Mr. Speaker, the hon. member for Fraser Valley has presented several amendments to section 335 of the Criminal Code which he claims will create a tougher and more effective law, one that will have a real deterrent effect on joyriding by young people. I would like to commend him for his work in this field.
However, these changes will result in a more draconian law. I would like to outline a few of the changes: a minimum penalty of six months imprisonment; a minimum fine of $1,000, with a maximum of $5,000; a provision for damages to be paid by the offender directly to the victim; a clause which would make the parents of a joyrider, if he or she is a young offender, liable for any fines or damages in certain circumstances.
As responsible parliamentarians we have an obligation to examine any change in the criminal law very carefully to determine whether tougher penalties will be effective and fair. We have a special responsibility to scrutinize any law that would impose additional imprisonment and fines on young people who come into conflict with the law. As we know, joyriding is predominantly a young persons' offence.
The question I ask is this. Is there objective evidence to show that the existing law in section 335 has failed to do the job? In order to answer that question we should examine how the courts have actually used the joyriding section.
In case I am accused of diminishing the importance of this offence, let me state for the record that I do regard joyriding as a very serious offence. In fact, I was a victim of such an offence. I know firsthand.
The involvement of a young person in the appropriation of an automobile is always a significant matter. It is all the more serious because joyriding so often results in personal injury or costly damage to property.
The problem with Bill C-209 is that its drafters have not paid sufficient attention to the way section 335 is used by prosecutors and the courts in relation to other criminal charges, in particular the offences of theft, criminal negligence and the possession of stolen property.
The hon. member suggests that there are a huge number of joyriding incidents but relatively few convictions. I will not debate the numbers but I do recommend that he look at the number of convictions for theft and possession of stolen property at the same time as he analyses the joyriding statistics. He will likely find that joyriding incidents frequently result in more serious charges or charges in addition to joyriding.
Several decades ago Parliament wisely decided that joyriding should be a distinct offence separate from the theft of a motor vehicle. The difference lies in the intention of the person who takes the vehicle. In a theft situation, the thief intends to steal a car for purposes of reselling it. Joyriding, as the name implies, is more often an impulsive act and the offender may take the vehicle for thrills rather than profit.
The Supreme Court of Canada upheld the distinction between theft and joyriding in a 1972 decision, stating that the joyriding offence was created in order to provide a penalty where it may be difficult or impossible to establish the offence of theft. The difference lies in the intent of the taker. The courts have said that if the intent is to merely drive a car and then return it the owner, then that is not theft but rather a separate offence.
These decisions provide the key to understanding how joyriding should be dealt with under the criminal law. If joyriding charges are not laid as often as the hon. member would like, it is because serious joyriding incidents, which result in injury to other persons or damage to the car or to other property, are often prosecuted with a charge of theft or possession of stolen property, perhaps criminal negligence, careless driving or dangerous driving.
An obvious concern arises here. Can someone who steals a car claim that he really intended to return it to the owner and therefore avoid a theft charge? The courts have provided us with the answer. Each case must stand on its own facts. For example, how long did the offenders keep the car? How far did he drive it? Did he make an effort to return it? Did he drive the car recklessly? All the circumstances must be considered.
This is what I am asking the hon. member to ponder. Rather than applying a mandatory minimum jail term in every case, why not give the courts some flexibility in structuring the penalties for the young joyrider in view of all the circumstances of the individual case?
What about the youth who has no previous record? There are so many ways to handle this problem short of sending every young joyrider to prison. A probation order for a first time offender combined with an order of restitution may be quite adequate.
I would also point out that it is unusual to see a custodial term imposed for a first offence of possession for stolen goods. I do not see why we would opt for mandatory minimum of six months jail time for a first offence here.
I also cannot understand why the hon. member wants to take sentencing out of the realm of the Young Offenders Act. The bill says, notwithstanding the Young Offenders Act, the offender is liable to a term of imprisonment. I would point out that he is also liable to imprisonment under the Young Offenders Act. Young offenders can also be forced to pay restitution. The Young Offenders Act provides all the remedies needed in conjunction with a penalty structure of the Criminal Code. Section 3 of the Young Offenders Act sets out 10 principles that apply to the sentencing of youth offenders. I quote the first principle:
Crime prevention is essential to the long-term protection of society and requires addressing the underlying causes of crime by young persons and developing multi-disciplinary approaches to identifying and effectively responding to children and young persons at risk of committing offending behaviour in the future.
These principles should be applied so that all of the circumstances surrounding the offence, including parental involvement, can be considered.
I can see that Bill C-209 would continue to require that young offenders be tried in youth court but I cannot understand why he would want to add a notwithstanding clause that would suddenly take sentencing outside the structure of the Young Offenders Act. I have no objection to prosecutions under section 335. Joyriding is a problem in itself, aside from damage to property or personal injury that may result from it.
In the last session, the government introduced a series of amendments to the Criminal Code in Bill C-17, which is now chapter 18 in the Statutes of Canada, 1997. These amendments included section 335, a change that for some reason is not reflected in the hon. member's bill before us today. The amendment deals with the responsibility of occupants of the vehicle.
Young people who take cars often do so in the company of others and these passengers may be aware of their immunity from prosecution even when they clearly know that the car has been taken without the consent of the owner.
Furthermore, it is often difficult to determine who took the vehicle when several young people are involved. The new law solves this problem by making passengers liable to a charge of joyriding unless they make an effort to leave the vehicle. This amendment shows that the government does take the section of the code very seriously.
Let me give an example of how section 335 has been used. In 1991 in a Saskatchewan case, an offender took a vehicle and claimed that he was going to use it to pull another vehicle out of the mud. However, he made no attempt to restore the vehicle to its owner and the accused appeared to be responsible for the later destruction of the car in a fire. The offender received a conditional discharge combined with 18 months of probation but he was forced to pay restitution to the victim for the loss of the vehicle.
This is an example of how section 335 in combination with the restitution sections in the Criminal Code can be used to benefit the victim where property damage and loss have occurred. The amendment in Bill C-209 is not really necessary.
Let me give a quite different example. This is an Alberta case. The offender admitted to taking the vehicle for purposes of joyriding. He began driving too fast, misjudged a turn and slammed into a trailer parked on the other side of the road. Of what was he convicted? Not joyriding as the offender hoped, but rather dangerous driving, which carries a maximum penalty of five years imprisonment and 10 years if there is personal injury.
Finally, I wish to comment briefly on the second part of the bill which tries to make parents responsible for fines and damages incurred by a young person who is convicted of joyriding.
This idea was examined recently by both the House of Commons committee and a federal-provincial task force on youth justice. Neither group recommended that parents be required, under the Criminal Code, to pay damages for neglecting to exercise due care. The task force did recommend that provinces develop legislation governing the civil recovery from grossly negligent parents for damages or losses arising from the criminal acts of their children.
I understand that Manitoba recently created legislation making parents civilly responsible to a limit of $5,000 where it is proven that the parents bore some responsibility for the offence. In terms of the parents actually participating in an offence, the Criminal Code and the Young Offenders Act already contain offences of aiding and abetting.
For these reasons, I suggest that the amendments of Bill C-209 are not needed and will not improve the capacity of the criminal justice system to deter joyriding.