Evidence of meeting #4 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was system.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

9:10 a.m.

Liberal

The Honourable Irwin Cotler Liberal Irwin Cotler

Thank you, Mr. Chairman.

I want to welcome our witnesses this morning. Both of you have mentioned that Canadians have given us a strong mandate for safe streets and communities. That is correct. But Canadians give every government a strong mandate for safe streets and communities. Indeed, governments have an obligation to protect their citizens, so the question really then becomes how do governments go about doing that?

Even before this legislation was tabled, we had a serious problem with prison overcrowding. Indeed, in some provinces it had reached 200%. Recently the United States Supreme Court said that a threshold of 137% and above that, in prison overcrowding, would lead to cruel and unusual punishment. How do you address this question? Because if we had a serious problem before this legislation, that problem may be exacerbated by the legislation. How will the provinces, on whom this will be off-loaded, be able to deal with this?

9:10 a.m.

Conservative

Vic Toews Conservative Provencher, MB

Perhaps I can try to answer part of that question.

Of course the American system is very different. The federal system in the United States doesn't even have a parole system. There is no mechanism to relieve any pressure through that, so the courts had to make a very arbitrary decision in that respect. I believe in the federal system in the United States you serve 85% of your sentence and you get 15% off for good behaviour, but there is no parole system.

The idea that somehow—and I can speak from the federal point of view—the legislation that we brought forward is causing overcrowding is mistaken. At the beginning of 2010 we had approximately 14,000 prisoners in the federal system, with a capacity of 15,000. Officials advised me there would be an increase of prisoners to 16,200 by September of this year. In fact the number is 14,800. They underestimated the number of prisoners coming into the system, or remaining in the system, by about two thirds.

At the same time, we authorized the construction of 2,500 new units in existing prisons to accommodate any additional prisoners that might come. To date, those have not been constructed and it has not been necessary to utilize them, although I can say that prison officials have to be creative in terms of moving individuals, because of the pressures of gangs and the like. So the 2,500 units that we have authorized that are coming online in the next couple of years will be necessary to ease some of those pressures and also to create flexibility in terms of some of the gang problems we have inside prisons.

9:15 a.m.

Liberal

Irwin Cotler Liberal Mount Royal, QC

Mr. Chairman, for reasons of time I'm going to turn to another issue. Since I am in dialogue with Mr. Toews, I'll put this question directly to him.

You've referenced an important piece of legislation that has not been taken particular note of in this bill, and I'm referring here to the amendments proposed respecting the State Immunity Act, which will give Canadians a civil remedy against their foreign terrorist perpetrators.

The legislation that you have proposed provides for a listing mechanism. The government—the Governor in Council—lists the countries against whom such a civil remedy can be invoked. As you know, there have been private members' bills that have offered other approaches as alternatives to a listing mechanism, for some of the reasons I think you know. In particular, a witness who the government called upon in earlier debates on this matter, Victor Comras, from the United States, supported the principle of a civil remedy, as I do, and said with respect to the listing mechanism, and I believe I am quoting him directly, “Don't go there. We made a mistake.”

I am asking whether you are you prepared to consider other alternatives, or could you give me the justification in that context for the listing mechanism?

9:15 a.m.

Conservative

Vic Toews Conservative Provencher, MB

Mr. Cotler, I do respect your opinion very much. As a result of our conversation, I spoke with officials and asked if it was justified that we look at some alterations here. The officials basically stated that they believed this was the best way to proceed.

I would encourage you to interview those officials to have that discussion. I don't know if there's any flexibility. We've discussed both sides of that issue. I think we both want exactly the same thing: justice for victims of terrorism. Certainly I know that I'm willing to consider arguments, but officials advise us that this is the best route at this point.

9:15 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Ms. Findlay.

9:15 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you, Mr. Chair.

My question is for Minister Nicholson.

I believe that all honourable members here wish to do everything possible to protect our children from harm. As a parent, it's certainly a great fear of mine any time that I hear that a child has been hurt or could be.

Children are particularly vulnerable to sexual abuse and exploitation and are in fact, as I understand it, the majority of victims of all police-reported victims of sexual assault in Canada. Children represent 59% of all police-reported sexual assault victims, which I believe is about 13,700 children under the age of 18 in 2008 alone. My source for that is StatCan's Centre for Justice Statistics' uniform crime reporting survey.

Minister, is there a risk that implementing mandatory minimum penalties might result in more plea bargaining?

9:15 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

One of the things you will notice is that the bill is comprehensive in the sense that it covers a wide range of sexual assaults or offences against children. It's designed, among other reasons, to make sure that an individual who is in the business of molesting children or abusing children does not escape the penalties that are within the Criminal Code.

In addition, it goes beyond the existing offences because we know that we have to continuously analyze what takes place in this type of activity. This is why we have included two new offences. While it is an offence for an individual to lure a child over the Internet to set that child up to be sexually exploited, it currently is not an offence in the Criminal Code for two adults to discuss among themselves how to do that. That is one of the changes that we have made.

The other change we have made, and again this is in response to problems we have heard about, is to make it an offence for somebody to give sexually explicit material to a child for the purpose of grooming that child, in essence setting that child up to be sexually molested because the child thinks that this is somehow normal behaviour.

Again, part of the challenge that we always have in the Criminal Code is to make sure it continues to respond to what takes place out there. As you know, this is an increasing problem. I hear in my conversations with attorneys general outside Canada about the increase in this kind of activity on computers, so our job as legislators is to try to make sure that our legislation is up to date and covers as much of this activity as we can possibly get within the Criminal Code. You will see it's very wide-ranging and comprehensive.

My colleague has a comment.

9:20 a.m.

Conservative

Vic Toews Conservative Provencher, MB

With respect to the issue of plea bargaining, plea bargaining often has a bad reputation. Plea bargaining is absolutely essential for the operation of the justice system, and I say that as a former crown attorney. It's the abuse of plea bargaining that we have to be mindful of.

A principled crown attorney will make an agreement if he believes that the public interest and the interests of justice can be served through another arrangement. That's essentially what a plea bargain or a plea arrangement is.

Mandatory minimum sentences certainly encourage people to look at their alternatives. What they also do is that if a person goes to trial and receives the mandatory minimum, that individual is no longer back on the street as quickly and then committing more offences.

Some say it may delay the process because of additional trials, but in the long run these types of mandatory minimums, properly focused on appropriate offences such as these, will in fact lessen the burden on the justice system.

9:20 a.m.

Conservative

The Chair Conservative Dave MacKenzie

You have thirty seconds for a short question and a short answer.

9:20 a.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

We hear a lot from the opposition about the statistics on crime going down. Is that true when it comes to sexual offences against children?

9:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

No. You might have missed that in the discussion, but the child pornography and other offences against children are actually increasing. I hear in discussions with my counterparts outside of Canada that this is increasingly becoming a problem.

A problem is a problem, and it's not just a question of statistics. We want to deal with this. It's the same thing with drug crimes: drug crimes are up in Canada.

But, again, I always say we're not governing on the basis of statistics. I'm not bringing these forward because of the latest statistics. We're bringing these forward because I believe they're the right thing to do.

To better protect children within the criminal law of this country, we should be making these changes and we should be bringing in the two new offences I just outlined for you. It's important to do that.

But you are quite right, the incidence of these types of crimes is going up.

9:20 a.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Stewart.

9:20 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

Thank you, Mr. Chair.

I welcome the witnesses. You'll have to excuse me if I jump right to questions. My time is short.

I am mostly interested in questions regarding the Controlled Drugs and Substances Act. My first question, for Mr. Nicholson, would be regarding the “six months for six plants” aspect of this bill. In terms of the size of the marijuana plants, it says that it's six plants; it doesn't seem to be defined. Would seedings be considered here?

9:20 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Again, we rely on police, and it's a question of fact in each case. Since you raised the six plants, the individual has to be in the business of trafficking—the business of buying and selling these. As you know, when these matters go before court, it's a question of fact in each case.

9:25 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

Of course the police would need some guidance on this. Will there be any guidance provided?

9:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

They get guidance from provincial attorneys general, crown attorneys. They're the experts, quite frankly.

I've been very impressed in my meetings with them over the years. They tell me what a serious problem this is in terms of health and safety and how many times this provides the currency for harder drugs.

It is a big problem, and we're addressing it in this particular piece of legislation.

9:25 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

But it is possible that someone could go to jail for six months for having six seedlings in a window box?

9:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

He has to be in the business of trafficking in drugs. I've introduced this four times, and I appreciate that my critics don't want to talk about that because that hurts the case against getting rid of the whole bill. But that is an essential part of that, and that has to be proven in every case.

9:25 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

Well, I'm happy to talk about trafficking. I was just wondering how exactly you determine if someone is—

9:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

If you're happy to talk about trafficking, we're on the same page. That's what we're talking about in this bill. This is good news.

9:25 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

I would like to know how exactly you determine whether someone is trafficking in six seedlings.

9:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Law enforcement agencies can tell you the things they look for. I mean, it's becoming quite sophisticated. I've been across the country and I've had these conversations with them. They tell me they see the changes within the business. They tell me, for instance, the grow-op business has moved outside the cities and into the country, where they feel they may be under less scrutiny.

There have been developments in that. When you talk with law enforcement agencies, I think you'll be very impressed by how sophisticated and how expert they are becoming.

9:25 a.m.

Conservative

Vic Toews Conservative Provencher, MB

I can offer a very practical suggestion. If you want to learn a little bit about the law of trafficking, sit in on a provincial court or superior court trial. They'll explain the law quite thoroughly and the types of considerations that police make in determining it. These are very well-established principles. We are not changing those principles in any way.

9:25 a.m.

NDP

Kennedy Stewart NDP Burnaby—Douglas, BC

My second question will be regarding the Supreme Court's recent striking down of an attempt to shut InSite, which is a safe injection site in the downtown east side of Vancouver. With so many costs being imposed on the provinces, because most of these offences with mandatory minimums will result in people going to provincial jails, I'm wondering if the government has explored the possibility of a charter challenge or a court challenge from the provinces in light of this off-loading of expenses.

9:25 a.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

The provinces are very well aware of what we are doing--as I said, it was at least four years ago that I introduced this bill before Parliament--and they have underlined to me what a problem drug trafficking is within the provinces. So they're well aware of the components of this bill. As I say, this bill is identical to the one that died on the order paper with these particular provisions.

Again, I appreciate the support of our provincial colleagues. Dealing with my provincial counterparts over the years has been very helpful, for instance, in getting rid of the two-for-one credit. They were unanimous on a couple of occasions, telling me they want us to move forward, because they said that would free up provincial resources, that provincial courts were getting clogged by people who were continuously getting adjournments because they were racking up two-for-one credits. Again, we work with them, and they're well aware of this, and I've been very appreciative over the years of their support for our efforts to crack down on drug traffickers and other criminals.