Justice Committee on Oct. 26th, 2010

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

A point of order, Mr. Chair.

Before we begin the clause-by-clause study, I would like to say that Mr. Ménard's proposal should be given serious consideration. From now on, when we have a government witness like Statistics Canada, we must have the document.

I am as irritated as Mr. Ménard. I would like the document and the accompanying text to be in our hands at least two or three days ahead of time. It is not like the witness is coming from Edmonton, this is a witness from the government. That means it is not someone that we have called, it is someone who works for the government.

Could you make a note that it is important that, if we want to do our job properly, we have to have documents like this in advance from now on, especially statistical documents. This one is 25 or 30 pages long. Let's have them ahead of time!

[The Chair, Conservative, Ed Fast]

Could I ask the clerk to pass that on to Statistics Canada: if it's possible, to get the written material to us ahead of time rather than right at the meeting? It would be helpful. It helps us in asking questions as well.

Ms. Jennings.

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

I'm finding myself in the curious position of agreeing with Maître Petit.

[Voices]

Oh, oh!

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

I know—heart attack. Is there a defibrillator here?

I agree more with Mr. Ménard, but I feel that Mr. Petit's point of view is very important, especially when we move to clause-by-clause study after hearing from the witnesses.

It would be different if we had more days and we were hearing from other witnesses at different sessions. But if we got the document on the same day as the witnesses made their presentations, we would at least have the time to get organized if we had questions to ask.

But here, we are going right from the testimony of the witnesses to clause-by-clause study. So, in cases like that, we must insist that witnesses provide us with documents before the day on which they appear.

[The Chair, Conservative, Ed Fast]

We've passed it on to the witnesses so they know for next time.

We have two items. First of all, we want to welcome our two witnesses, our justice department officials. They are Carole Morency and Paula Clarke. Welcome back.

Second, you should have in your possession three amendments. As we move along, we'll do those in order. Does anyone not have the three amendments? There are two Bloc amendments and one Liberal amendment.

All right, we'll move to clause-by-clause consideration.

Pursuant to Standing Order 75(1), consideration of clause 1 is postponed.

(Clause 2 agreed to)

(On clause 3)

[The Chair, Conservative, Ed Fast]

Moving to clause 3, there are two proposed amendments. They are both Bloc amendments. I would ask Monsieur Ménard to introduce the first one.

Go ahead, Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Actually, the two amendments are intended to remove the minimum sentence of six months for motor vehicle theft. It applies from line 8 to line 12. That is the intent. If we remove the minimum sentence, we will no longer need the second paragraph, and that is actually the intent of the second amendment.

For once, I find it relatively lenient. It targeted a specific goal with moderation.

It is true that, generally speaking, I do not find minimum sentences to have sufficient effect on crime rates to make them into a habit. Recently, the Conservative government has consistently given us the impression that they really are making it a habit.

Personally, I am really afraid of this trend. It is an American trend and it gives the United States one of the highest incarceration rate in the world: over 760 inmates per 100,000 Americans. In Canada, we have between 103 and 116, according to last year's statistics. Canada is comparable to western Europe, Australia, New Zealand, and so on.

That is why I have a horror of using minimum sentences systematically. But I will say that I am in favour of some minimum sentences.

My position is not rigidly ideological. I agree with keeping them for murder, because it is one of the most serious crimes. Murder is voluntary homicide, so the criminal intent is really reprehensible.

For minor violations, I agree with minimum sentences for repeat offences. Drunk driving, for example, is a crime committed by people who are generally not criminals. Criminologists know that, in those cases, minimum sentences can have a positive effect, especially when they are kept for repeat offences. In cases like these, I acknowledge that we are dealing with repeat offences. That is why it seems to me, as a general principle, that those who want to impose a minimum sentence must bear the burden of proving that there is a real need for a minimum sentence in order to get a positive outcome and that there is no other way to do so.

Now, the statistics clearly show that the rate of motor vehicle theft has increased. With the minimum sentence disappearing in 1985—I rely on my colleague Mr. Petit for that, but I have not checked it myself—the increase was not that great, and, even then, it was followed by a drop. I feel that the statistics showing the drop prove once again that prevention measures often have a much better effect on the crime rate. The subsequent drop corresponds to the difficulty in stealing motor vehicles.

Because young people are committing a lot of motor vehicle thefts, we see very clearly... It is called joyriding. They are fascinated by cars. I went through that. Rest assured that I never stole a car, but I remember how fascinated people are by cars when they are young. It is a young person's crime. But you still need a certain amount of skill to get a car started without the keys.

With time, we have developed...then we got results. We often get better results through prevention. So there have also been campaigns to remind people to lock their car doors. You have seen that the crime rate keeps going down.

In spite of those changes, I do not see that the government has proved to our satisfaction that a minimum penalty is necessary. That I why I would stick to my general policy of being against minimum sentences as a principle, unless I can be shown convincingly that this minimum sentence will have a major, tangible major effect on the kind of crime we want to target.

That is why I share my party's view, one that we have consistently expressed in previous years when dealing with bills on this issue. I am not hiding the fact that these amendments that we are proposing are exactly the same as the ones that Réal Ménard proposed to similar provisions in previous bills on the same subject. I have the numbers of those bills somewhere.

[The Chair, Conservative, Ed Fast]

Merci.

I have on the list Mr. Dechert, Mr. Woodworth, Ms. Jennings, and Mr. Lemay.

We will begin with Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

First of all, Mr. Chair, I'm a little confused by Mr. Ménard's position at this point in raising this objection and putting forward this amendment. I was in the House on October 6 when this bill was debated. I listened very intently to what he had to say. With respect to the mandatory minimum sentence he said the following:

We've seen this in the United States, where there are many minimum sentences. Moreover, this is one of the problems with minimum sentences. In this case, there is no such problem. I feel that a six-month sentence for a third offence is reasonable. It can certainly act as a deterrent. As honourable members can see, the Bloc's objections are not ideological, but are based on rational knowledge, experience, and criminology.

All I can say is that I agreed with Mr. Ménard then; I thought he made a good point. I think many people in the House of Commons who heard that did.

Secondly, we heard from a number of witnesses, when we were traveling in Winnipeg and other cities during our study of organized crime, about the large number of auto thefts that are committed by a small number of repeat offenders. During the debate in the House, we heard about some of the tragic cases that have come out of some of these auto thefts in which innocent people have been killed by the stolen cars driven by repeat offenders.

For example, there is a very famous case, which Mr. Ménard will remember, that we heard about in Winnipeg, in which a young woman was jogging. She was struck and killed by a stolen car driven by a repeat offender who in fact was out with the intent of seeing how many joggers he could hit. It is a very famous case there. In the case that I believe in part the Nunn commission was responding to, my recollection of the facts—and Mr. Murphy can perhaps correct me, if I'm incorrect about it—is that a young repeat offender who was driving a stolen car killed a victim with that stolen car.

There is a lot of evidence to suggest that many of the worst crimes committed with stolen vehicles are committed by repeat offenders. A mandatory minimum penalty will not only send them a message that this is not tolerable behaviour; they will have to think a long time, while they're in that jail sentence of six months, thinking about what they have done and the danger they cause to the public.

And obviously, while they're in incarceration they can't be committing another auto theft and putting the public in danger, as the individual did in the case that led to the Nunn commission.

Thirdly, I would point out that under this legislation the prosecutor has a discretion to decide whether to proceed by way of summary conviction or indictment. If he proceeds by way of summary conviction, there is no mandatory minimum; the mandatory minimum only applies when he chooses to proceed by way of indictment. Obviously the prosecutor will look at each case, and when he has a serious repeat offender who he thinks poses a threat to the public, that's when he will proceed by way of indictment, which would result in the mandatory minimum penalty.

For all those reasons, Mr. Chair, it's my view that a mandatory minimum penalty of six months after the third offence of this sort is very reasonable and actually quite limited. For those reasons, I would ask all the members of this committee to vote against this amendment and support the bill as drafted.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Woodworth.

[Stephen Woodworth, Conservative, Kitchener Centre, ON]

Thank you very much, Mr. Chair.

I can't quite understand how it is that although we hear all the time that crime statistics are going down, when we actually see evidence that they're going up, the response is “Oh, well, they fluctuate up and down. It doesn't matter.” I don't see how we can ignore the evidence we've heard today that apparently around the time the mandatory minimum was removed, there was a jump in motor vehicle thefts reported to the police, and I notice that it almost doubled in the ten years following that. While we've wrestled it down again, probably with great devotion of police resources, it has still never returned to where it was in the mid-1980s. We just can't ignore that evidence.

Second, this is a commercial offence at the point that you're getting to the third conviction. We are not talking about young offenders. We're talking about adults, and the evidence we've heard is that the number of adult charges for taking a motor vehicle without consent has gone up since the year 2001. It was previously below 2,000 and now it's over 2,000. As well, the evidence we have heard is that for adults, the total number of charges for property obtained by crime has gone up since 2001. It was 28,444 in 2009 and it is now 30,183, so we're not talking about young offenders here; we're talking about adults.

Nor are we talking about committing joyriding, as Monsieur Ménard mentioned. Nothing in this statute removes the offence of joyriding. If someone is charged with joyriding, that person is not going to be subject to a minimum penalty. If they are convicted of theft of a motor vehicle--it is entirely different from joyriding--three times, at that point they will be subject, at the prosecution's discretion, to a mandatory minimum penalty.

For those reasons I hope we won't take an ideological approach, and that in this particular case, because of the evidence before us that he was good enough to draw to our attention, perhaps Monsieur Ménard can see his way clear to agreeing with the mandatory minimum.

Thank you.

[The Chair, Conservative, Ed Fast]

Go ahead, Ms. Jennings.

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

Thank you, Mr. Chair.

I very much appreciate the comments that our colleague Mr. Ménard is making to justify the amendments he is suggesting, but I am not going to be able to support them.

I would like to explain my reasons briefly. First, these minimum sentences would not apply to young offenders. Secondly, in my opinion—and I hope I am accurately reflecting his words—for once, the Conservative government has zeroed in on a problem with surgical precision. Third, the minimum sentence proposed by the bill is quite lenient.

And because of the fact that the government has once more gone to the trouble to establish that it has to be a third conviction for the same offence, I feel that I can support the clause in Bill S-9 as written, with no hesitation or difficulty, and I am comfortable doing so.

I am very comfortable justifying my vote for the clause as written and against the amendments that you are proposing, Mr. Ménard.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I would like to agree with everything that has been said, but you know I have some difficulty with minimum prison terms. What concerns me about minimum sentences in this bill, and what intrigues me...The rate of motor vehicle theft has clearly gone down. But what concerns me it that it has increased in the Northwest Territories and the other territories in the north.

You know that I also sit on the Standing Committee for Aboriginal Affairs and Northern Development. Clearly, statistics can be made to say anything. Manitoba has lost its championship, of course; unfortunately, the province now ranks third. I feel that it is going to go ever lower because of the measures taken by the police forces. But the problem is growing in the north. So we have Inuit stealing skidoos because it is part of their reality. They do not steal cars; they steal snowmobiles, which are motor vehicles to them.

When I was a lawyer, I went around the north. I had clients there, and we could feel this coming. They are going to steal four-by-fours, they are going to steal skidoos, and they are going to end up in prison for a minimum of six months.

I have reservations too. I would likely share Ms. Jennings' opinion. I would vote against minimum sentences. I have always voted against them because I do not feel that they are the solution.

But now we are getting into something dangerous. If you look at the statistics on page 3, in the column called Northwest Territories, you will see that it is not just about skidoos. Ms. MacAulay brought the table to show us. What we are doing now is dangerous. That is why I would really hesitate to impose minimum sentences. At least, I would wait a little, even if it means going back to it later. Motor vehicle theft is dropping everywhere, except in the north.

I can assure you that in Quebec, where there were 351 thefts, a lot of them were in and around Montreal. That is clear, we know that.

[An hon. member]

There are some in Trois-Rivières.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

There are some in Trois-Rivières as well, but there are a lot in the north, in Nunavik.

Kids steal…I say “kids”, but the gentleman is right, these are adults who are 18, 19, 20 or 21 years old and they are stealing snowmobiles and quads, lots of quads. That is what concerns me most: we are going to be filling up our prisons, but with Inuit and Aboriginals. For me, that is a greater concern than minimum prison terms.

[The Chair, Conservative, Ed Fast]

Go ahead, Mr. Murphy.

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

I have a question on this amendment.

I adopt everything Marlene said and therefore would be supporting this mandatory minimum, but I want, in my own head, to be assured that we have a correct understanding of the hierarchy of offences in our heads.

If you look at part IX of the Criminal Code, which deals with offences against rights of property, there are things like theft, armed robbery, criminal interest rate, breaking and entering, and being in a dwelling house unlawfully. There's something here about oyster beds, which I found fascinating. Anyway.... It goes to the modernity of the code.

The way I read it, the most serious offence in this section is armed robbery. In 1995 there were mandatory minimums attached to some of those serious offences. We're now putting theft of a car at the next plateau in terms of mandatory minimums. I don't think there are any others, and we're leaving on the tree--maybe there will be other pieces of legislation coming forward--breaking and entering for the purpose of committing a crime, being in a dwelling house unlawfully, some of the other offences, and then just normal theft. It may be the right message that we see armed robbery as extremely serious, with heavy mandatory minimums. We see auto theft for the third time as something that needs to be curbed in society, and we see some of the other offences to be handled at the discretion of a judge in giving up to the maximum of whatever the case may be--six months, ten years.

Am I right that this is the only section of part IX that has a mandatory minimum?

I am happy to support this measure, but the message should be sent to the government, or the next government, that we need to look at the code and prioritize. If you looked in our communities and found that somebody has been the subject of a third home invasion, you might want to think of that as something you might want to look at as well, as long as it's measured and as long as it's proportional. In this case, this is fairly proportional, so I support it.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Lee.

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

Thank you.

I had one quick question because the issue of joyriding came up. I just wanted to ask the officials if an individual could be charged with both joyriding and auto theft arising out of the same facts. And depending on the answer to that, could an individual be convicted of both, arising out of the same set of facts?

[Paula Clarke, Counsel, Criminal Law Policy Section, Department of Justice]

Yes, that's correct. Joyriding is not a lesser and included offence, but actually a separate offence, and it is possible to be charged and convicted for both.

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

Interesting.

I just wanted to say as well, in connection with the mandatory minimum, that if this were a “three strikes and you're out” thing, I wouldn't support it. It appears that it isn't a “three strikes and you're out” thing, because in order for a third or subsequent offence to involve a mandatory minimum, the prosecution would have to be by way of indictment. So I guess discretion is in the hands of the crown.

Have I got that right? Can the officials confirm that?

[Paula Clarke]

Yes, discretion is left with the prosecutors to decide on any given offence--but in this case in particular a third or subsequent offence--whether the facts of the case warrant proceeding by indictment, thus going after the six-month mandatory minimum penalty, or whether a summary conviction is the most appropriate course to take in a given fact situation.