Justice Committee on June 10th, 2009

[The Chair, Conservative, Ed Fast]

I call the meeting to order. This is meeting number 30 of the Standing Committee on Justice and Human Rights. Today is Wednesday, June 10, 2009.

You have before you the agenda for today, and in the first hour, as you know, we'll be doing clause-by-clause on Bill C-26, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime). Immediately after clause-by-clause, we'll move in camera to provide final instructions to our analysts on the impaired driving study.

So let's move to clause-by-clause on Bill C-26.

Again, we have with us Paula Clarke and William Bartlett from the criminal law policy section of the Department of Justice. Welcome here. You're here as a resource to us, I understand.

Moving to clause-by-clause, hopefully you have before you a list of the amendments. There should be four of them, numbered pages 1, 2, 3, and 4, the first one being a Bloc amendment, the second one being a government amendment, the third one being another Bloc amendment, and the fourth one being a Liberal amendment.

If that's all in order, we'll move on to clause 1. There are no amendments on that.

(Clause 1 agreed to)

(On clause 2—Motor Vehicle Theft)

[The Chair, Conservative, Ed Fast]

There are three proposed amendments to clause 2. The first one is BQ-1, so Monsieur Ménard, would you introduce that one, please.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, it will come as no surprise to you to learn that we are suggesting that the committee withdraw the provision in the bill dealing with the minimum sentence of 18 months after a third or subsequent offence that the government will define.

You are well aware of the reasons why we do not support mandatory minimum sentences; I will not go over them again. My second amendment deals with the next paragraph. I have every hope that we will obtain the government's support.

[The Chair, Conservative, Ed Fast]

All right, we have the first Bloc amendment, which is related to the second Bloc amendment. Is there any further discussion on this amendment?

By the way, I have consulted with our legislative clerk. The amendment does remove a mandatory minimum sentence in the bill, but because it's a smaller part of the bill, I'm not going to rule that particular amendment to be out of order. So we'll have a debate on that.

Is there anyone else who wishes to speak on that? Hearing no one....

Sorry, Mr. Murphy.

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

I'm sorry, I didn't put my hand up, but I pressed the button. I'll just do both at the same time from now on.

Are you asking for debate on your decision not to or just on the clause?

[The Chair, Conservative, Ed Fast]

I didn't rule the amendment to be out of order, so there's no ruling for us to debate.

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

It's kind of curious that you would give us sort of a half ruling. Since you've opened it up for debate, I wonder if the honourable member, in speaking to his amendment, would care to comment as to in what degree the removal of a mandatory minimum from a sentence would be going too far in striking the bill as not being relevant. I'm just curious about what his thoughts on that are.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chair, we are going to support this bill. It is not that it goes too far or not far enough. We just do not believe in the principle of a mandatory minimum sentence at all. It has nothing to do with the 18 months, even for a third offence and even though the prosecutor has the choice of proceeding by summary conviction or by indictment.

We are consistent. We have said this often: no study shows that mandatory minimum sentences are effective. That is why we would like to remove this provision from the bill, but it does not affect our support of the bill.

[The Chair, Conservative, Ed Fast]

I also note that there is a line conflict with government amendment 1, so if the Bloc amendment is adopted, the government amendment cannot be proceeded with.

Is there any further discussion on the Bloc amendment 1?

Monsieur Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I thought we were voting. Are we voting?

[The Chair, Conservative, Ed Fast]

I will then call the vote on Bloc amendment number 1.

(Amendment negatived)

We then have government amendment number 1. It is the only government amendment.

Mr. Moore, you are free to proceed with it. Do you want to introduce it?

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair. I move government amendment 1.

I will explain briefly what it does. Under the bill, the option for the crown to proceed by way of indictment on the third offence and to avail itself of the mandatory minimum penalty is only available if the first two proceedings have been by way of indictment. A first offence would have to proceed by indictment, with a conviction; a second offence would again be by way of indictment and with a conviction; on the third offence, the crown would have to proceed by way of indictment, and then that would trigger the mandatory minimum penalty.

This government amendment opens up the possibility that the crown could have proceeded either by indictment or by summary conviction on the first and second offences. If someone has twice been convicted by way of summary conviction and the crown then proceeds by way of indictment on a third offence, it would trigger the mandatory minimum penalty.

It opens up flexibility to the crown. Let's say that on the previous two offences, one had gone by way of indictment and the next by summary conviction. If the crown proceeds by way of indictment on the third offence, there is the mandatory minimum penalty. That is the only change this amendment makes.

[The Chair, Conservative, Ed Fast]

Thank you.

Go ahead, Mr. Murphy.

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

Could I ask Mr. Bartlett a question on this point?

[The Chair, Conservative, Ed Fast]

Yes, you may.

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

In terms of corporate memory, I don't remember there being a distinction as to the mode of proceeding in any other mandatory minimums that were brought in. Maybe I'm wrong, but it seems to me that the intention of the parliamentary secretary's discussion and the intention of the legislation would be to ensure that first is first, second is second, and third is third, regardless of whether the indictment is late or the summary conviction offence is used. Is that correct? What I understand from the parliamentary secretary is that because of the way this is written, it might be played with so that a second isn't second and a third isn't third, depending on which way the crown proceeds.

[William Bartlett, Senior Counsel, Criminal Law Policy Section, Department of Justice]

I'm sorry, do you mean the bill as it is now or as the amendment would have it?

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

I mean with the amendment. The amendment seeks to treat the third offence as a third offence regardless of the method of proceeding. Is that correct?

[William Bartlett]

Yes. The mandatory minimum penalty would apply on a third conviction regardless of whether the previous two were both indictable, one was indictable and one summary, or both were summary.

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

The first part of the question was whether any of our other mandatory minimum sentences that were passed in the last three and a half years--or, for that matter, among the early ones from 1995 on--make a distinction as to how you proceed as to the application of a--

[William Bartlett]

I think there are other mandatory minimum penalties that would have the same effect. This is a somewhat different way of approaching it in order to make the issue crystal clear in this case, but there are probably other mandatory minimum penalties that would apply regardless of how the previous offence was proceeded with. It is a somewhat different approach to talk about how the previous two were proceeded with, but it's to make it clear what the effect would be.

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

Okay, thanks.

[The Chair, Conservative, Ed Fast]

Could I also ask you a question, Mr. Bartlett? This is just a stylistic question.

In the last three lines in the last amendment, the wording is:

to be an earlier offence whether it was prosecuted by indictment or by way of summary conviction proceedings.

Should it not say “prosecuted by way of indictment or by way of summary conviction proceedings”?

I'll only ask that question once.

[William Bartlett]

Normally we would just say “by indictment or by way of”. We don't feel it's necessary to say “by way of indictment”; it's just “by indictment”.

[The Chair, Conservative, Ed Fast]

All right.

Is there any further discussion on government amendment number 1?

Just so you know, because there is a line conflict between amendment BQ-2 and government amendment number 1, if government amendment number 1 passes, then we cannot deal with Bloc amendment number 2.