Evidence of meeting #30 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was serious.
A recording is available from Parliament.
4:35 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Well, wait. Excuse me, Ms. Besner, but I want to put my question very precisely; it will be even easier.
Take the case of a 17-year-old.
4:35 p.m.
Conservative
Vic Toews Conservative Provencher, MB
But she did give a good explanation to me, and I'm sure you'd like to hear it.
You wouldn't? Okay.
4:35 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
No, Minister. What I mean is that I will ask my question in full and that will allow Ms. Besner to...
Take the example of someone who has just turned 18, and who at the age of 16 was sentenced for two break and enters. Suppose that during those break and enters in people’s homes, he stole handguns, revolvers. He comes before the judge when he has just turned 19. As I see it, his criminal record as a young offender would apply.
What will be the minimum compulsory sentence the court will have to impose on him if Bill C-10 is passed? Have I understood correctly that it would be at least five years?
November 7th, 2006 / 4:35 p.m.
Julie Besner Counsel, Criminal Policy Section, Department of Justice
There is no change in policy regarding the penalty which applies under the law to young teenagers. For those cases where the Crown may ask for an adult penalty, the same policy would apply. In this respect, the Bill does not change anything.
If the individual has a criminal record as a result of offences or convictions mentioned in the Bill, the Crown will look at that criminal record and make a decision as to whether to seek a harsher penalty because the person is re-offending, and if the Crown does decide that this is appropriate under the circumstances, then he or she will give notice accordingly.
4:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
So it is possible that a 19-year-old being sentenced for the first time as an adult could get five years in penitentiary?
4:40 p.m.
Conservative
Vic Toews Conservative Provencher, MB
I'm getting some mixed advice here. That's why I was....
My own view is that you're not convicted of an offence for those purposes as a juvenile. It's only as an adult. But as an adult, if he committed one of the serious use offences--attempted murder, let's say--there would be a mandatory five-year minimum.
4:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
No, wait. My question is on a more subtle point, Minister. I have read the proposed section 98. As I told you, I have done my homework.
Under the new section 98 which you want Parliament to pass, a 9-year-old—and this is known, because in small communities, the criminal records of those familiar to the police are known; I know, I have met some—could be sentenced to penitentiary for a minimum of five years for break and enters during which he stole some firearms. That is what the new section 98 provides.
4:40 p.m.
Conservative
4:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Alright. That leads me to my next question.
Minister, the Supreme Court has made two important decisions. There is the Smith decision of 1987, which everyone here is familiar with, I am sure. In that decision, the Court stated that minimum prison sentences of seven years for importing or exporting narcotics were cruel and unusual. That is a Supreme Court decision from 1987; I do not think there is any question about that.
In 2000, there was the Morissey decision, also from the Supreme Court…
4:40 p.m.
Conservative
Vic Toews Conservative Provencher, MB
I'm sorry, I'm just trying to follow, because on the importation, the mandatory minimum that was struck down occurred much earlier than 1997, where the--
4:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
The Smith decision was in 1987. I cannot be mistaken; that is not possible.
4:40 p.m.
Conservative
4:40 p.m.
Conservative
4:40 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
Here is what I want to know. Have you made any analyses, any studies to determine whether your Bill C-10 could pass the Supreme Court’s test, in light of the Smith decision of 1987? Do you think it could?
4:40 p.m.
Conservative
Vic Toews Conservative Provencher, MB
Exactly. And I think this was the concern I had with the NDP proposal for the mandatory minimum of four years, without concern about what type of firearm offence it was, and the Liberal mandatory minimum of eight years. In my opinion, that ran into some serious proportionality problems. So what we have done is targeted very specifically eight serious use offences.
As you will recall in the Smith case, the potential was that a person could bring one joint of marijuana across the border and therefore be subjected to seven years. It wasn't that importing a pound of marijuana wouldn't attract seven years in an appropriate fashion. It was the potential for the one joint to give seven years, and there was no proportionality in that, much like the Liberal approach of just saying eight years. So what we've done is to say on a first offence, five years, because that is consistent with I think the Supreme Court of Canada decisions regarding mandatory minimum prison sentences for serious use offences--again, very specific crimes--and some of the other mandatory minimums, a one-year mandatory minimum for the break and enter and the stealing of the firearm. With respect to the non-use in trafficking or smuggling, it would be three years. Again, it's proportionate to the type of crime we're dealing with.
So the legal analysis in this case I think is quite solid, whereas the Liberal approach of simply saying whoever you are, you're getting eight years for a firearms offence, would have been struck down quite quickly on the basis of the Smith case. But in this kind of situation, the department has done the analysis of the existing case law to ensure that the response is proportionate to the initial crime and then built on that.
4:45 p.m.
Conservative
Patrick Brown Conservative Barrie, ON
Thank you, Mr. Hanger.
Thank you, Mr. Minister, for another appearance before our committee. I applauded you on Monday for your numerous appearances here, and you've shown again today that you have truly taken the time to hear the concerns of the justice committee.
I share your concern, Mr. Minister, that the status quo is inadequate, and that's certainly what I've heard in my riding; that's certainly what I've heard in central Ontario. I would suggest there is a thirst for more deterrence, and I enthusiastically support this legislation because I think that's precisely what it does.
I've heard some rationalization of the status quo. I think if you talk to the average Canadian, that's not what you're going to hear. I know that typically we view gun crime to be the domain of large cities, and that's not the case. I come from a municipality of 130,000, and in Letitia Heights, a quiet neighbourhood, recently we had a shooting. Canadians deserve to feel safe within the confines of their neighbourhoods, and this legislation I think heads in that direction.
So my question, Minister, would be twofold. One, does your research suggest that we're going to see a sense of deterrence created with this legislation, and what are the positive effects we're going to see for Canadian public safety with this renewed sense of deterrence for gun criminals? Secondly, have you had any consultation with Canadian police officers or police associations, and what feedback have they given you? I noticed one of my colleagues praised the Toronto police, so in the effort of praising them we should also listen to them. What are those police officers telling you?
4:45 p.m.
Conservative
Vic Toews Conservative Provencher, MB
Certainly in my discussions not only with the Toronto Police Association but with the Toronto police chief, they've been very supportive, not only of Bill C-10, but of Bill C-9, which was unfortunately gutted by the opposition.
On the issue with respect to the increase in penalties, yes, we believe that is important along with policing. You can't have one without the other. It doesn't help to simply have tough laws on the books without policing. So the policing that we have seen the Toronto police do this summer has been exceptional--very hard work, targeted. I think you should have the chief here to talk about the use of resources to actually apprehend these individuals. The stories they're telling me about the amount of manpower they need--or “person-power”, whatever the politically correct term is--has been incredible.
They're investing all this in police presence, but if they're not getting appropriate sentences, it's a revolving door over and over again. They point out the fact of the numerous killings or shootings in Toronto that were committed by people out on bail. The numbers are simply staggering. So, again, it shows you that having those people incapacitated, even if it's not going to deter them when they're out, is going to save lives in a very real sense.
So what we've tried to do in listening to the police.... For example, the issue of the loaded or restricted firearm inside a motor vehicle, just possession, is a growing problem. Every police officer walking up to a car now has to assume that there is a loaded firearm in that car. That's an intolerable state of affairs, something that would have never occurred....
I remember years ago prosecuting back in 1977. A police officer on highway number 1 at 2 o'clock in the morning stops a car, the door opens, and the handgun falls out. That was such an exceptional circumstance back then. Now they assume it occurs.
The handguns are being kept under the front driver's seat. So there will be three or four gang members in the car, and then it's difficult to prove the possession--so very difficult to prove. We believe that if you're making a practice of carrying this handgun in your car, loaded, there should be significant consequences.
Now, if the NDP say, look, we should move that up to four years, in that kind of circumstance, I would say, yes, let's move it up to four years. We haven't done that; we've said three years.
Again, I disagree with what the Liberals did. For example, a firearm, a long gun...an aboriginal using it and getting eight years doesn't make sense to me either. There has to be a proportionate response. So I would reject the Liberal response as being one that would unnecessarily increase the inmates in prison of a certain type, who can, I believe, be deterred in other ways other than using the Liberal approach.
4:50 p.m.
Liberal
Wayne Easter Liberal Malpeque, PE
Thank you, Mr. Chair.
Welcome, Minister.
I'll not be quite as accommodating as your colleagues across the way because I believe you have a responsibility to be here at this committee when you present legislation.
That's right, but you'd think the minister was coming just because he wanted to be here listening to the crowd on the other side.
4:50 p.m.
Liberal
Wayne Easter Liberal Malpeque, PE
That's good.
You do have a responsibility to be here, but more than that, I think you have a responsibility to provide concrete evidence so that the committee can make evidence-based decisions with background data and not supposition. I'll give you an example that you just used. I don't think you presented the evidence to this committee. You just said a moment ago that the police are telling you they're not getting the proper sentences. I expect the police to say that.
