Mr. Speaker, I am pleased to take part in the debate on this private member's bill, Bill C-393, an act to amend the Criminal Code in relation to the offence of break and enter.
The government could not be more serious about its role in ensuring the protection of the public and providing for a fair and effective criminal justice system. In recognition of this fundamental and essential responsibility, all aspects of the system are under constant and rigorous review by the government.
However, careful consideration of the bill before us reveals that although well intended, the proposal would not render the criminal justice system any more effective, nor would it serve to further the protection of the public.
The stated purpose of the bill is to amend the Criminal Code to provide for the imposition of a mandatory minimum period of imprisonment of two years upon a second or subsequent conviction for the offence of breaking and entering, where the offence was committed in relation to a dwelling house.
I am certain that all members of the House share the concerns of the hon. member for Calgary East, which motivated him to introduce Bill C-393, and sincerely empathize with the victims of the offence of breaking and entering. Even those who have not been personally affected by an offence of this nature are capable of imagining the feelings of loss, violation and fear that victims suffer as the result of what is technically categorized as a property offence. This is a crime that can severely affect a victim's basic sense of security.
The existing provisions of the Criminal Code already clearly reflect the government's view of the gravity of the crime of breaking and entering and its effect on victims. Indeed, the view is significantly reflected by the fact that subsection 348(1)(d) of the Criminal Code provides for a maximum penalty of life imprisonment. It can hardly be said that the penalty for this offence is insufficient when it is the most severe sentence available under criminal law.
The hon. member for Calgary East now proposes to impose a mandatory minimum period of imprisonment of two years for those convicted of a second or subsequent conviction for the offence of breaking and entering where the offence was committed in relation to a dwelling house.
However, mandatory minimum sentences have not been shown to have a positive impact on crime rates in the great majority of cases. In fact, mandatory minimums are completely contrary to the notion of effective corrections, which relies on individualized assessment of risk and needs and to the basic statutory principles of sentencing. The unintended side effect of mandatory minimum sentences includes increased federal incarceration rates, associated increases in costs, system dysfunction and reduced safety and increased disparity.
Limiting judicial discretion by providing for the imposition of the mandatory minimum sentence for an offence can be seen as inconsistent with section 718.1 of the Criminal Code. This important section provides that every “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. In other words, justice is best served when the judiciary has the necessary discretion to determine which sentence best fits the particular crime and offender.
As well, paragraph 718.2(d) of the code states that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”. A key element of effective sentencing and corrections is distinguishing between offenders who need to be separated from society and those who can be safely and better managed in the community. Reducing or removing discretion makes the criminal justice system more arbitrary and expends resources unnecessarily on incarceration when other measures can be less expensive and more effective.
In the United States, there is now a movement away from strict sentencing guidelines and mandatory minimum sentences. This movement includes Justice Kennedy of the U.S. Supreme Court and has even led several noted jurists to resign from the bench.
Justice Kennedy has stated:
I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust.
As the mandatory minimum penalty proposed by the bill before the House today is two years, this would result in virtually all individuals convicted of breaking and entering in relation to a dwelling house being incarcerated in federal penitentiaries as opposed to provincial facilities, where the majority is now incarcerated. This could result in offenders being placed in correctional facilities that are not suited to their needs and the risk they pose to society.
The proposal submitted by the hon. member for Calgary East is apparently motivated in part by his concern about criminal acts known as home invasions, a concern shared by all members of the House. Home invasion crimes have been the subject of much analysis and consultation by the Department of Justice. This matter was addressed as part of Bill C-15A, which received royal assent on June 4, 2002.
As a result of that legislation, the Criminal Code now provides that home invasion is an aggravating factor in sentencing for certain offences. A court sentencing a person for unlawful confinement, robbery, extortion or break and enter would have to consider it an aggravating circumstance that the offence was committed in an occupied dwelling where the offender was either aware that it was occupied or was reckless in this regard, and where he or she used violence or threats of violence against a person or property. In other words, the presence of any of these factors would justify the imposition of a harsher sentence.
Recent court judgments indicate that the judiciary is taking heed of this important amendment to the Criminal Code and is indeed imposing more serious sentences in home invasion cases. For example, soon after this amendment came into force, the British Columbia Court of Appeal upheld a ten year sentence in a home invasion case. The hon. member read a letter from someone saying that the most severe penalty they had heard of was three years, but here is one for ten years.
Honourable Mr. Justice Hall, speaking for the court, said it must be made clear that those who engage in planned home invasions will, upon conviction, face significant penalties. Justice Hall suggested that a sentence in the range of eight to twelve years should be generally considered appropriate in this class of case.
Similarly, in June 2003, the New Brunswick Provincial Court sentenced an offender to seven years' imprisonment in relation to a home invasion. The trial judge stated that a lengthy sentence was necessary in light of the severity of the offence.
The application of the fundamental principles of sentencing and the taking into account of mitigating and aggravating factors allow the courts to arrive at fit sentences such as these. This is the way sentence determination should be carried out, not through the mechanical process proposed in Bill C-393.
Although the hon. member is well intentioned, the proposal in the bill would make the justice system more arbitrary, fetter judicial discretion, and increase federal incarceration costs. Equally important, it would not improve the protection of society.
The government is fully committed to improving public protection. This will continue to be a key priority of the government. However, Bill C-393 falls short of this important objective and therefore, in our opinion, should not be supported.