Debates of Oct. 4th, 1994

Criminal Law Amendment Act, 1994

[The Assistant Deputy Chairman]

I wonder if the hon. member for Crowfoot would finish his remarks and then I will see that the parliamentary secretary responds.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, I would like the Parliamentary Secretary to the Minister of Justice to comment on that. If my understanding is incorrect, and I hope it is, the reason the courts are not convicting is because they do not want to convict a person charged with theft for an indictable offence.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Mr. Chairman, I was referring to another point that the hon. member for New Westminister-Burnaby made in his speech. He talked about the hybrid offences, the dual offences of summary or indictable, that the charges could be either summary or indictable which did not relate to this particular provision at all. This was a general comment as I understood it that in some cases in certain areas where there is not a conviction, the judge will not convict somebody on an indictable offence for an offence they feel is not serious enough to warrant a conviction as an indictable offence whereas if we give the choice of summary or indictable and proceed summarily, the judge will be more predisposed to giving a conviction on that.

The other point the hon. member for Crowfoot made related to the change from the superior courts to provincial courts in certain cases of theft. Granted the situation now is 10 years maximum, but they are not awarding 10 years for theft under $5,000. Now under the Criminal Code they would get a maximum of two years and two years is penitentiary time. I cannot imagine any judge giving two years for theft under $5,000 because it means that person goes to penitentiary. I just do not think any judge is going to do that.

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, am I correct in assuming that what the member has said is that judges are not going to determine guilt based upon the evidence? They are going to determine guilt based upon whether it is a summary conviction or proceeding by way of indictment. I need to have that clarified. If I heard him right that is exactly what he said.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Mr. Chairman, when I am speaking of summary and indictable, I am talking generally. There are sections in the Criminal Code where the charge is proceeded with summarily or as an indictable offence. In some cases the spectrum of the case can range but not to what one would consider a serious crime. If there is just a way of proceeding as an indictable offence the judge is going to say: "If I proceed as an indictable offence, the penalty I have to give is going to be far too serious for the crime". Therefore in certain sections of the Criminal Code there is the choice of proceeding summarily or on an indictable offence.

It is not left to the judge. It is how the case is laid, either as a summary conviction or as an indictable charge. The judge does not have the discretion. That is decided before it goes to court. It is just a means of asking how best to get a conviction. It is left with the crown prosecutor's office to determine the best way to proceed. Do we try for the higher sentence and end up with nothing or should we go summarily and at least be sure we are going to get a conviction?

[Jack Ramsay, Reform, Crowfoot, AB]

Mr. Chairman, certainly the conviction ought to be based upon the evidence. In every courtroom that I have ever appeared in the guilt was determined by the evidence, not by way of proceedings, whether it was summary conviction or indictable. This is the point I am making. I do not want to hang the proceedings up on this point, but the hon. member is saying this clearly. He said three times that it is going to matter to the judge in terms of determining guilt whether it is by way in which the court is proceeding, by summary or by indictment.

What I am pointing out is that the courts in this land have always determined guilt based upon the evidence, not based upon procedure.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Mr. Chairman, we always determine guilt upon the facts of the case. They have always determined sentence based on the facts of the case too. If the facts of the case are such that a stiff sentence is not merited, they are going to have a problem. If there is a choice, you can go summarily and the judge can see a fitting sentence in the summary conviction that meets the process of the justice system and the interests of society because one gets a conviction and a sentence that is going to be fair.

[Michel Bellehumeur, Bloc, Berthier—Montcalm, QC]

Mr. Chairman, this is getting very complicated. I simply want to know whether raising the amount from $1,000 to $5,000 would entail any changes in the procedure before the courts. Is it a case of evidence or evaluating whether we have a theft of $1,000 or $5,000?

My second point is, when you talk about provincial court and superior court, one of the consequences-and that is what my question was about earlier-one of the consequences is that a person accused of theft under $5,000 could not ask to be tried by judge and jury or by a judge alone in Superior Court. He will immediately be processed by provincial court; in Quebec, that is the Court of Quebec. Is that correct? Yes, thank you.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Mr. Chairman, that is correct.

[Svend Robinson, NDP, Burnaby—Kingsway, BC]

Mr. Chairman, currently under the summary convictions provisions, the maximum is six months in jail. You have told the government that you are going to proceed to make it 18.

In the provincial courts they always can proceed on the indictment and handle the more serious charges but I see that the principle here is to take away the options of the accused to elect to go to a superior court.

In these situations as practice has it, these theft offences are usually cumulative. Generally the information is multi charges against an offender. To limit this dollar amount related to summarial procedure is going to really hamstring a judge in being able to give the latitude of sentence required.

We feel that there is really no current problem in the justice system that is reflected in this change, that it sends the wrong message to the community and that we are looking for substantive justification of why this clause is here.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Mr. Chairman, in cases of a series of small offences, the sentences can be imposed consecutively so that there could be higher penalties for more than one offence, so that is still there.

The hon. member is right that the choice is not there but we have no intention of changing the penalties. We are going to as agreed keep the situation the way it is. There is still the possibility of higher sentences in a series of small offences if the judge chooses to sentence the person for each offence consecutively.

[Svend Robinson, NDP, Burnaby—Kingsway, BC]

Mr. Chairman, I would also like the parliamentary secretary to address the issue of the symbolism of the law as to its educative role in the community for general deterrence to operate.

The potential sentence that can arise or if it be a consequence of an offence is directly related to how serious the community should look at that offence.

For example, for breaking and entering a dwelling house, the maximum is life in jail. We know that life in jail is not very often given for breaking and entering a dwelling house. However it is a symbol of how serious that charge is to be taken.

Regular theft, which is so pervasive in the justice system, is one of the most common offences before the courts. We think that to change the boundary sends the wrong message and undermines the operation of general deterrence.

I would like the parliamentary secretary to address that larger issue rather than the technical issues of looking at the offender and whether they will be able to elect or not to go to the higher court, but to first of all justify what is the problem that he is trying to solve with this provision and how is that going to undermine the operation of general deterrence.

[Russell MacLellan, Liberal, Cape Breton—The Sydneys, NS]

Yes. In fact, Mr. Chairman, we feel just the opposite. This is going to aid the general deterrence because it is going to need a more speedy process of justice and we are going to be able to bring the accused before the courts more quickly.

Also, at the present time a lot of cases where there is more than $1,000 stolen are still brought before the provincial court judges, because it may be a question of proof. How do you know he or she stole goods in the amount of, say, $3,500? We know he or she stole something so we will proceed with the theft under $1,000, or the theft of this particular item, when in fact more was taken. However no one really wants to bother adding to that because they feel that getting it through the provincial court system will be faster, that there will be competency and that justice will be served.

Also, right now with theft, it is the violation of theft. Break and enter is a violation of an individual, not only materially but also a violation psychologically. Anyone who has had their home robbed or any of their possessions stolen feels they have been violated. It does not matter what was taken because that violation is there. The fact is that the feeling of the public against theft is very strong and they want these people brought to justice and punished. In the opinion of the Department of Justice this process can be achieved through these changes, and in fact will be enhanced through these changes.

[The Assistant Deputy Chairman]

Shall the amendment moved by the hon. member for New Westminster-Burnaby carry?

[Some hon. members]

Agreed.

[Some hon. members]

No.

[Some hon. members]

On division.

(Amendment negatived.)

[René Laurin, Bloc, Joliette, QC]

Mr. Chairman, we would like to know whether we are voting on the amendment to the amendment or on the amendment, because we have an amendment moved by members of the Liberal Party and an amendment to the amendment moved by the Reform Party, if I am not mistaken. I would like to know which one we are voting on now.

[The Assistant Deputy Chairman]

There was one amendment, the one moved by the hon. member for New Westminster-Burnaby. Clause 20 is part of the bill. So the question was simply on the amendment standing in the name of the hon. member for New Westminster-Burnaby, which was negatived on division.

Shall clause 20 carry?

[Some hon. members]

Agreed.

(Clause agreed to.)

[The Assistant Deputy Chairman]

In Bill C-42 there are a grand total of 106 clauses. I wonder if I might be able to lump clauses 21 to 106 inclusive, or are there other clauses that members may want to address specifically?

[Some hon. members]

Agreed.

On clauses 21 to 106 inclusive:

[The Assistant Deputy Chairman]

The question is therefore on clauses 21 to 106 inclusive.

Shall clauses 21 to 106 inclusive carry?

[Some hon. members]

Agreed.

[Some hon. members]

On division.

(Clauses 21 to 106 inclusive agreed to.)

(Clause 1 agreed to.)

(Schedule agreed to.)

(Title agreed to.)

(Bill reported, concurred in, read the third time and passed.)