Justice Committee on March 25th, 2013

[The Chair, Conservative, Mike Wallace]

You're done now.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

I'm done. Sold.

[The Chair, Conservative, Mike Wallace]

Thank you, Monsieur Goguen.

The amendment that has been moved is technically amendment G-1 in the sheets that have been handed out, and if amendment G-1 is passed, it will automatically apply to amendments G-5 and G-7.

Are there any further questions on that amendment?

(Amendment agreed to [See Minutes of Proceedings])

(Clause 2 as amended agreed to)

(Clauses 3 to 8 inclusive agreed to)

(On clause 9)

[The Chair, Conservative, Mike Wallace]

There are a number of amendments on clause 9. The first one will be amendment G-2, which was moved by Mr. Seeback.

I will give the floor to Mr. Seeback to explain his amendment.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

During testimony, we heard from both Mr. Gill and today from our witnesses. It struck me that we are missing something when we are defining what activity a person should or should not do. My amendment proposes to add “coerces”, because it seemed clear from the evidence that in a number of circumstances a person can be coerced into joining a criminal organization through threat or some other means, and this amendment would seek to address that concern.

[The Chair, Conservative, Mike Wallace]

Are there any questions?

Madame Boivin.

[Françoise Boivin, NDP, Gatineau, QC]

We will not have a problem with that amendment. It's not the first time we've seen it.

We saw it in the case of human trafficking. In fact, I'm glad the amendment was introduced. What's more, we're aware of what Minister Swan told us.

I think he opened up a window in terms of also considering the coercion used to keep young people in the gang. The matter of coercion is not included in the bill. But it's a private member's bill that pertains to a very specific situation. So let's start by dealing with that. It makes a lot of sense to me, under the circumstances.

[The Chair, Conservative, Mike Wallace]

Okay. Is there anything further on that amendment?

(Amendment agreed to [See Minutes of Proceedings])

The next amendment on clause 9 is amendment G-3, which changes the word “a” to “the”.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

This is a consequential amendment. It proposes a technical amendment to the English version of clause 9. The proposed amendment would address a discrepancy between the English and French versions of the proposed offence. The amendment would make clear in both languages that the requirement to join a criminal organization must be for the criminal organization that will be enhanced. It would do so by amending the English to read, “to join the criminal organization”. This is the intent of the provision. It is captured by the French version, but not by the English version. The intent is also consistent with the provision of section 467.11, the organized crime participation offence. It is a consequential amendment.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Goguen.

Any questions on that amendment?

(Amendment agreed to [See Minutes of Proceedings])

Now we're on LIB-1, which is votable. It was introduced by Mr. Cotler, but Mr. Casey is here.

Mr. Casey, I'll turn the floor over to you, if you'd like to talk to this amendment.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chairman.

The proposal here, of course, is to remove the mandatory minimum penalty from Bill C-394, as the Liberal Party is opposed to mandatory minimum penalties. We trust our judges and we trust that judges will use their discretion.

I was quite interested to hear the preamble to a question from Mr. Albas earlier today that showed me some glimmer of hope that maybe judges are from time to time required to be trusted as well. I live in hope that we might have a convert to our philosophy on this.

We trust judges to provide sentences that are appropriate in the circumstances and to reflect the gravity of the offence, as well as the conduct of the offender. Mandatory minimum penalties may, in some instances, lead to charter rights infringement, and we have seen courts in Ontario and B.C. strike these types of provisions down in recent cases.

Lastly, all the available evidence, including that from our own Department of Justice, concludes that mandatory minimum penalities do not serve as a deterrent. You will recall that I asked a direct question of Mr. Gill, who couldn't point to a single piece of evidence contrary. Mandatory minimums cause more crime, both in prison and out of prison, contribute to prison overcrowding, which may itself lead to charter violations, all the while in no way contributing to the rehabilitation or reintegration of the offender into society, a reality ignored by a focus on incarceration alone.

Thank you, Mr. Chair.

[The Chair, Conservative, Mike Wallace]

Thank you, Mr. Casey.

We have a speakers' list. We'll start with Mr. Albas and work our way down.

[Dan Albas, Conservative, Okanagan—Coquihalla, BC]

I just want to reiterate, Mr. Chair, what I said the last time we discussed this bill, that is, my spirited defence of mandatory minimum sentencing, which has a long history in Canada. Since 1903 we've had mandatory minimum sentences as part of our justice system, and I abide by that. Unfortunately, there was some reinterpretation or misunderstanding. Maybe Mr. Casey and I can chat about it after. I'd like to hear where he got that from.

Thank you.

[The Chair, Conservative, Mike Wallace]

There are always the blues, Mr. Albas.

Mr. Seeback.

[Kyle Seeback, Conservative, Brampton West, ON]

I would just add to what Mr. Albas had to say, my colleague. There have been mandatory minimums in the Criminal Code for over 100 years. My colleague from the Liberal Party seems to take great umbrage at mandatory minimums, but I would note that not once during their time in government did they remove mandatory minimum penalties. In fact, in certain circumstances some of the Criminal Code amendments they brought forward had mandatory minimum sentences.

I just thought that would be important to have on the record.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Mr. Goguen.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

While we may not be that far from the river, Mr. Chair, I believe we're quite some distance away from a conversion.

[Voices]

Oh, oh!

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

In any event, in an organized criminal context, we know that the sentencing courts are often guided by principles of denunciation and separation from society. I think some of the testimony backed the fact that you need a mandatory minimum when you're recruiting someone who is a minor. The six-month proposed mandatory minimum penalty advances the objectives and sends the right message when it comes to denunciation and to separation from society. We feel it's a fundamental part of this bill, and of course we'll be voting against the amendment.

[The Chair, Conservative, Mike Wallace]

Thank you.

Ms. Boivin, you have the floor.

[Françoise Boivin, NDP, Gatineau, QC]

On the topic of mandatory minimum sentencing, various witnesses have appeared on a number of bills and told us that it isn't the most effective approach. They also mentioned the fact that it could lead to court challenges in certain cases.

The committee members no doubt recall what former Supreme Court Justice John Major told us. He said that mandatory minimum sentencing did not necessarily violate the charter. Provided it isn't unreasonable, the sentence can be analyzed and viewed on the basis of its objective. So it will always be subject to that sort of analysis. The Criminal Code already contains various provisions that include minimum sentences.

As a rule, the NDP is generally opposed to the idea of determining the sentences that the courts should impose. We still believe, and always will, that the courts are the best authorities to make those decisions. Sometimes minimum sentences constitute the shortest periods that can be imposed. That being said, however, that is our position on Bill C-394. It is sometimes necessary to choose the lesser of two evils. Everyone is familiar with what the committee has heard. The Boys and Girls Clubs of Canada and all the witnesses we heard agree that, while Bill C-394 is an essential element, a well-balanced policy is also necessary. It can be useful under the circumstances.

I think it's important that we look closely and not reject mandatory minimum sentencing simply on principle. We examine each and every bill individually, with a view to determining whether what it seeks to achieve is necessary under the circumstances. I hope that, if judges read what the politicians and lawmakers have said while studying a bill, they will understand the key message that the members of this committee are trying to send. Criminal organization recruitment is not something we will tolerate.

In that sense, a six-month sentence seems very light to me, but I am not encouraging the Conservatives to lengthen it. We will leave that to the courts. Between six months and five years, there is ample leeway for the courts to decide on a reasonable sentence under the circumstances.

Another important consideration is this. There is no question that the same system will not apply to young offenders under 18 years of age—I believe our Library of Parliament analyst made that point clear. In any case, given everything our witnesses today have told us, I'm not sure I want to see young people being sent off to prison for six months. They turn into hardened criminals schooled in the ways of criminal life. So that's really the borderline.

However, like the Liberal member, we are somewhat allergic to the notion of telling the courts what to do. But, at the same time, I think there is sufficient leeway for the courts to exercise discretion on a case-by-case basis.

[The Chair, Conservative, Mike Wallace]

Thank you.

Is there any further discussion of this amendment?

(Amendment negatived [See Minutes of Proceedings])

LIB-2 is an amendment to clause 9 also, and I am ruling based on this:

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.

That's out of the House of Commons Procedure and Practice, page 766.

In the opinion of the chair, the creation of an exemption for a certain class of persons, where one does not currently exist, is contrary to the principle of Bill C-394. The new provision should apply to all equally, and this is therefore inadmissible.

Are there any questions? Amendment LIB-2 is removed. Thank you very much.

Now we have amendment NDP-1. Are you moving that, Madame Boivin?

[Françoise Boivin, NDP, Gatineau, QC]

Yes, I am.

[The Chair, Conservative, Mike Wallace]

It wasn't in our original package; it was circulated today.

The floor is yours, if you are speaking to it.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

First of all, as I told the parliamentary secretary a moment ago, I'm not in the habit of introducing amendments at the last minute, and I apologize. It's important to understand, however, the context in which we study certain bills here, in committee. In light of that, this shouldn't be that surprising. Much of the time, we are asked to submit any amendments we may have by such and such a date and time, even though we still have witnesses to hear from. It troubles me every time that happens.

I think it's important to make that point clear to the committee. It complicates things. Seriously, sometimes I have amendment ideas, but they aren't enough to mobilize a number of people to draw them up and so forth. They may be just ideas, and I may have more questions once I've heard the other witnesses.

Sometimes, we have to suffer through an amendment such as this one, a bit on the fly, as you will say. You all have the amendment in front of you. The amendment had actually been drafted initially. I held it back, however, for the simple reason that we had come to the conclusion that subparagraph 718.2(a)(ii.1) of the Criminal Code already provided for an additional penalty or an aggravating element when a crime was committed against a minor. So, then, we could assume it would involve the type of file we have before us, specifically Bill C-394.

That said, I think Minister Swan's comments were quite clear. His brief contains many other elements he would like to see implemented. We will study that carefully and, then, see whether the government decides to introduce other bills or whether other members decide to introduce private member's bills in response to some of his recommendations. Time will tell.

There is an amendment we can definitely make as we speak. We must send a clear message about the arena in which recruitment takes place. The minister put it quite well, for that matter. One of his recommendations was to make recruitment near a school or community centre an aggravating circumstance. He didn't propose making it a separate offence but, rather, an aggravating circumstance that the court would have to consider with respect to sentencing.

I think that fits very nicely into what our colleague Parm Gill was trying to achieve by introducing Bill C-394. It sends an additional message to the courts, which must examine the circumstances and establish the length of the sentence somewhere between six months and five years.

If the evidence shows that the person was indeed caught recruiting near a school or community centre, this sends a clear message that doing so is categorically unacceptable and represents the worst case scenario. As I see it, recruitment of any kind is despicable, but doing it in vulnerable areas where kids hang out, schools and community centres, is even worse.

So that's the gist of the amendment proposed. To my mind, it fits into Bill C-394 quite nicely.