Mr. Speaker, I thank you for giving me the opportunity to rise in the House and speak to Bill C-386, An Act to amend the Criminal Code (breaking and entering).
The bill is concise, but it will have a significant and disproportionate impact. How can one ask that the criminal code be amended to include a life sentence for a first offence? This is contrary to existing sentencing standards.
What are the criteria for determining an appropriate sentence? First, the purpose of the sentence should be to protect society. Second, the sentence should also help the accused to reform. Finally, the sentence must be fair to the victim as well as to the accused.
The sentence should be analysed to determine how it will help maintain justice and the peace and be commensurate with the offence. To achieve that, an offender must be able to associate the severity of the sentence with the objectives of denunciation and deterrence, while seeing in it an opportunity for rehabilitation. The victim must see in it an assurance of redress and the knowledge that the accused will admit the harm he has caused.
The Bloc Quebecois is opposed to Bill C-386 because it departs dramatically from the criteria mentioned earlier. By its wording, Bill C-386 sets out to impose a life sentence for a first offence. This is completely at odds with current sentencing standards.
These standards, it must be remembered, remain subject to the principle of proportion. This is the most important principle. There must be a direct and equitable correlation between the seriousness of the offence and the extent of responsibility of the accused.
In other words, a jail sentence must be avoided if there are other less stringent means of redress. Let us remember that the judge must examine all the facts and circumstances. These may be interpreted as aggravating or mitigating.
Based on these standards and on the guiding principle, judges can thus establish a sentence in accordance with clear sentencing guidelines. This bill ignores the experience and knowledge of judges, who are able to evaluate the facts of a particular case and the appropriate measures to take to meet the objectives of denunciation, deterrence and redress.
There are other methods of retribution available to judges, including fines, restitution, and suspended sentences. These are alternative methods to imprisonment that must be considered before imposing a sentence that is not proportional to the offence committed.
The purpose of penalties is to hold the accused accountable and promote their reintegration into the community, while at the same time taking into account the degree of severity of the offence. I fail to see how these objectives are furthered by the wording found in Bill C-386.
According to judges and stakeholders, penalties that are proportional to the severity of the crime help with accountability, because offenders can grasp the impact of their actions and the harm they have caused. This is why we must be careful when sentencing for a first offence.
I mentioned that the judge must take into consideration several factors in sentencing.
Sentencing guidelines protect the community on the one hand and punish wrongful conduct so as to deter potential offenders, with the goal of reintegrating the offender.
On the other hand, the judge must take into consideration the type of offence and its severity. The criminal code normally sets out a maximum sentence for every offence. For some offences, the criminal code sets out minimum sentences, as is the case for impaired driving.
In addition, the judge takes into account all the circumstances of the offence, the manner in which it was committed, whether there was premeditation, whether force or a weapon was used, and whether other people were involved.
The judge also considers the accused's criminal record and repeat offences. Not to be forgotten are the accused's attitude to what he has done, whether he shows remorse.
Once these guidelines have been considered, the judge may then decide on an appropriate sentence. He may consider rehabilitation. The accused will then have an opportunity to become aware of the impact of his actions and will be required to participate in a community rehabilitation program. A fine could be imposed. Finally, the judge could consider jail as a deterrent.
On many occasions, the Supreme Court of Canada has reiterated the objectives underlying sentencing. It did so in R. v. Proulx [2000] 1 S.C.R. 61.
Chief Justice Antonio Lamer went over the criminal code principles in order to make the point that a sentence must be proportional to an offence.
The chief justice stated that the punishment must fit the crime, taking into account the aggravating or attenuating circumstances surrounding the offence. He also stated that, under section 718.2 of the criminal code, the presiding judge must also seek to harmonize sentencing for similar offences or offences committed under similar circumstances.
In addition, subsection 718.2 d ) stipulates that the judge is obliged to examine the possibility of less restrictive sanctions when circumstances justify this, rather than depriving an offender of liberty. Yet in Bill C-386, the complete opposite is being called for.
In the Supreme Court of Canada judgment in R. v. Smith [1987] 1 S.C.R. 1045, what was involved was assessing the proportionality of a sentence and whether the minimum sentence can constitute cruel and unusual punishment. The supreme court established evaluation criteria.
So, the main thing is to determine whether the sentence exceeds what is necessary to attain a penal objective, whether there are appropriate alternatives, and whether it is aimed at social reintegration and rehabilitation.
Judge Dickson felt it was appropriate to examine the object and effects of a law in controlling its content. This stems from R. v. Big M Drug Mart Ltd [1985] 1 S.C.R. 295.
The supreme court has therefore, on several occasions, brought down decisions invalidating provisions which were in violation of section 12 of the charter and did not meet the criteria of justification in section 1 of the charter because of the disproportional impact of the sentence.
This is what is reflected in the wording of Bill C-386, which imposes a sentence of life imprisonment for a first offence. This is in clear contradiction of the objectives set out in the criminal code and the guidelines developed by the courts over the years.
In Big M Drug Mart, the chief justice clearly summed up the criteria for assessing proportionality, stating that first, the measures must be carefully designed to attain the objective in question.
The second criterion addresses the rational link between the means chosen and the least possible effect on rights or freedoms.
The third is a matter of “proportionality between the effects of measures restraining a right or freedom and the objective recognized as being of sufficient importance”.
For all of these reasons, the Bloc Quebecois is not in favour of this bill, particularly where the flagrant lack of proportionality is concerned between the severity of the act and the sentence.