Mr. Speaker, the Minister of Justice is not supporting Bill C-275, nor am I. In opposing the bill, I want to tell the member opposite that I simply do not agree with him that Bill C-275 is in the category of an ultimate solution to the member's concerns.
Parliament has created in section 252 of the Criminal Code the offence of failing to stop at the scene of an accident with the intent to escape civil or criminal liability. Let me be very clear. I fully support the existing provisions in section 252 of the Criminal Code that are aimed against the pernicious behaviour of leaving the scene of an accident in order to escape liability.
In no way does my opposition to Bill C-275 mean that I condone leaving the scene of an accident to escape civil or criminal liability. The present maximum penalty under section 252 for leaving the scene of an accident is five years imprisonment where the prosecution proceeds by indictment. I note that the procedure for the indictable offence is a more serious procedure than the procedure for a summary conviction offence.
Bill C-275 does not propose to change this maximum penalty of five years. At present, in a case where the fleeing offender knows that a person has died or knows that there is bodily harm and is reckless about whether death ensues and death does occur, the maximum penalty is life imprisonment under the Criminal Code.
Bill C-275 does not propose to change this. I note that life imprisonment is equal to the maximum penalty for manslaughter, criminal negligence causing death, dangerous driving during a police chase causing death, and impaired driving causing death.
In a case where a fleeing offender knows that there is bodily harm, the current maximum penalty is 10 years imprisonment. This maximum penalty is equal to the maximum penalty for criminal negligence causing bodily harm, dangerous driving causing bodily harm, and impaired driving causing bodily harm. Inexplicably, Bill C-275 proposes a new maximum penalty of life imprisonment for the bodily harm situation which equals the maximum penalty for leaving the scene where there is a death.
Not only does this defy the principle that there should be proportionality in the criminal penalties with respect to the harm, this proposal in Bill C-275 would make the maximum penalty for the bodily harm in leaving the scene situation completely at odds with the maximum penalty that Parliament has set for each of the other Criminal Code bodily harm offences that I have just named.
Further, the bill proposes to create a minimum penalty of seven years imprisonment for the offence of leaving the scene of an accident where death is involved, and a minimum penalty of four years imprisonment where bodily harm is involved. I note that the similar offences which I have already mentioned do not carry these seven and four year minimum penalties.
As much as I am concerned about the maximum penalty provision for leaving the scene of an accident in a bodily harm situation and the bill's minimum penalty provisions, Bill C-275 contains an even more alarming proposal. This is the provision that would eliminate the mental element of the offence of leaving the scene of an accident in those cases that are the most serious forms of the offence, namely situations where death and bodily harm results.
Each criminal offence must contain in its definition not only an act, but also a mental element, sometimes referred to as a guilty mind in English or mens rea in Latin. The mental element can be framed in the terms of intention, knowledge or wilfulness. Outside the criminal law we may find offences for which there is liability based only on an act without any mental element, for example, in some regulatory matters.
However, I emphasize again that in criminal matters, an offence must not only have an act, but also a mental element. The more serious the offence and the resulting penalty, the more important it is that the offence contains a mental element.
Bill C-275 turns this fundamental principle of criminal justice upside down. In Bill C-275, the proposal is not to retain the mental element for leaving the scene where there is no injury or death but to eliminate it completely from the more serious cases of resulting injury or death.
I find it absolutely astonishing that the bill proposes that where there is a more serious act and a more serious penalty, there would be no mental element in the definition of the offence. This is beyond belief. One expects to find a mental element and not the complete elimination of the mental element for any criminal offence, let alone the more serious criminal offence.
It is highly likely that if such legislation were enacted by Parliament in the face of all logic, that courts would find that the combination of the disproportionate minimum penalties and the elimination of the mental element would violate the Canadian Charter of Rights and Freedoms, which is an integral part of the Canadian Constitution.
I remind members that the Constitution is the supreme law against which all other laws must be tested. As parliamentarians we must keep in mind that legislative proposals must respect the charter, including its guarantee that no one be deprived of liberty, except in accordance with the principles of fundamental justice.
In my view, it is extremely important to have the offences and penalties that now exist for drivers who leave the scene of an accident with the intent to escape civil or criminal liability, especially where someone is killed or injured.
To the extent that the particular convicted offender will be deterred from repeating the behaviour and to the extent that there will be a general deterrence for others who in the future might contemplate such behaviour, the existing Criminal Code provisions are necessary and appropriate in the context of the charter.
We often hear the claim that the charter protects the wrongdoer. Such rhetoric misses the point. The criminal law is society's strongest sanction against improper and injurious behaviour. Therefore, fundamental principles such as the need for the mental element for a criminal offence protect each of us who might without a guilty mind do something purely accidentally. Without the requirement of a mental element for a criminal offence, the pure accident would be criminalized.
Think for a moment of a driver who leaves the scene of an accident with the intent to get help for an injured person. If the offence is simply leaving and there is no requirement of the mental element of intending to escape liability, the driver who leaves the scene to get help would be committing a criminal offence under the proposed Bill C-275.
Keep in mind that such a person who left the scene under Bill C-275 would be convicted and given a seven year minimum period of imprisonment if an injured person died. The court would not have the discretion to hand down a lesser sentence, no matter how favourable the reason for leaving was or how favourable the personal circumstances of the offender were.
Bill C-275 has the aim of reducing situations where someone leaves the scene of an accident where there is death or bodily harm. However, it is so contrary to the important principles of fundamental justice that it would be cynical to pass Bill C-275 knowing that it will most likely run afoul of the charter.
If members truly believe that fundamental principles of justice are unimportant, then there should be a constitutional amendment to the charter, the fundamental law against which all other laws are tested and not an end run that attacks these fundamental principles by means of an amendment to the Criminal Code.
I am sure that all of us in this House are highly sympathetic to the victims who have been injured and to the surviving family members of victims who have died in accidents where the driver fled from the scene with intent to avoid criminal or civil liability. Such an offender's behaviour is despicable.
Our reaction is to want to do something so that the behaviour will not be repeated by that offender or any other driver. The proposals in Bill C-275 are not that something. The bill simply does not respect the fundamental criminal law principles nor the protection afforded by the charter. Bill C-275 accordingly must be opposed.