pleasure to introduce two of my officials, Julie Besner and Mr. Donald Piragoff. They will be assisting me on some of the technical issues.

Mr. Chair, members of the committee, I'm pleased that the committee is beginning its review of Bill C-10, which seeks to protect public safety by tackling the problem of guns and gangs. This bill is part of our government's commitment to take steps to protect Canadians and make our streets safer.

As I've travelled across Canada and discussed these and other criminal justice measures, I've been struck by the call for measures to address gun crime. Mayors, chiefs of police, and attorneys general have been clear that we must take steps to target the gun crime on our streets. Bill C-10 will provide significantly tougher mandatory minimum penalties for serious or repeat firearms offences in a manner that is both measured and specifically tailored to the problem it seeks to address. It will also create two new offences targeting specifically the theft of firearms for robberies and breaking and entering dwellings and other places.

Bill C-10 seeks to build upon the existing minimum penalty scheme for certain firearms offences. Currently, four-year minimum mandatory penalties apply for ten specific offences involving the use of firearms. For other indictable offences in which a firearm is used, a one-year consecutive minimum penalty applies on a first offence; three years apply on a second offence. A handful of other offences involving firearms, but not their actual use, such as firearms targeting and smuggling, currently attract minimum penalties of only one year.

Bill C-10 is a targeted measure that focuses on gang members who use firearms to commit their crimes and on individuals who would use restricted weapons to threaten Canadians. It is a direct response to the scourge of handgun crime that plagues our country, especially in our cities. It focuses on the limited number of individuals who commit these crimes and will make sure that they face significant penalties for their actions.

Bill C-10 seeks to expand the existing law by providing an escalating mandatory minimum penalty scheme. The applicable penalty will increase based on repeat offences, similar to the increased minimum penalty scheme for impaired driving offences. However, because the range of firearms offences is significantly broader than impaired driving offences, different escalating schemes are needed.

Bill C-10 proposes three different escalating schemes, which I will describe to you in detail in a moment. But first I'd like to elaborate more on the nature of the problem the government is tackling with this bill.

Over the last thirty years, the types of firearms used in crimes or uncovered in criminal investigations have shifted dramatically. Police, and specifically those involved in weapons enforcement, have told me that they are coming across more illegal handguns, especially in the context of gang violence and the drug trade. This is a dramatic change from the 1970s and 1980s during which the firearms involved in crimes, particularly in homicides, were mostly long guns.

What we are hearing from the police is supported by the available statistics from Statistics Canada, which have been forwarded to the clerk of the committee. The statistics show that in recent years handguns have become the weapon of choice in gun crimes and are used in approximately three-quarters of violent firearms offences.

Bill C-10 targets serious and repeat firearms offences. When you look at the offences that are targeted by these mandatory minimum penalty schemes, you will see that they are all serious firearms offences. Firearms offences that typically engage more serious criminal conduct are captured by these proposals. One could say that what we're doing in Bill C-10 is codifying specific aggravating factors that the courts must take into account in sentencing persons convicted of these serious firearms offences. We have proposed higher minimum penalties of five years on a first offence, seven years on a second offence, and ten years on a third offence.

There are eight serious offences involving the use of firearms. These offences are attempted murder, discharging a firearm with intent to injure a person or prevent arrest, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery, and extortion. The enhanced penalty scheme for these offences will only apply if one of the two possible aggravating factors is present.

The first aggravating factor is whether the offence is committed in connection with a criminal organization. This would include street gangs if they are composed of three or more persons intent on committing serious offences for material benefit and any class of firearm is used. So it's important to remember that any class of firearm used in the context of a gang activity and the criminal activity involved in that applies.

The second factor is whether a restricted or prohibited firearm is used. As you all know, these weapons are hand guns, automatic weapons, or long guns that have been in some way modified.

I would like to take a moment to clarify a few things about this last point, because I note that it seemed to generate a fair bit of confusion during second reading debate. Bill C-10 does not propose to provide higher mandatory minimum penalties only when restricted or prohibited firearms are involved. It is true that this is a specific aggravating factor that will trigger the higher mandatory minimum penalties for the eight serious use crimes targeted by this bill.

However, the other aggravating factor that's applicable to these offences, whether the offence was committed in connection with a criminal organization or gang, does not require that the firearm used in the offence be a restricted or prohibited firearm. It could be any firearm, including a non-restricted long gun where that long gun is used in furtherance of a criminal gang activity. A gang member who uses a firearm of any sort to accomplish their criminal ends will be subject to the mandatory minimum penalties contained in this bill.

I also want to make it clear that the serious so-called non-use offences, which I will describe in a moment, do not make a distinction based on the type of firearm, except in one case where it already exists as an essential element of the offence. We have included the specific aggravating factor of using a restricted or prohibited firearm in serious use offences because it is directly linked to the nature of the crimes we are targeting.

As I have previous explained, this bill is the result of the increasing popularity of hand guns with street gangs and drug traffickers. Bill C-10 defines a prior conviction as a conviction that has occurred in the last ten years, excluding time in custody. In other words, if an individual has been convicted of using a firearm in the commission of an offence within ten years of the conviction before the court, it will count as a prior offence. In calculating the ten years, the court will exclude any time spent in custody. If the offender has a prior conviction within the ten-year period, it will trigger the enhanced mandatory minimum penalty.

Therefore, for example, someone who is convicted of a robbery using a hand gun with two prior convictions for robberies with a firearm in the last ten years will face a mandatory ten-year minimum penalty. The prior conviction or convictions could involve another firearms use offence as well, such as attempted murder using a firearm.

Enhanced mandatory minimum penalties are also proposed in Bill C-10 for other serious offences involving firearms but in which the firearms are not actually used. The escalating minimum penalties in the case of serious non-use offences are based only on repeat firearms offences. The escalating scheme will be three years for a first offence and five years for a second or subsequent offence for the following serious non-use offences.

First is possession of a loaded, restricted, or prohibited firearm. That's something the police have specifically brought to my attention--the prevalence, especially in big cities like Toronto, and the presence of these loaded firearms in motor vehicles especially.

Then we have firearms trafficking, possession for the purpose of trafficking, making an automatic firearm, firearm smuggling, and a new offence of robbery to steal a firearm. As an example, someone involved in the business of supplying illegal handguns to people and convicted of a firearms trafficking offence would face a mandatory penalty of three years' imprisonment. If the accused had a prior record for illegally possessing a restricted firearm with ammunition, the person would face a five-year mandatory minimum penalty.

A three-step escalating minimum penalty scheme of one year on a first offence, three years on a second offence, and five years on a third or subsequent offence will apply for the following offences: possession of a firearm obtained by a crime, possession of a firearm contrary to court order, a new offence of breaking and entering to steal a firearm, and the offence of using a firearm or imitation firearm in the commission of other indictable offences. As an example, someone who is convicted of breaking and entering into cottages to steal firearms that can subsequently be diverted onto the street would face at least one year in prison, and if that person has a criminal record for firearms trafficking, let's say two counts in the last ten years, then that person faces a five-year mandatory minimum penalty.

These penalties directly target the supply of handguns and restricted weapons to the criminals on our streets. They are a proportionate and necessary response to the handgun problem we face and they target the business of illegally supplying firearms. For the non-use offences, it is important to note that prior convictions in the last ten years, excluding time spent in custody for both use offences and non-use offences, will trigger the higher mandatory minimum penalties applicable in repeat offences.

There are a few reasons why two different penalty schemes are proposed for the non-use offences. First of all, several of these offences can cover quite a broad range of potential conduct with varying degrees of severity. Second, in the case of the offence of possessing a firearm contrary to court order, it does not currently attract a mandatory minimum penalty, but Bill C-10 will make an amendment to do so. On the other hand, clause 85, which is the additional charge of having a firearm or imitation firearm in the commission of an indictable offence like robbery, currently has a one-year mandatory minimum penalty on a first offence and three years on a second offence. These mandatory minimum penalties are being maintained in light of the fact that the courts are already required to impose those mandatory penalties consecutively to the penalties imposed for the underlying offence. However, a five-year minimum is being introduced for a third or subsequent offence.

Bill C-10 also proposes to create two new offences, one for breaking and entering to steal a firearm and another for robbery to steal a firearm. These amendments, which are firearm-specific, are intended to reflect the more serious nature of these offences where the accused are seeking to obtain illegal firearms, whether for their own use or to feed the illicit gun trade. These proposals also provide tough escalating minimum penalties consistent with the overall penalty scheme for serious firearm offences proposed in this bill.

Before closing, I'd like to speak about constitutional considerations. As Bill C-10 addresses the issue of penalties of imprisonment, it raises considerations under the Canadian Charter of Rights and Freedoms. Section 12 of the charter provides that people have the right not to be subjected to cruel or unusual punishment. The courts in Canada have frequently been called upon to assess the constitutional validity of the mandatory minimum penalties and imprisonment currently set out in the Criminal Code, and in particular many of those that apply to firearms offences. In examining these provisions, the courts have recognized that Parliament is entitled to take appropriate measures to address the pressing problem of firearms-related crimes. In proposing the new range of penalties for certain firearms offences, we have taken under consideration the sentencing principles currently set out in the Criminal Code.

The code provides as a fundamental principle of the Canadian sentencing regime that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender. It also provides that the purpose of sentencing is to impose sanctions on offenders that are just and that contribute to respect for the law and the maintenance of a just, peaceful, and safe society.

Accordingly, the objectives in sentencing are to denounce unlawful conduct, deter the offender and others from committing offences, and separate offenders from society where necessary. Sentences must also assist in rehabilitating offenders, cause offenders to accept responsibility for their actions, and repair the harm they have caused to victims or the community.

The manner in which the highest mandatory minimum penalties will apply is intended to ensure they do not result in grossly disproportionate sentences. The highest level of ten years for using a firearm and five years for the non-use offences are reserved only for repeat firearm offenders. If an offender has a relevant and recent history of committing firearms offences, that is, within the past ten years, it's not unreasonable to ensure the specific sentencing goals of deterrence, denunciation, and separation of serious offenders from society are given priority by the sentencing court.

While the overall trend in firearms offences is generally downward, when it comes to guns and gangs, Canada has not yet made meaningful progress in tackling the challenge. With Bill C-10, we are aiming to make a positive dent in the recent trend of illegal firearms use and possession by street gangs. By specifically targeting serious firearms offences and repeat firearms offenders or organized criminals and recognizing the types of firearms they are using, Bill C-10 focuses on the problem it seeks to tackle.

This bill offers police and prosecutors the tools they have said they need to ensure that serious firearms offences are met with serious sanctions, especially when committed by street gangs.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you very much, Minister, for that presentation.

I will turn over the floor now to the opposition. Mr. Larry Bagnell, you have the floor.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you for coming back again today, Minister. You're a bear for punishment.

My first question, so you can prepare while I'm doing my preamble, will be on aboriginal people, and I would like you to answer that particular question.

I'll start out by saying that although we're not against the principle of mandatory offences--we've put in a number related to gun crimes already--we're definitely against this bill for a number of reasons, some of which are from the esteemed previous Justice Minister Irwin Cotler. First of all, we would dramatically increase the incarceration of aboriginal people in this country. The wide evidence provided by experts in previous references already in the House show they don't work. Any media or anyone here who wants details of that should go to the debate of June 12, page 2225 of 2006. I'll make just one quote from there: “The story of the failure of mandatory penalties is at least three centuries old, said Michael Tonry in 'Crime & Justice: A Review of Research', University of Chicago Press 1992.”

My speech on that page goes on to explain that even the evidence brought forward by the minister proves exactly the opposite, that it just doesn't work. And the minister, fortunately--I'm very happy--said in the first ten words that he seeks to protect public safety. But if you look at my speech in the House, I have ten reasons why this would actually reduce public safety.

So my first question is related to aboriginal people. As I said, we all agree that aboriginal people are already disproportionately incarcerated in our system. This would increase it dramatically. It would aggravate the problem, and it may even be contrary to the principle of sentencing, paragraph 718.2(e) of the code, which sets aside special sentencing for aboriginal people now and to take a look at their situations and their conditions.

If you make these sentences mandatory, so that there's no option for the judge to look at those options, that's against the principles of the Criminal Code. I would like to ask the minister for his comments on this. We're removing the judge's ability to act on this principle in the Criminal Code.

What are he and his department doing to reduce this problem--I'm sure all parties agree--of the inordinate proportion of aboriginal people incarcerated in Canada?

[Vic Toews, Conservative, Provencher, MB]

Let's deal very briefly with the issue with respect to aboriginal people, because there are some significant errors that the member has made in his statement, first, with respect to the aboriginal people. I'd like to emphasize that neither the research nor the problem analysis revealed that the nature of the current gun crime problem is in any way aboriginal-specific.

In the development of these proposals, significant consideration was given to the importance of ensuring specific types of mandatory minimum penalties for specific types of activities, and I've gone into that quite at length. This is not targeted indiscriminately and certainly would not target aboriginals in a disproportionate way.

My office, Mr. Chair, has provided the clerk with a number of copies of studies with respect to the issue of mandatory minimum prison sentences, and unfortunately, those cannot be translated because of copyright issues. However, they all draw a direct positive relationship between the introduction of targeted mandatory minimum penalties and a reduction in crime rates.

Now, for example, in “Using Sentence Enhancements to Distinguish between Deterrence and Incapacitation”, by Levitt and Kessler, in The Journal of Law and Economics, volume 62—I believe the Roman numeral is.... At page 343, when discussing the California three strikes law, they state:

Crimes that were affected by the sentence enhancements in Proposition 8 fall by 4 percent relative to crimes that were not covered in the first year after the law change. The impact of the change increases to a decline of over 20% in eligible crimes 7 years after it is passed.

In a further study of these matters, Professor Levitt and Thomas Miles --

[Larry Bagnell, Liberal, Yukon, YT]

Sorry, Minister. I asked you to only comment on aboriginal people. That's not related to aboriginal people at all.

[Vic Toews, Conservative, Provencher, MB]

I'm not going to continue answering a question where the very basic premise of your question is in error, so I'll just complete this. I will deal with the aboriginal issue.

In further studies of these matters, Professor Levitt and Thomas Miles concluded in “The Empirical Study of Criminal Punishment” that there is a direct correlation between sentence enhancements, like mandatory penalties or truth in sentencing guidelines, and a decline in the crime rate. They attribute these findings to both the effects of deterrence and incapacitation.

I should also mention that the authors also discussed the need for appropriate levels of resourcing for police and crime-fighting strategies, both items that our government has committed to pursue. And I commend this chapter as an excellent discussion of these matters.

Another example is borne out in the study conducted by McDowell, Loftin, and--

[Larry Bagnell, Liberal, Yukon, YT]

Minister, I don't want you to comment on those studies. That isn't what I asked you for. You're not going to answer about aboriginal people--

[Vic Toews, Conservative, Provencher, MB]

Well, Mr. Chair, if the individual is bringing false information to the committee, then I'm entitled to respond.

[Larry Bagnell, Liberal, Yukon, YT]

I'll go on to my next question.

Minister, there's--

[Vic Toews, Conservative, Provencher, MB]

The study was conducted by McDowell, Loftin, and Wiersema, and it evaluated the effects of changes in gun laws. It considered the imposition of mandatory minimum penalties for gun crimes. There was a direct correlation, from 1969 to 1979, with the decline in the homicide rate in Detroit by ten per month.

There are a number of other studies of these sorts that are available that go to establishing the proposition that targeted mandatory minimum penalties lead to a direct reduction in the crimes that are targeted.

In respect of the issue of aboriginals, in the development of these proposals, significant consideration was given to the importance of ensuring that the enhanced mandatory minimum penalties would not target or impact aboriginal or other Canadians who use firearms for legitimate purposes, such as hunting. For example, we took the long gun issue but restricted it to the furtherance of a gun crime related to gangs, not to an aboriginal out hunting who might have made a mistake, or even to an aboriginal using a long gun to commit a murder. We're talking specifically about gun crimes.

Much effort was devoted to ensuring that the tougher measures focus specifically on the current pressing nature of the gun crime problem of guns and violence.

I'd like to emphasize, again, that neither the research nor the problem analysis revealed that the nature of the current gun crime problem is in any way aboriginal-specific. The available court data does not provide information on offender demographics, such as ethnic origin. Some of the information received from provincial partners and law enforcement agencies revealed, rather, that the nature of the current gang and gun violence problem that this bill addresses varies considerably in each area where it is being manifested. The response proposed in this bill is therefore general in terms of its application, but it is very specific in terms of its scope and the offences targeted.

It would be important to note that Bill C-10 does not propose to amend the minimum penalty of four years that currently exists for cases in which an ordinary hunting rifle or shotgun is used in an offence, nor does the bill target the offence of simple illegal possession of a firearm, unless the offender is subject to a firearms prohibition order that's been imposed by the court.

So the examples, and the red herring that the member brings forward, simply aren't justified. He's building an entire argument on something that this bill does not address and is trying to use those examples to excuse continued gun violence, especially with handguns, by gangs on the streets of our major urban cities.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Minister,

Mr. Bagnell, go ahead, if you have a response.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

We'll wait for the evidence from the experts, because the research vastly shows that it doesn't work. You must have scraped to get those two results, none of which are Canadian, and you don't have any Canadian evidence.

[Vic Toews, Conservative, Provencher, MB]

Do you want me to provide more evidence, Mr. Bagnell?

[Larry Bagnell, Liberal, Yukon, YT]

You also didn't answer my question about doing anything about aboriginal people. So I'll ask my next question.

[Vic Toews, Conservative, Provencher, MB]

No, hold on.

[Larry Bagnell, Liberal, Yukon, YT]

This is my time.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell, maybe you would like to respond to that comment of his.

[Larry Bagnell, Liberal, Yukon, YT]

How would you reduce the incarceration of aboriginal people?

[Vic Toews, Conservative, Provencher, MB]

I specifically addressed the issue, Mr. Chair, about the issue relating to aboriginal offenders and how this does not target the aboriginal offenders.

[Larry Bagnell, Liberal, Yukon, YT]

You didn't say how you'd reduce their--

[Vic Toews, Conservative, Provencher, MB]

Mr. Bagnell refers to some statistics related to the increase in aboriginal offenders in prison when his government was in office for over thirteen years, something, I might add, his government did nothing about, as those numbers of aboriginal offenders increased in the prisons.

So that is a separate issue that we can talk about, but it's a red herring, because this bill doesn't target aboriginals, nor will it target ordinary aboriginal hunters who may have used a firearm in an inappropriate way, even in the course of a very serious offence, if they're not involved in a gang activity.

[Larry Bagnell, Liberal, Yukon, YT]

Well the minister is wrong, because we did something. We actually brought in conditional sentences, which reduced that dramatically and improved the effectiveness of the system, fortunately, throughout his attempt in opposition to get rid of that success.

I'd like to ask the minister if he had any input.... Yesterday he made a cut, with no support from the department, no evidence from the department that the item, the Law Commission, should have been cut. Did he get any input from the department that he should impose these mandatory minimums and that they would actually be effective and would actually improve safety?

[Vic Toews, Conservative, Provencher, MB]

I can read the copies of the studies that I've just brought to your attention again.

[Larry Bagnell, Liberal, Yukon, YT]

No, I asked for recommendations from the department.