Evidence of meeting #49 for Justice and Human Rights in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was data.
A recording is available from Parliament.
February 16th, 2011 / 4:25 p.m.
Conservative
Stephen Woodworth Conservative Kitchener Centre, ON
I'd like to speak briefly to that point of order, because I want to make sure I understand the process. Can I assume the fact that a parliamentary secretary may speak for the government doesn't prevent me from speaking, if I choose to do so?
4:25 p.m.
Conservative
The Chair Conservative Ed Fast
Monsieur Petit, I just want to clarify. We're going to have a recorded vote on each clause. Some of the clauses we may want to group together, with the unanimous consent of the committee. If that happens, are you okay with it?
4:25 p.m.
Conservative
4:25 p.m.
Conservative
4:25 p.m.
Liberal
Marlene Jennings Liberal Notre-Dame-de-Grâce—Lachine, QC
Just on procedure, is the simple request by a member to have a recorded vote on every single clause sufficient? Is there no vote? Does it just happen because a member asked for it? Is that the procedure?
4:25 p.m.
Conservative
The Chair Conservative Ed Fast
That's my understanding, yes. If a member requests it, it's incumbent upon the chair to allow that to happen.
4:25 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Mr. Chairman, I wish to reconsider my request.
When possible, we might group clauses together. There would therefore just be one recorded vote per group of clauses.
4:25 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you for that. I think it will make this whole process much more efficient.
Is there anybody else who wants to comment?
Go ahead, Mr. Comartin.
4:25 p.m.
Conservative
4:25 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'm going to want discussion on a number of others. I tried going through all of them and I just ran out of time. Then in the case of several, I couldn't understand what we were doing with them. This is one of them.
May we have a quick explanation from the officials as to what the effect of adding this to subsection 7(4.1) of the code will be?
4:25 p.m.
Carole Morency Acting General Counsel, Criminal Law Policy Section, Department of Justice
Clause 2 of the bill is amending the provision that we commonly refer to as the “child sex tourism provision” in the Criminal Code. This provision provides Canadian authorities with extraterritorial jurisdiction to assume an investigation and prosecution of a Canadian citizen or resident who travels abroad and commits one of the enumerated offences that, if it had been committed in Canada, could have resulted in the person's being charged and prosecuted here. That law has been in place since 1997.
Bill C-54 is adding the new offences to the provision. We're adding the two new offences being proposed by Bill C-54 as well as doing some other housekeeping, because with Bill C-54 we're trying to ensure consistency across the board. The provision would also be broadened to add the section 171 offence of “Householder permitting sexual activity” as well as the “Luring a child” offence, which is currently a Criminal Code offence but is not listed in the section before you, as well as the two new offences.
With this, the intention would be that if a Canadian goes abroad and commits one of these four offences that are not now listed, it is possible to have a Canadian prosecution. It is always subject to whether the Canadian is charged and prosecuted for that offence abroad; if not, a Canadian court could assume the jurisdiction.
4:25 p.m.
Some hon. members
Agreed.
4:25 p.m.
Conservative
The Chair Conservative Ed Fast
Actually, we need a recorded vote.
(Clause 2 agreed to: yeas 11; nays 0)
(On clause 3)
We'll move on to clause 3. We have a Bloc amendment, and you have it in your package.
Monsieur Ménard, would you like to introduce that amendment?
4:30 p.m.
Bloc
Serge Ménard Bloc Marc-Aurèle-Fortin, QC
I would prefer to be very clear at the outset. The study I did and the evidence I have heard have convinced me that this bill, overall, is a good bill. I am, exceptionally, prepared to recognize that the minimum sentences set out are in pursuit of a legitimate objective, because we are talking here of children, and these are the most vulnerable victims. These are also victims for whom sexual offences, or even offences overall, have the gravest and most long-lasting consequences.
It is also because I accept that, in all cases where there are minimum sentences, the need to denounce the crime and to impose a punishment and deliver a shock to the individual having committed the offences is important, despite the fact that we know that, in some cases, there will be no impact, in the end, on their recidivism rate. It should be noted that, in those cases, the punishment is even more justified.
Clearly, and I have said so in the context of the study of a good many other bills, I have a bias against minimum sentences. Previously, in other circumstances, I have shown what an awful direction that can lead us in, what that has brought about in countries that have systematically adopted minimum sentences. As I have said, we have no doctrinarian position here. We are prepared to recognize minimum sentences when they are justified. In this case, we consider that they are.
Furthermore, I did a detailed study of the bill and did see that it was carefully drafted and that there is a clear rationale as to the minimums for indictments and summary convictions based upon the seriousness of the offence committed. There is a very broad spectrum. The sentence varies between 15 days and five years. When the sentence is set at five years, it is for offences of armed sexual assault with violence and incest involving a child aged less than 16 years. There again, we heard evidence Monday last, as well as previously. I accept the reasoning of those witnesses, namely that of Mr. Van Gijseghem, who stated that, even if it is strange, there are children who recover.
Lastly, I would like to say that the risk of recidivism in cases of incest is not very high. However, the consequences for the victims are generally crushing, such that, in many cases, minimum sentences are very appropriate in dealing with the risk of re-offending and based on the seriousness of the crimes.
However, there is one thing that always concerns me with regard to minimum sentences. Based on my experience in the practice of criminal law since 1966 and on the experience of other countries where such minimum sentences are enforced, in certain circumstances, this leads to judges not imposing the sentence that they would consider fair and equitable. This is why, in the end, we see cases which, if you think about it long enough, might have justified or not justified the minimum sentence that the judge must impose.
Other Commonwealth countries, as well as certain American states, have provisions such that, when the judge considers that there are compelling circumstances, he or she is not required to impose the minimum sentence on condition, however, of establishing and explaining the compelling circumstances that in his or her view justify the decision.
This obviously has the advantage of not forcing a judge to impose a sentence that he or she considers unfair, as well as the advantage, when one studies the use made of this clause, of determining if the minimum sentences are properly justified or not. This allows for an examination, as is the case in other jurisdictions where such provisions are in place. These are exceptional cases that are difficult to predict.
If there is one context where there is a risk of this arising, it is in the case of the clause that we are presently studying. I understand full well the minimum sentences outlined in subsections 151(a) and (b) and I know what the aim is. What is clearly targeted here is sexual touching involving children. Most of the time, as a matter of fact, when such touching comes to light, it has been continuous and will have obviously been important in the evolution of the child, in the suffering the child will endure during a good portion of his or her life.
It is however impossible to describe this offence without including — and this is what we are doing — occasional touching in specific circumstances. You will have observed that the expert witnesses that appeared are those who have devoted their lives to the study of this issue. I am speaking here of Mr. Van Gijseghem and Mr. Quinsey, who corrected some of our impressions. They told us that sexual offences against children are committed by pedophiles in 20% of cases. In 15% of cases, these offences are those of psychopaths. There therefore are such tendencies present in individuals who do not have these characteristics. The law is important to punish these individuals and to discourage them from re-offending. That is what the law is there for.
Clearly, an individual who begins touching children with a sexual intent during a certain period of time or who decides to indulge in such behaviour deserves a minimum sentence.
However, one can imagine that an individual who had never presented such inclinations or had never acted upon them might do so during the course of some celebration, under the influence of alcohol or for some other reason. Other circumstances could be at play. Such occurrences could involve individuals of approximately the same age. Just one touching incident could not justify sending such a person to prison.
There could be other circumstances as well that might be presented to the judge, but what I am thinking to myself is that, among all of the offences that I have examined, there is just that one case for which I see a real possibility that a judge might consider a jail sentence to be unfair and unproductive.
I put forward my amendment only for those cases where there is touching. In cases where one invites a young person to touch his or herself, this is a criminal act that is more serious than some touching which might just be a very quick gesture.
In drafting my amendment, I asked the law clerk to rely upon various laws containing similar provisions. This is why it is formulated in this way, and I quote:
[...] the court may impose a sentence of detention of lesser duration than the minimum punishment of imprisonment if it is of the opinion that compelling circumstances relating to the offender or the nature of the offence warrant it. If the court does impose a sentence of lesser duration, it shall provide a written statement of its reasons at the time of sentencing and include it in the record of the hearing.
I will bring up another element, a little later on, to justify that. In this case, exceptionally, my party and myself deem and accept that this is one of the rare cases where minimum sentences are justified. It is at both extremes that we presently have minimums that I find acceptable. First of all, we have murder cases, because this is the most serious offence, that which has the greatest impact on victims. At the other extreme, there are short minimum sentences for repeat offenders. These individuals can indeed, in the case of crimes that are not solely committed by people with a criminal past or who are habitual criminals, be threatened with short minimum sentences, which could really have an impact on their risk of re-offending. Such is the case with driving under the influence. The minimum for a first offence is 15 days, and for a second offence, it is 90 days. The criminology studies that I have seen over the last thirty years demonstrate that this can have an impact. Among other things, at sentencing for the first offence, the individual must be advised that, the next time, there will be another minimum sentence.
In this case, it is really because of the impact on the victims and of the fact that it is children that are involved.
We have learned something else: whether or not there is a prison sentence, whether or not there is treatment, it is at the outset extremely difficult to establish those treatments that offer a real chance of bringing people to not re-offend. Whether or not there is an effect is very much hit and miss, which is why, in this area, the offender must endure condemnation and shock. This can prove beneficial and prevent the individual from re-offending. Furthermore, it is generally recognized by the society in which we live, and by all societies in the world, that the protection of children from this type of crime is nearly as important as the protection of life.
4:40 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
Thank you for the introduction to your amendment. I have a draft ruling from the chair before the rest of you intervene here.
It's a ruling, not a draft ruling; it's a ruling.
Bill C-54 amends the Criminal Code to increase or impose mandatory minimum penalties for certain sexual offences involving children. This amendment proposes to allow for the court to exercise its discretion and select a lesser punishment than the minimum provided for by the bill.
As the 2009 second edition of House of Commons Procedure and Practice states on page 766, Principle and Scope: An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.
In the opinion of the chair, the introduction of the concept of discretion is contrary to the principle of Bill C-54 and is therefore inadmissible.
That's my ruling.
Go ahead, Monsieur Ménard.