moved that Bill C-41, an act to amend the Criminal Code (sentencing) and other acts in consequence thereof, be read the third time and passed.
Mr. Speaker, Bill C-41, which we debate today at third reading, represents a culmination of 14 years of effort to achieve comprehensive reform in the sentencing process as part of Canadian criminal law.
Since 1983 we have had recommendations for substantial reform in the area of sentencing from a royal commission, from the Law Reform Commission of Canada, from the Canadian Sentencing Commission, and from an all party committee of this House, which as long ago as 1988 unanimously recommended many of the measures that are reflected in the bill that is before Parliament today.
At long last, in Bill C-41 we have action to implement practical changes to reflect the recommendations of such long standing from broad areas of Canadian society, meaningful reform, meaningful improvement in the process of sentencing in the criminal law.
The bill states, for the first time, the purpose and principles of sentencing to be used by the courts in sentencing an offender.
Its statement includes the fundamental purposes of sentencing and the principles the courts are to apply in setting the sentence of adult offenders.
The bill provides for a number of changes to procedure and evidence at the time of sentencing. These changes will make it possible to include in the Criminal Code the practices sought by courts of appeal, proposals set out in previous legislation and the suggestions by the Law Reform Commission.
The bill includes provisions that allow the provinces to establish programs of alternative measures for individuals charged with an offence. Included in the bill at the express request of the provinces, these provisions are based on similar provisions in the Young Offenders Act and are intended to draw on the provinces' experience in developing and administering programs of this type.
Among the fundamental purposes of this bill is to codify and legislate for the first time in Canadian law a statement of the purposes and principles of sentencing.
Until now, as hon. members know, the sentencing process has been guided and determined by principles developed only by the courts. While the common law system has produced cogent statements of those principles by judges across the country, the commissions, the committees and the authorities to which I referred at the outset have all recommended for years that those purposes be legislated by Parliament for the purpose of uniformity.
In this bill Parliament is given the opportunity to declare the key purposes of sentencing, to put before judges a list of factors to be taken into account, to provide direction to encourage uniformity so that the purpose of the process can be properly understood and so that it might be rendered more predictable than it is at present.
What are those purposes and principles? They are spelled out clearly and in plain language in the statute. The sentence would reflect the seriousness of the offence. There would be similar sentences for comparable crimes. Those who contravene the criminal law must face punishment. They should be separated from society where appropriate. Rehabilitation should be one of the objectives to be achieved. Similarly in passing sentence the court should take into account factors that either aggravate or mitigate the sentence such that they are fairly considered in the process.
Let me touch briefly on some of the main elements of Bill C-41 as I believe it improves the sentencing process in place at present.
First of all, let me touch upon the perspective of the victims of crime. In relation to victims, I refer to the changes to section 745 of the code, a section which has achieved some fame in this Chamber as a result of challenges to its continued existence.
That section provides that where someone is serving a sentence with a period of parole ineligibility longer than 15 years, after that period they can ask a court to permit them to apply for parole notwithstanding the extended parole ineligibility. The change in that section contemplated by C-41 would obligate the court on such an application to hear from the family of the victim so that they have an opportunity to have an impact on that process.
Bill C-41 also broadens considerably the rights to restitution in the criminal law so that victims and the rights of victims to compensation become a regular part of the sentencing process. Compensation for victims will now be dealt with as part of the normal process of sentencing rather than requiring special application.
The restitution provisions in Bill C-41 would allow the enforcement of a restitution order for the benefit of the victim in the regular civil courts. The making of a restitution order would in no way limit the right of the victim to sue for damages.
Bill C-41 also improves the present process with respect to the payment of fines when fines are imposed as a penalty in the criminal process. The fact is that today there are too many people taking up space in jails and prisons because of the non-payment of fines. It simply does not make sense to spend more to keep them there than the state would have gained upon the payment of the fine imposed.
This bill ensures that the court will determine in advance of imposing a fine the ability of the offender to pay. It provides that if the person cannot pay, alternatives such as requirements to perform community service will be considered and imposed. It also provides for the use by the provinces of their own mechanisms, since each of them have them in place, to collect fines that the court assesses. It provides that instead of jailing someone for not paying a fine. Provinces may exercise powers to withhold licences or privileges to encourage or require the person to pay what the court has ordered. As a result of all of the measures which I have just summarized, prison will be a last resort for the non-payment of a fine.
Another of the areas in which Bill C-41 achieves improvement has to do with probation as a sentence, a very common sentence in Canadian criminal law. Bill C-41 lays out a process to ensure that the courts have access to more and better information at the time when they are imposing that sentence, information by way of pre-sentence reports which will tell the judges and the courts more about the offender.
Bill C-41 provides for an increase in the penalties for breach of a probation order. It provides for greater clarity and cogency in the conditions which apply to probation.
Another innovation in the bill is the introduction for the first time in the context of adult sentencing of alternative measures. By providing for this instrument, the federal government is responding to requests made by the provinces themselves. Each province will have the right to set up and administer its own process of alternative measures.
For offenders who are before the court for the first time, never before having committed an offence and are facing charges of a
less serious, non-violent nature, the system will provide for taking that person out of the court stream. As long as they acknowledge their wrongdoing, alternative ways of ensuring that they learn the lesson will be established. These measures will free up scarce and valuable court time for the more serious offences where the need is greater.
A separate and different innovation which Bill C-41 introduces is the concept of the conditional sentence. It is a new form of sanction available where the court imposes a jail term of less than two years. It permits the jail term in effect to be served in the community rather than in a prison. This would be done under strict conditions which the court can impose and under close supervision if necessary. In a manner which is less costly to the state and more likely to result in a positive outcome, the court can impose strict conditions. Breach of these will require the offender to show cause and effect why the offender should not then be brought to prison to serve the balance of the sentence in custody.
Finally, Bill C-41 provides for a comprehensive and cogent statement of the rules of evidence and procedure for the sentencing hearing itself. It collects for the first time in one place in a readable and usable fashion, the rules of the sentencing hearing: the burden of proof; the powers of the court to obtain additional information pertinent to the sentencing process; a requirement that judges give reasons for their sentence. In every case society will know what logic or rationale lay behind the penalty imposed. There is also a provision so that we know plainly and clearly what the rules are governing the sentencing process to add greater fairness and greater consistency in the way courts go about doing their business.
Bill C-41 is a broad and comprehensive measure to introduce progressive, sensible and sound changes to the criminal law, to act upon longstanding recommendations made for many years by independent bodies and by a committee of the House, effecting real improvement to this vital part of the criminal justice system.
I commend the House committee for its careful work on the bill. The committee heard from many witnesses. It worked very hard clause by clause examining the bill and all of its measures. I believe the bill was improved considerably as a result of the effort and the care which was taken by the committee.
Just as was the case when I appeared before the committee and as was the case when I spoke in the House at second reading, there is one feature of the bill which dwarfs the others in terms of the attention it has received and the controversy it has created. It is section 718.2 of the bill which deals with aggravating circumstances that the court should take into account in determining the appropriate sentence.
Section 718.2 of the Criminal Code as contemplated by Bill C-41 would provide that one of the principles that govern the sentencing process in the criminal courts should be that a court that imposes a sentence shall also take into consideration the principle that the sentence should be increased or reduced to account for relevant aggravating or mitigating circumstances. Those circumstances may relate to the offence or to the offender. For example, if someone was a first time offender or if someone was a repeat offender, those circumstances would respectively either mitigate or aggravate the sentence the court gives.
The section goes on from that general statement upon which I just elaborated to provide more specifically. It says, without limiting the generality of the statement to which I have just referred, that certain factors shall be deemed to be aggravating circumstances and the court therefore shall take them into consideration. The section provides that evidence that the offence was motivated by bias, prejudice or hate based upon the race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor shall be deemed to be an aggravating circumstance.
Of course this is the section that has attracted the attention of those who criticize the approach. It is important for us first of all to bear in mind just what the section does and how it operates. This has nothing to do with policing or punishing the way people think or the views they hold. It has nothing to do with the freedom of thought or the creation of thought police to govern the attitudes of individuals.
The section is part of a sentencing bill in the Criminal Code to assist the court in determining what the punishment should be when it has already been established in the court that a crime has been committed. All it says is that after it has been proven that a crime has been committed the court should consider aggravating and mitigating circumstances. Where it is proven that the person was motivated in committing the crime by hatred, bias or prejudice, then that shall be taken into account as an aggravating factor.
Among other things the inclusion of this provision in the bill complies with a commitment made by the Liberal Party during the 1993 election campaign. On page 84 of the red book, in a promise that was elaborated upon in specific statements made by the Prime Minister to equality seeking groups, the Liberal Party undertook to amend the criminal law to provide this kind of protection to vulnerable groups who are typically the victims of hate motivated crime.
Beyond that, if one needs further justification for the statement of what one would have thought was simply a sensible proposition, one need only look to the increased incidents of crimes of this type. Every major group among identifiable minorities reports in recent years a troubling and significant increase in hate motivated crime, among them B'nai Brith which has told the Department of Justice that there are now over 40 organized hate groups in Canada. Religious groups and minorities are clearly worried, as well they
might be, that the existence and the activities of these hate groups are undermining the social fabric of Canadian society.
There is further evidence of the rise in such crimes. Police departments across the country have established hate crime units devoted exclusively to investigating and acting on crimes of this nature.
In testimony before the Quebec Human Rights Commission one group referred to the American experience where one in five gay men and one in ten lesbians reported being the victim of aggression and one-third of all respondents said that they had received threats of violence.
Police forces in Toronto and in Ottawa have recently reported that hate crimes based on sexual orientation represent the third largest category of hate related offences.
I suggest to the House that the need for this legislative intervention is clear. We have drafted the section to provide for specific reference to characteristics that are commonly targeted in crimes of this type, specifically referring to race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, and sexual orientation.
Why do we include the list? It has been alleged by some that we have selected certain groups or certain characteristics in order to give special treatment or special protection, that we are conferring special status upon specific groups. It is not the government that has selected these groups for special status. It is not this Minister of Justice who has identified these groups for special treatment. It is the hoodlums and the thugs who have identified them for special treatment. It is the criminals and the punks who go out to find them to beat them up who have selected them for special treatment. It is this Parliament that has the opportunity today to respond to those hoodlums and those thugs by showing maturity and by showing a preparedness to be logical and to do what is required.
The rigour of logic leads us to this approach. The evidence in front of us compels us to act. Common decency requires that we furnish through the criminal law a means of dealing with this thuggery.
If we are speaking of special status perhaps we should remember that if gays and lesbians, for example, have a special status they have a special status to be targeted, to be beaten up. If there are members who care to share that special status I am sure it could be discussed. The only special status that is on that list is vulnerability. The only special rights we are talking about here are the rights to be targeted. The very purpose of this legalisation is to redress that unfairness.
As long ago as 1977 in the Ingram case in the Ontario Court of Appeal the senior appellant courts of the country recognized that targeting someone, attacking them, victimizing them in crime based on a characteristic such as sexual orientation was an aggravating factor to be taken into account in the determination of sentence. This provision merely codifies that altogether sensible rationale and introduces it into the Criminal Code that we might achieve uniformity across the country.
When criminals target another and commit a crime against a person or a person's property based upon race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, or sexual orientation, they have committed a crime not only against the individual. They have committed a crime that has an effect on the entire group.
American laws in states of the United States where such laws exist are commonly called laws against crimes of intimidation because the offender knows that the effect of the act is not only to harm, to frighten or to affect the person who is at the end of the punch or the kick. It is to intimidate every member of that group who is intended to feel more vulnerable the next time they walk down the street. That feature of such a crime distinguishes it and justifies the approach contained in Bill C-41.
We have referred to sexual orientation. We have not found it necessary to define the term because its meaning is clear. Since 1977 the term has been included in human rights legislation in eight provinces and territories in Canada. There has never been any difficulty in interpreting or defining or applying that term as it is found in those provincial and territorial statutes. No question has ever been raised about what it means.
In the gay bashing crimes about which we have heard too much in recent years, the offenders, the thugs and the hoodlums who target people because of their sexual orientation, have no difficulty knowing what they are looking for when they drive downtown on Saturday night hunting for someone to beat up because they think they are gay or they are lesbian.
It should be stressed that the responsibility of parliamentarians in dealing with legislation is to use logic and reason in assessing the legislation's merit. I earnestly hope that we will be spared the observations that Bill C-41 is a gay rights bill, that Bill C-41 has to do with traditional family values in Canada, and that Bill C-41 confers special status for purposes of benefits or any other purpose.
Bill C-41 is a criminal law bill which amends the Criminal Code. It deals not at all with human rights, access to benefits, the right to marry or adopt. It has to do with the sentencing of people who have been proven to have committed crimes. It has to do with determining the nature and extent of the sentence having regard to the societal value of discouraging hate motivated attacks. It
provides an opportunity for Parliament to make a statement that that kind of attack will not be tolerated and that we stand together in condemning hate motivated crime.
I commend the bill to my colleagues and ask them to support it. In the last several days we have received expressions of support for this exact provision from the United Church of Canada, B'nai Brith Canada, the Canadian Jewish Congress, the Federation of Canadian Municipalities, the chief of the Ottawa police force, the chair of the Ottawa-Carleton Regional Police Services Board, the Centre for Research Action on Race Relations, the Urban Alliance on Race Relations, the chief of the metropolitan Toronto police force, the Canadian Association of Chiefs of Police, the mayor of the city of Toronto, and on and on.
These responsible participants in Canadian society perceive the problem that the bill is intended to address and agree on the efficacy of the approach taken in section 718.2. I urge my colleagues to see past the smoke and the disguise of false characterizations, to look at what the bill does and at what the section achieves, and to support the government in these meaningful and important measures to deal with a rising social problem in the country.
As we approach third reading let reason prevail. I ask members of the House in all parties to join with the government in doing something to improve the criminal law in general and in particular to demonstrate a resolve no longer to tolerate hate motivated crime in the country.