Justice Committee on Feb. 6th, 2007

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights to order on Tuesday, February 6, 2007, for a clause-by-clause consideration of Bill C-10 , an act to amend the Criminal Code on minimum penalties for offences involving firearms, and to make a consequential amendment to another act.

With us is the parliamentary secretary to the minister, Mr. Rob Moore; Mr. William Bartlett, senior counsel, criminal law policy section; and Ms. Julie Besner, counsel, criminal policy section.

Pursuant to standing order 75(1), the preamble is postponed in our clause-by-clause consideration. We will begin with clause 1.

Is there any discussion prior to entering into the clause-by-clause consideration?

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Could we ask the department to explain the rationale for this clause, Mr. Chairman?

[Julie Besner, Counsel, Criminal Policy Section, Department of Justice]

To which clause are you referring?

[Réal Ménard, Bloc, Hochelaga, QC]

Clause 2 of the bill which amends subsection 85(1), since we have decided to defer the adoption of the preamble. Is that right? Clause 1 was in the package we were given. The adoption of the preamble has been deferred. I believe we're moving on from there. Correct?

Mr. Chairman, I'd like the department to explain to us the rationale for each clause so that we have a clear idea of what we're voting on. Then, we'll proceed to comment.

[Julie Besner]

The preamble at the very beginning of the bill is not a clause as such. Clause 1 of the bill amends section 84 of the Criminal Code, not section 85, and has many purposes.

First of all, clause 1 which proposes to amend subsection 84(5) list those offences for which the penalties would be increased. Tougher penalties are already imposed in the case of certain offences. For example, section 85 already provides for two types of penalties: one year for the commission of a first offence, and three years for a repeat offence.

Bill C-10 proposes much tougher penalties for a number of offences. There would be three types of penalties: one year, two years for a second offence, and five years for a repeat offence. Two different penalties are proposed for other offences: three years for a first offence, and five years for a repeat offence.

The clause starts off by listing all of the offences included in Part III of the Criminal Code for which tougher penalties are imposed in the case of repeat offenders. We need to be clear on the definition of “repeat offender“. According to the proposed paragraphs 84(5)(a),(b) and(c), if the accused was convicted in the past of committing an offence involving either the use of a firearm, or where a firearm was present but not used, that offence is deemed to be an earlier offence. The provision goes on to state that the offence will not be taken into account if more than 10 years have elapsed, not taking into account any time in custody.

The proposed subsection 84(6) expressly states that if the accused has a number of outstanding charges that have not yet been resolved by the courts, as soon as a charge has been entered, it is deemed to be a previous conviction.

Perhaps I could briefly explain that provision in English.

Subsection (6) is an explicit interpretation that if an individual has a number of outstanding charges that have not yet been resolved before the courts, the conviction, as soon as it's entered, is taken into account, regardless of the sequence in the commission of the offences themselves. In the clause-by-clause book, it's described as “ousting the Coke rule”.

There is a common-law interpretation that generally applies when a person has multiple outstanding charges and faces a higher penalty due to repeat offending. The Supreme Court has indicated that it is possible to exclude that general common-law interpretation if it's done so explicitly in the statute. So that's what subsection (6) does at clause 1 and elsewhere in the bill when an escalating scheme is proposed.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Mr. Chair, I'm wondering, in light of the fact that we heard a lot of the testimony on this bill before the break, and in light of the fact that there are various views around the table—it is an important bill, and it addresses an issue that most of the parties represented here did touch on in the last election as something we wanted to move forward on—I know that opposition parties have raised some concerns with the bill, and in an effort to work together, so at the end of the day there is a product that's going to better protect all Canadians, I'm wondering if we might have some general discussion on the bill and on what opposition members may be agreeable to.

I know Mr. Comartin has put forward some amendments, which indicates to me that there may be some room to manoeuvre on the bill. If it's the position of the Liberal Party and the Bloc party to simply vote against every clause of the bill no matter what happens, we might as well know that up front; but if there's room to move and if there's room for compromise, I'm wondering if we might have some discussion on where opposition parties would like to see that compromise take place. We'll see if there's an openness to move this forward in that way.

[The Chair, Conservative, Art Hanger]

Is the committee in agreement for a general discussion, given the fact that we do have eleven amendments submitted by the NDP, specifically by Mr. Comartin?

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I would imagine you're going to tell us if , in your opinion, these amendments are in order. The Bloc Québécois has two problems with this bill. We feel that there is little room for any amendments, even though after glancing at it quickly, what Mr. Comartin is proposing appears interesting. I'll have to discuss this with Ms. Freeman and my colleague the whip. All committee members were provided with approximately thirty scientific studies in both official languages which appeared to call into question the effectiveness of minimum mandatory penalties.

As far as we're concerned, the crux of the bill is the increase in penalties, that is from three years to five years, depending on the offence committed, based on the belief that minimum mandatory penalties have a deterrent effect. However, based on the literature, and on the evidence, both the scientific kind and the testimony presented by most witnesses, we do not believe the committee should be moving in this direction. That's out first point.

The fundamental focus of the bill is minimum mandatory penalties and people either believe that these act as a deterrent, or they do not. Unlike past situations where a judge always had discretionary authority to impose minimum penalties, minimum mandatory penalties bring into play the science of law.

Mr. Chairman, is it too early to ask if you consider the amendments of our colleague Mr.Comartin to be in order?

[The Chair, Conservative, Art Hanger]

I do have a ruling to make on those particular amendments. I know Ms. Jennings is on the list for some comment. I'll take her views, and then we'll look at the amendments, if that's the wish of the committee.

Ms. Jennings.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much, Mr. Chairman.

I appreciate the offer extended by Parliamentary Secretary Moore to committee members. It would have been even more interesting had the government made this offer to the opposition parties at the first reading stage, so that committee members might truly have been able to amend the act.

Since the government only decided to send the bill to committee after debate on second reading and given House procedure, we will not be able to correct the errors contained in the bill. The Liberal Party's position hasn't changed. We are in favour of minimum penalties that directly and effectively target certain criminal offences, particularly offences involving the use of firearms.

However, it has already been demonstrated that minimum mandatory penalties, when used

as a blunt instrument, a sweeping blunt instrument, they can only lead to vast increases in prison populations and a series of unintended circumstances.

We heard testimony. I was not here to hear the testimony, but I read all of the testimony once I was appointed justice critic. I went through all of that, and the testimony was clear and unequivocal: the presence of mandatory minimum penalties often affects how a crown prosecutor lays charges and conducts plea bargains. That's one. Secondly, mandatory minimum penalties, if they're not done in a very targeted fashion, are not effective and actually become counter-effective.

So I find it unfortunate that the government, which wishes to appear to the public as a very comprehensive and listening government, did not make the choice to have this referred to committee at first reading, which would then have allowed the committee to actually do the work.

The government did it, Mr. Chair, with its Clean Air Act. It recognized that its Clean Air Act was fundamentally flawed and therefore acceded to the wishes of the NDP and the two other opposition parties, my own included, to have it sent to committee at first reading. This government could have chosen that; it did not. And in so choosing not to send it to committee at first reading, it literally handcuffed and hampered the ability of members of the committee—including government members, who recognized that there are fundamental flaws in the legislation—to effectively amend it, because the rules are such that we cannot fundamentally alter this bill now that it has been referred at second reading.

So while I appreciate the offer that Parliamentary Secretary Moore has made to the Liberal members, to the Bloc, and to the NDP, and obviously to those of his own caucus who feel there are fundamental flaws with this bill, it's unfortunate that the offer was not made at first reading, when it could have been taken up and would have been eagerly taken up, I'm sure, by all members of this committee.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Jennings.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Ms. Jennings.

From the government's perspective, three out of four of the parties around the table today were elected in the last election with a mandate in their platform to bring in measures that target gun crimes. Three of the four—the Liberal, NDP, and Conservative parties—all mentioned increased mandatory minimum sentences in their platforms. It is with a clear mandate from Canadians that this bill, Bill C-10, was brought in. It includes targeted mandatory minimum sentences for serious firearms crime, use offences, serious non-use offences, and non-use offences.

Based on that, that's why we're here today. We've heard extensively from witnesses. I don't think the issue of mandatory minimums targeted at gun crimes is at issue at all among at least three of the four parties, because if we look at what we've been saying all along, it's something we've all committed to do. This bill provides a framework to do that.

Many sentences are targeted, many different mandatory minimums are in place in the bill. What I'm asking is for Madam Jennings or whoever else around the table to say where they'd like to see a change. We're talking about mandatory minimums and we're talking about firearms offences, and that's all this bill touches on. When you have a commitment to increase mandatory minimums for firearms offences, surely there's something in this bill that has merit; there's something in this bill that mirrors what you would have done anyway, or that was your commitment to do.

You mentioned targeted mandatory minimums, targeted penalties for gun crimes, so I'm asking: where do you see that taking place in this bill, and where do you see it perhaps going beyond what you would like to do? Perhaps there's some way we as a committee can address that. That's the approach we want to take.

The difference I see with this bill is that almost everyone around this table came to this Parliament with a commitment to get tough, to increase mandatory minimums on gun crimes. That was the premise, that's the basis, that's the foundation of the bill. We introduced a bill that does just that, and now I'm asking if there's some way you would like to see it changed to accommodate any concerns you have, to bring those forward. What would you like to see in the bill? In your opinion, where does it go too far, and where does it perhaps not go far enough?

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I'd like to commend the parliamentary secretary for his attitude at this time. I think that's the way Parliament should work, discussing how we can work together to get something productive done.

I also think, as he said, it would be good to know. If the bill is going to either pass or fail and that's decided, we don't need to spend a lot of time on debates. So I think it's good having this discussion at the beginning and finalizing it. And what people have said in the past I don't think always determines the ultimate outcome—as you can see, for instance, on income trusts.

I think our job as a committee and the reason we have expert witnesses—and we had a long procedure here, as Ms. Jennings said, a very detailed procedure—What parliamentarians have to do in the final outcome is the right thing. As you know, we're dealing with dozens of bills just in the justice committee, let alone in Parliament. The way we find the answer to things is to have expert witnesses come and tell us things, and then, based on that, we make our decision as parliamentarians on what's best for Canadians.

I think any rational person who listened to the witnesses who came here, witness after witness after expert witness, heard them say these mandatory minimums, as Ms. Jennings said, first of all, don't work, and secondly, can be counterproductive and can produce more criminals under certain circumstances.

This bill does not make it any tougher on crime or on people with guns, because the maximums are not being increased. So whether or not this bill is passed, the judge will still have the same severity of punishment that he can give. It's not being increased. There is nothing more severe he can give. He can still give the maximum penalty when it's warranted to protect the citizens.

As one person said during the debates, they've never seen a bill that had so much scientific and knowledgeable opposition to it, so I would find it unconscionable as a member of Parliament to actually totally ignore that opposition and vote for the concept. I came into the committee with an open mind at the beginning, but doing my job as a parliamentarian and listening to the evidence, there's no possibility that I could support the concept.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Comartin.

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

Thank you, Mr. Chair.

I put forth the amendments because I believe they reflect the evidence we heard. Unlike Mr. Bagnell, I came in with my mind made up, and the evidence I heard simply confirmed that.

Indiscriminately used mandatory minimums have a minimal effect. I think we heard that repeatedly. To a significant degree, it was the position my party took during the election, and it's one we hold today.

There is an approach that does work in terms of dealing with crime, but it's a variety of approaches. Obviously, the greatest emphasis has to be on prevention. I'm critical of the government for not doing anywhere near enough, but then I'm critical of prior governments for not doing enough in that area and in some cases cutting back on programs that would have in fact helped on prevention.

Obviously, the role of enforcement and policing is also crucial. In terms of evidence, how many times did we hear the statement that the greatest way to stop crime is to have society as a whole and the individuals in society who are inclined to commit a crime know they're going to get caught? The policing and enforcement part is a crucial part. Again, I'm critical of both the current administration and the prior one for not doing enough to enhance the ability of our police and the sheer number of police on the street.

I think the evidence we heard from Chief Blair from Toronto was crucial in that regard. It showed what can be done if you take a creative approach to policing and apply extra resources, as he did in those two situations where he was after specific street gangs in his community and effectively shut them down .

There is also a third prong to the approach, and it's the role we have to play as legislators, as people who make the law for this country. It's what I call the condemnatory aspect. For example, as we did on impaired driving, we have to express that currently there is a serious problem in this country with this particular crime. We did it with impaired driving, and we did it fairly effectively. We applied the other two prongs as well. We put in extra effort from our police to stop impaired driving. We did a lot with groups like MADD and the police associations. They went out of their way to educate the public and did a great deal to prevent that particular crime by way of education and prevention.

We all recognize, and we heard it repeatedly from the evidence, that we have a specific problem with gun crimes in this country, particularly with handguns in our major cities. To some degree, and I would say to much of a degree, this bill expresses that condemnation as to that particular crime, and that we are serious about dealing with it.

I must say, Mr. Chair, if I had my druthers, I would like to see a timeline on a number of these provisions of the mandatory minimum increases. I'd expect that over the next five or ten years, as we approach these particular crimes with greater fervour, we wouldn't in fact need these sections in five or ten years, because we would have shut down the problem to a significant degree.

I'm optimistic that with the police, like Chief Blair and a number of the other police officers we've heard from, we will eventually shut this down, but we have to do our part. I think our part is to express that condemnation for gun crimes and that we're simply not going to put up with it.

In that regard, I brought forth these amendments. I believe and my party believes that we cannot completely do away with judicial discretion. Much as we did in Bill C-9, I'm proposing that, both in the first and the last amendments I put forward today.

I want to apologize to the committee. I really expected that I would have these for you by Monday morning, but one of my staff had the flu last week. I don't want to give him the entire credit, because I'm going to take some credit myself for these amendments, but he actually was the one who was shepherding them through, and unfortunately he was out of commission for a full three days. So I want to apologize that I didn't get them to you by yesterday, as I indicated I thought I would be able to.

What I've put forward in the first amendment and the last one is to reserve, in exceptional circumstances, judicial discretion. I think it's important that we express the condemnation, but we reserve for those exceptional cases where the mandatory minimums simply don't make sense and would result in an injustice. I've done that in those two.

The first one I just want to note as an example of why we need to reserve judicial discretion. In the amendments we're making to proposed new section 98.1, in clause 9, there is a particular problem, and it reflects, I suppose, the nature of the demographics of our country. We heard evidence that B-and-Es for the intent of stealing a weapon are becoming quite common in our major cities. But we also heard, in particular from Saskatchewan, that within the first nations, in particular in the north of the province, they have a number of these crimes—and it's mostly first nations—where they break in to steal the weapon to go hunting. That's all they're using the weapon for.

It's a common enough crime, perhaps arguably more common than the break and enters that we have in our major cities to steal weapons, but we've imposed on that a three-year and five-year mandatory minimum. Unless we reserve the judicial discretion, which is what my first amendment is intended to do, we will have an unintended consequence and one that would not be desirable—at least in my position. So we need to retain that discretion for our judges in exceptional circumstances.

I want to comment on Ms. Jennings' position. It's very well taken. It would have been much better if we had been able to approach this after first reading, rather than after second. Having said that, I recognize we are bound by the rules, but it is ultimately, Mr. Chair, in your hands to make a determination as to whether my first and last amendments are out of order as being beyond the scope of this legislation. Taking a broad view of that, you could rule these in.

I have to say, in addition, perhaps to the parliamentary secretary, that obviously not only at this committee but in the House, if we had all-party support for these amendments, they would go through. The Speaker would not rule them out—and I'm saying that just from practical experience with the current Speaker. We could put them in as amendments to this legislation to provide some cover from what I see, in some cases, as an extreme usage of the mandatory minimums, and allow our judges to make sure that justice is done in all cases in those circumstances where it's inappropriate to use a mandatory minimum.

So we can do that. We can do it here, and we can do it through our House leaders, and I guess our party leaders, by reaching an all-party agreement on this. That's the only solution I can offer you. I recognize, Mr. Chair, that even if you rule in favour of these being in order, the first one and the last one, we will still have a problem when it gets back to the House. But I would urge you to rule them in order at this time and let us deal with them as parties in the House.

The final point I will make in terms of the amendments is that the balance of my amendments, the other nine, are simply reducing the usage of the mandatory minimums in the ten-year category. I'm firmly of the opinion, and I know Mr. Thompson will love me to say this—and I'm not saying it just to irritate him, Mr. Chair, I want to be clear—that these will not survive a charter challenge. I think our courts, all the way up to the Supreme Court, have made it very clear that somewhere around seven or eight years is the absolute maximum they are prepared to accept that does not breach the Charter of Rights and Freedoms.

I think it behoves us as a committee, as legislators, that we don't pass laws that we know in advance are not going to survive either a charter or a constitutional challenge, whether it's in the area of criminal law or in a number of other areas. I think that would be irresponsible on our part.

The other nine amendments in effect eliminate the use of the ten-year mandatory minimums, so we'd only have two levels. We'd have the five-year sentence on the first offence, and seven years on any subsequent offences, whether two or more.

In that regard I would point out that in the material we got from Juristat, there were 14 offences in 2004-2005 where a person used a gun more than twice. We're not talking about a great number. In addition, Mr. Chair, knowing the judges I've practised in front of, I would say that in most cases, if you're on your third, fourth, or fifth offence with the use of a weapon, you're looking at ten years in any event. And oftentimes those crimes are coupled with other charges, and the person oftentimes ends up incarcerated in that range of ten years.

Those are my comments. Perhaps to summarize, I think what I've tried to do here is to make this work, to make it palatable to those of us who have a knee-jerk opposition to the use of mandatory minimums, but also to take into account the responsibility we have to express our revulsion at the use of guns in crimes in this country, to reflect the fact that the country is very concerned about this problem and that we're going to condemn the use of guns in this fashion.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

Mr. Parliamentary Secretary, it's puzzling to me why you're making this offer at this time. I take you at your word and in the best of faith with which the offer has been presented. Echoing what my colleagues have said, we can't walk away from mandatory minimums; I gather they've been on the books since 1996. We've studied them, and they've been effective. The idea was to ratchet them up in appropriate areas and to meet the concerns of citizens across the country that there seems to be a rash of gun-related crimes. On the other hand, you've gone too far in this bill, which was what virtually all of the witness testimony said. I never saw any wavering from anybody. I would not expect Mr. Thompson to waver; he stuck to his guns totally—pardon the pun. But the minister, the previous minister, never wavered, and you never wavered in any of the discussion made here. Now we're talking at the eleventh hour of an offer to save the bill, which might be in jeopardy.

I guess what I'm asking quite bluntly, Mr. Parliamentary Secretary, is if this is a real offer—again I take you as a gentleman and the parliamentarian you are—are you prepared to look at, for instance, Mr. Comartin's amendment, the last amendment to subsection 718.3 of the act, which restores some judicial discretion, which we've been very adamant about? We've been very adamant about the quality of our judges and the importance of judicial respect and discretion. Are you prepared to look at appeasing or addressing the issue with respect to the unique situation of over-represented incarcerees, our aboriginal population? Are you prepared to look at anomalies like the paucity of provisions for repeat crimes involving shotguns or long guns? Are you prepared to look at the disproportionality of ten-year sentences being subject to charter challenges and therefore the possibility of your new law, which makes great news but bad law, being struck down by the courts eventually?

How open are you to changing your long-held view that this was just a perfect law when first introduced?

[The Chair, Conservative, Art Hanger]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Murphy, for that question.

I think this bill would make good law. Certainly with the mandate we all have here in Parliament—except the Bloc, I will say, were not elected on the same mandate that the rest of us were—The Liberal platform said that a Liberal government will reintroduce legislation to crack down on violent crimes and gang violence and to double the mandatory minimum sentences for serious gun-related crimes. In fact our bill, by the measure of the Liberal platform, doesn't even go far enough. With that said, we've introduced a bill that increases mandatory minimum sentences for violent gun crimes. It also targets some other crimes committed by gangs, committed with a restricted or prohibited weapon.

To answer your question, yes, there's an openness to look at amendments to the bill. At the end of the day, I would rather have a bill that goes a step in the right direction—maybe not as far as I would like to see, but this government would like to have a bill in place that protects Canadians. We are open to feedback from opposition parties. I'm looking at the amendments that my colleague Mr. Comartin has put forward. We are open to hearing your suggestions too. We've put the bill forward; we've heard from witnesses. The basic premise I operated under was that based on the commitments that were made, the Liberals, NDP, and ourselves, the direction of the bill was a step in the direction of keeping our campaign and platform commitments. It might not be exactly how you would like to do it, but the framework is in place. What I'm asking, genuinely, is where would you like to see a change, and can we, as a committee, accommodate that? In doing our work with this bill, can we come up with something that will pass muster for a majority of the committee?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I don't want to be jumping ahead, but 718.3, putting back in some judicial discretion, which is proposed by Mr. Comartin, if you are now in favour of that, and it's ruled out of order, where does that leave you as the steward of this bill?

[Rob Moore, Conservative, Fundy Royal, NB]

We're going to look at each one of the amendments. I'm not saying that we agree with all of them. We've got the basic mechanism, and I'm asking, where would the Liberals like to see some changes but still, at the end of the day, have something that fulfills all our platform commitments to Canadians to target serious gun crime? Maybe your definition of serious gun crime is slightly different from mine, so we're open to hearing suggestions from opposition parties.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

We're open to you being open.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Ménard.