Debates of April 11th, 2008

Criminal Code

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I want to thank the member for giving us the opportunity to consider this important legislation. I appreciate the experience of the Moffitt family and how that has influenced the member's decision to bring this forward. I know that it is very significant in all of this.

I would like to ask him, though, if he has other examples of the situation he described, the situation that faced the Moffitt family, other examples that point to the need for this legislation. I think it is often problematic when we find one case. It sounds as if there are very serious problems with the situation the family faced after the death of their son Andy in terms of how the justice system functioned or, in this case, did not function. I wonder if he has other examples that also bring to bear the need for the kinds of changes he is suggesting.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, my colleague asks an excellent question. First, I want to say that one case is one too many, but the fact is that in Canada today we have far more knife killings than we do gun killings. It is important that we set the deterrent. As I said in my presentation, the certainty of consequences is far more important than the potential severity of consequences.

Every day when we look at the newspaper we see that there has been another knife killing. In today's Edmonton Sun there was another story. A person in Winnipeg has been robbed eight times in just one year, seven times with a knife and once with a gun. As for the prevalence of knife crimes in Canada, knives have become the weapon of choice. It is so easy for people to put that knife in their pocket without thinking of the potential consequences. That is what this bill attempts to address.

[Gary Goodyear, Conservative, Cambridge, ON]

Mr. Speaker, I would like to congratulate my hon. friend, who has been speaking of this issue for a long time. My question goes to the definition of “knife”. In my own riding of Cambridge, a drug dealer was hacked to death with a machete and the person who did it got nine months of house arrest under the Liberal justice system.

[Gord Brown, Conservative, Leeds—Grenville, ON]

Mr. Speaker, this does address knives, other sharp objects and other weapons that can be concealed and then used. It is not the concealing of the weapon that makes the crime. It is the use of the weapon that makes the crime.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Mr. Speaker, I express my congratulations to the member opposite for introducing this bill.

Strangely, he has exhorted his colleagues in the House to be non-partisan in their approach and I distinctly heard two of his colleagues asking what I regard as very partisan loaded questions. I have to say that I am sorry I am quickly losing enthusiasm for the substance of the issue here as his colleagues continue to snipe and turn this into a partisan matter. The member laughs, but what is sauce for the goose is sauce for the gander. If the member is going to urge non-partisanship, I hope his colleagues will see it the same way, because this is a private member's bill and it is not going to go too far if the member is going to import partisanship.

I will not waste more time on this, but I will note that the bill is clearly not government policy. If it had been government policy, it could have been made a part of Bill C-2 or one of the other Criminal Code amendment bills that passed through the House earlier in this Parliament.

The bill, as the member has explained, purports to provide more focus in the code on the problem of the use of knives in crimes, but it also travels into the field of corrections and parole, beyond the knife issue. That is taking on a rather large piece of public policy. I know the member sees the need for it, but I am actually in the House here urging some caution as the member attempts to adapt public policy and law to respond to one particular set of circumstances, as sad as they were.

There is hardly a member of the House who has not had to respond to the impacts of a criminal act somewhere across the country and I do not for a moment diminish the kinds of difficulties that there are out there. However, in reality our country has always had crime, and I am probably not wrong in predicting that there will be always be crimes and people who are misguided and that there will be victims. I am not discounting those circumstances, but it is a reality that we have to live with every day in the House.

As for the bill itself, I want to spend a couple of minutes focusing on what the bill tries to do, because the question as to whether I will support it as a private member will hinge on that.

It seems to me that it is not terribly misguided to focus on concealed weapons, but in this particular case, the section we are dealing with is not just about knives. It is about any concealed weapon, any concealed prohibited device or prohibited ammunition. Therefore, let us be fair here in recognizing that the penalties the member urges in amending the code will apply not just to knives but also to prohibited ammunition or a prohibited device that on its own might not be as lethal as a knife could be.

The member has gone to the extent of imposing a regime involving a mandatory minimum sentence. In the first case, it would be a 90 day sentence. However, this is not the first time that members opposite have urged the House to impose mandatory minimum sentences. In fact, we have adopted a statute here in this Parliament that extends mandatory minimum sentencing for a number of firearm offences.

I would have thought that if the government and the Department of Justice felt further tweaking of the sentencing involving mandatory minimum sentences was needed, it would have included these types of provisions in the government bill, but it did not. I am not discounting the sincerity and enthusiasm of the member in proposing this, but I just want to reiterate that it could have been dealt with as a government bill. It was not. There must have been a good reason for that. I will just leave those reasons unanswered.

In providing for sentencing, this House and previous governments going back many years, way beyond 13, have attempted to construct Criminal Code and sentencing provisions which fit the times, in this case our times, the time of the millennium.

The last time the House did this was in about 1995. We thought we had it right. We thought the sentencing provisions suited the times. It was quite a massive revision. Placing these principles in the code was something that had not happened in Canada. These principles had been generated actually by the courts prior to that.

With respect to the principles of sentencing, the objectives include, and there are just six: the denunciation of unlawful conduct; deterrence; separating offenders from society; assisting and rehabilitating offenders; providing reparations for harm done to victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community. There was a special reference to the abuse of children under 18 years of age. There is a fundamental principle which is called proportionality. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. That principle also is articulated in our Constitution.

There are other sentencing principles with respect to things which aggravate an offence. I will not go through the whole list. There are a half dozen of them. Most of them are self-evident, things that aggravate the offence. There are several other principles.

A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. An offender should not be deprived of liberty when less restrictive sanctions may be appropriate in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. There are other provisions.

The point in my reading these is that these are very reasonable, rational provisions and principles that are used every day in our courts by judges who do the sentencing.

One of the members opposite during his remarks referred to this as judicial reform. This is not judicial reform. The judiciary does a very good job by all standards of measurement, domestically or internationally. We are not reforming the judiciary. Anything we do in here could reform the Criminal Code, could reform the way we handle corrections and conditional release, but we are not handling the judicial part. We give under law to our judges the discretion to sentence using the Criminal Code framework and the principles that I have just read.

By most measurements, things are operating fairly well. In the case at hand to which the member responded, and I have to acknowledge and congratulate him for responding to a constituent or constituents in this case, it is just the one case. I know there are hundreds and hundreds of other cases across the country. Bills actually have come through this House which in common parlance have borne the name of a particular victim, without mentioning any. I am not too sure that it is the right way to construct our sentencing and conditional release.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would like to congratulate my colleague from Leeds—Grenville on having taken the initiative to introduce this bill. I am among those who, in all of the caucuses that I have been a part of since being elected, believe that we have to restore the true role of members of Parliament. I would like to see two hours a day allocated to private members' business. That would be a good way to air the demands of our constituents.

I really sympathize with the family our colleague talked about, the Moffitt family. He talked about what happened 10 years ago over Christmas. Unfortunately, we have to make the House aware of fundamental problems with the wording of the bill. I do not think that the Bloc Québécois will be able to support it in its current form.

First, when a bill is introduced, it has to relate to a shared point of view. Our motivation can certainly arise from an example that our fellow citizens have brought to our attention, but we cannot generalize based on one example. It seems to me that members of the Bloc Québécois have often pointed out to the government and all members of the House that adding minimum sentences to bills is not a good solution.

Section 90 of the Criminal Code sets out a maximum 10-year sentence for individuals who commit crimes involving concealed weapons, whether knives or guns. A maximum sentence has been established. Of course, the judge is free to consider the circumstances and the individual's record. In some cases, a minimum sentence might be enough, but in others, there has to be more than a minimum sentence.

We do not think it is a good idea to tie judges' hands. Here is an example from a study that Julian Roberts conducted in 1997 for the Department of Justice. Julian Roberts is a criminal lawyer with the University of Ottawa, but I believe he is now pursuing his career in Great Britain. Regardless, Julian Roberts appeared before the committee when we were studying Bill C-2. He pointed out that mandatory minimum sentences are not deterrents. Quite the contrary. Here is what he said to the parliamentary committee and what he wrote in 1997 when he was working for the Government of Canada's Department of Justice.

In this study done for Justice Canada, he found that, “mandatory prison sentences—which our colleague from Leeds—Grenville is proposing—had been introduced by many western countries.” He gave examples such as Australia, New Zealand and the United States. He continued by saying, “the studies that reviewed the impact of those laws showed variable results in terms of the prison population and no discernable effect on the crime rate.”

There is a reason for that. First, people do not read the Criminal Code before they commit a crime. Second, when there are mandatory minimum sentences, crown attorneys and defence attorneys start a whole round of negotiation. That negotiation often results in plea bargains in order to avoid mandatory minimum sentences.

The realities I am speaking of are well documented. It is not true that we are giving our constituents accurate information by leading them to believe that by applying a mandatory minimum sentence for an offence we will be living in safer communities.

We would prefer that the bill did not refer to mandatory minimum sentences, but rather establish a maximum sentence, as set out in the Criminal Code.

Subsection 90(1) of the Criminal Code stipulates that every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed. That person could be found guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, if that person is criminally prosecuted, or found guilty of an offence punishable on summary conviction.

Provisions already exist in the Criminal Code and there is no reason to think that judges faced with the reality described by our colleague will not apply the Criminal Code. If the sentence provided or issued by a judge is not satisfactory, there is an appeal process. That is what the crown or defence attorneys must do.

Therefore, the Bloc Québécois does not support bills that set out mandatory minimum sentences for offences. I think that our NDP colleague's question deserves due consideration. He asked our colleague to provide other examples. Of course, we all know of incidents involving knives or guns. But there are provisions in the Criminal Code, and we should use them.

As an aside, rising in the House to condemn gun crimes, while allowing guns to circulate freely and criticizing the public gun registry, is very inconsistent. When law enforcement officials, peace agents or police officers have to intervene, it is useful for them to know whether there are firearms in the house in question. This government wants to dismantle the public gun registry and has indeed dismantled much of it. I think we should all view that as an inconsistency.

Having said that, we support two other aspects of our colleague's bill. The Bloc Québécois made proposals in June 2007 and I will come back to that if I have the time.

Since I only have two minutes left, I will continue by saying that in considering the issue of eligibility for parole, the Bloc Québécois is in favour of the idea that we must consider the interests of victims and provide a forum for them. This principle must be weighed against many others, but we believe that it is worthwhile.

The Bloc Québécois is also in favour of the idea that, when a judge determines a sentence, the amount of time spent in custody will be taken into consideration. We are certainly in favour of that.

In fact last June the Bloc Québécois presented ten or so proposals to reform our justice system. We were concerned with, amongst others, section 719 of the Criminal Code, under which a judge, before sentencing, may subtract two days from the final sentence for each day in custody before the trial began.

We believe that in some cases this could lead to an abuse of the system. That could be difficult for our citizens to understand. I myself have had a bill written that would allow the proposals presented by the Bloc Québécois last June to be submitted to the House. I still have to decide if I will introduce this bill or not, but the Bloc Québécois is in favour of the principle.

And that is my input on the bill. I wish my colleague the best of luck, while warning him against his magical thinking on minimum mandatory sentences.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, I am pleased to have this opportunity to speak in the debate on Bill C-393, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (punishment and hearing), introduced by the member for Leeds—Grenville,

I want to begin by speaking about the example he gave as the prime motivation behind the changes he has introduced and the experience of the Moffitt family from his community. I appreciate the difficulty in which this kind of situation places a family.

Thirty years ago this fall, a close friend of mine died as a result of a knife attack. I think he was stabbed 39 times. No one was ever charged in that crime. I remember being at home watching the TV news and seeing the report. That is how I found out about his death.

Duncan Robinson was my friend. The relationship probably was not as close as a son or brother, but that affected me profoundly and still does to this day, when I remember what happened to him back in 1978. No one was ever charged in that crime so there has never been that kind of resolution to the situation. I have often thought about what happened.

I remember walking the streets of Toronto not long after that. There had been an artist rendering of a potential suspect. As I walked down the street a number of times, I thought I saw somebody who looked vaguely familiar to that drawing. I sometimes even followed someone for a few blocks to see if I could get another look at the person, never being able to make that kind of identification.

Therefore, I have never had the experience of having to sit through a trial for a loved one who was murdered. I do not know how my views of our justice system might have been changed on the way it worked or did not work.

I do know the murder of my friend Duncan was a major motivation in my political involvement. The situation that I saw surrounding his death led to so many questions about how we perceived the place of citizens, how we dealt with crime, how we reported crime in the media, how the police characterized their investigations and how the church dealt with my friend's death.

I had so many questions about how it had all happened. Because I identified so many serious problems as a result of that, I decided I could not remain silent any more and became very politically involved to try to address the social conditions I saw surrounding my friend's death.

As I say, had I the experience of seeing the matter go to trial, my interest in the justice system and the judicial process may have been different, but I chose to work on the social conditions surrounding my friend's death.

I appreciate that the Moffitt family has chosen to be politically involved and to raise the concerns and shortcomings they experienced, as outlined by the member Leeds—Grenville. I believe those are all serious questions that should be asked of legislators and of our judicial system.

However, I have some serious questions about the solutions the member has proposed in his bill. Not unlike my colleague who spoke previously, I have serious concerns about the use of mandatory minimum sentences. I also believe they have not been proven to be effective in reducing crime. I do not believe they make us safer, as citizens, from this kind of crime, from any kind of crime for that matter.

I believe in the experience of many jurisdictions in the United States for example. They are undoing that kind of legislation because it has been shown not to be effective in reducing crime. In fact, they may create other problems related to lengthy imprisonments of people, where there is not any hope for reintegration into the community successfully.

Therefore, I have serious questions about measures that would impose a mandatory minimum sentence. It is not something I easily would support and, in fact, I have not supported it in this chamber. I am also concerned about measures that would call into question conditional release. That is an important part of our judicial system, justice system and correction system.

Conditional release has served us well for the most part. That does not mean every conditional release has gone well, that there have not been problems with it. In any system we design there will be problems. There will be specific instances. That does not mean we do not take those problems seriously when they crop up, but I believe every system will have its shortcomings.

We are served well by conditional release. Release into the community, with specific conditions and supervision, is an important step in reintegrating an offender back into the community. Also, the way the community takes responsibility for the integration is also an important feature of our justice system.

Credit for pretrial custody is important. It is a major impetus to ensure timeliness in our justice system. To incarcerate people prior to a trial, prior to their conviction, should be taken very seriously. That needs to be recognized in our justice system. Again, the specific case raises some particular questions about that, questions that deserve an answer. However, generally the principle of credit for pretrial custody is very important.

I also believe judicial discretion is important in our system. This is one of the reasons why I have a difficulty with mandatory minimums. I agree there should be clear indications from Parliament, from legislators about what appropriate sentencing parameters would be for particular crimes. However, the people we ask to hear evidence, to make judgments on the situations of the people involved in crimes should have some discretion in how they mete out justice on our behalf. Judges do that responsibly. They take their role in that very seriously and they make very responsible decisions.

Again, that does not mean mistakes are not made. That does not mean there are exceptions to the rule where things have not worked out probably the way everyone involved would have liked them to have worked out. For the most part, this is exercised appropriately in our society and it should remain a feature of our justice system.

I want there to be a point in our justice system where there is the ability to exercise some humanity and to hear the particulars of the case and to respond to the specific situation in which those people are involved. We are well-served by judges who on our behalf exercise that humanity. I also have concerns about limiting judicial discretion.

There are a lot of reasons to be very concerned about knife crime in our society. We know that is a significant problem in so many places. I do not want for a second to dismiss the concern about knife crime and the tragedies and problems that causes in our communities. However, we need to seriously consider not just crime punishment measures, but also measures that seek to prevent crime in the first place, to prevent those situations from happening.

We have heard that youth crime is on the increase. We have to put some programs in place that specifically try to address this issue. I am not sure that increasing punishment for crime is going to effect that kind of change. We know increased punishments do not serve as a deterrent for crime, that it is a punishment measure and is something completely different from deterrence and from crime prevention. We need to put more effort into those areas.

I can commit on behalf of the NDP that our justice critic will carefully examine this legislation, that it is a measure we believe should be taken seriously. We may not always agree with the solution, but we believe this is an important issue about which Canadians are concerned. Clearly the member for Leeds—Grenville has put forward a very reasoned argument for this kind of legislation. We know the Moffitt family is very concerned to see this matter addressed.

For our part, we will ensure that we look carefully at the implications of the legislation. We will look carefully at the proposed solutions. We will look carefully to see that the solution proposed actually does the job that the bill hopes to do, which is to make us safer, to ensure that crime is appropriately addressed in our society, that punishment is appropriate and that our justice system works effectively to keep us all safe. We can safely make the pledge to ensure it takes place.

[Dean Del Mastro, Conservative, Peterborough, ON]

Mr. Speaker, it is a distinct honour and privilege to speak today to Bill C-393, a bill introduced by the hon. member for Leeds—Grenville, my friend and colleague.

As the summary of the bill indicates, Bill C-393 proposes to increase the penalty for the commission of an offence with a concealed weapon to ensure that victims' interests are considered during the conditional release process and to ensure that the sentence imposed on a convicted offender is only reduced by the actual time spent in pretrial custody.

I propose to limit my speech today to the bill's proposals addressing the Criminal Code, penalties for section 90, carrying a concealed weapon, and section 236, manslaughter, as well as for credit for pre-sentence custody.

Bill C-393 proposes to amend the Criminal Code to provide new mandatory minimum sentences for imprisonment for certain weapon related offences.

Currently, section 90, which makes it an offence to carry a concealed weapon unless authorized under federal legislation, carries a maximum penalty of five years imprisonment for an indictable offence and a maximum penalty of six months imprisonment for a summary conviction offence.

Bill C-393 proposes to amend section 90 to provide a minimum penalty of 90 days imprisonment on a first offence of carrying a concealed weapon and one year imprisonment on a second or subsequent offence. For this offence it also proposes to reduce the maximum penalty from the current five years to five years less a day.

Bill C-393 also proposes to amend section 236 of the Criminal Code, which is the manslaughter provision. Currently, section 236 provides the maximum penalty of life imprisonment and, where a firearm is used, it also provides the minimum punishment of four years imprisonment.

Bill C-393 proposes that a minimum penalty of four years imprisonment also applies for manslaughter where the person uses, in the commission of an offence against an unarmed victim, a knife that the person concealed for the purpose of committing the offence. Upon conviction for this offence, it also proposes that the parole and eligibility period be set at one-half of the sentence instead of the standard one-third, or 10 years, whichever is less.

Not only does Bill C-393 propose to introduce mandatory minimum penalties for carrying a concealed weapon and for manslaughter where a knife is used, it seeks to make sentences for carrying a concealed weapon consecutive to sentences imposed in connection with the same event.

Consecutive sentences or sentences that are served one after another are normally imposed for multiple offences arising out of separate criminal transactions. However, when multiple offences arise out of the same event or a single transaction, generally the sentences are imposed to be served concurrently, meaning at the same time. This would not be the first time that an exemption to the single transaction rule would be introduced in the Criminal Code.

Currently, a sentence imposed for using a firearm in the commission of an indictable offence, as well as certain criminal organization and terrorism offences, must be served consecutively to sentences imposed in connection with the same events.

Bill C-393 also proposes to make minimum penalties for carrying a concealed weapon consecutive to any punishment imposed for an underlying offence or to a sentence already being served.

When imposing mandatory consecutive sentences, judges must consider the sentencing principle set out in section 718 to 718.2 of the Criminal Code, in particular, the principles of proportionality which require that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The principle of totality provides, where consecutive sentences are imposed, that the combined sentence should not be unduly long or harsh. These principles would still apply to the new mandatory consecutive sentences proposed by Bill C-393 for section 90 offences.

Bill C-393 also proposes to limit the amount of credit that can be given to an accused for the time spent in custody prior to sentencing. We just heard an hon. colleague from the NDP talk about pre-sentence custody. He talked about it as an impetus for the justice system to move. However, what we currently see, which happens all too often and we need to work toward repairing, is a system where offenders are encouraged to spend time in pretrial custody so that they can shorten their sentence, a sentence that is being given as a measure of justice. That is unacceptable to Canadians.

Under the current legislative system, an accused not granted bail under section 515 of the Criminal Code is held in custody on remand awaiting trial and sentencing. Bail can be denied when it is necessary to ensure that the accused will not leave the court's jurisdiction, referred to as flight risk, for public safety reasons when the justice of the peace or judge presiding over the bail hearings finds that there is a substantial likelihood that the accused will commit further offences if released into the community, and when it is also necessary in order to maintain confidence in the administration of justice.

The Criminal Code does not presently prescribe a mathematical formula for taking into account time spent in custody awaiting trial. Subsection 719(3) of the Criminal Code simply states that a court may take time spent in pre-sentence custody into account in determining a fit sentence.

As a result, courts typically credit 2:1 in pre-sentencing custody because of the lack of programming or activities for inmates in remand, the fact that statutory provisions for parole and remission do not take into account time spent in custody before trial and because of overcrowding in correctional institutions.

Under a typical 2:1 credit regime where an offender serves nine months in pre-sentencing custody and is then sentenced to four years of imprisonment, courts will impose a sentence of two and a half years after crediting the offender with the time in pre-sentence custody. That is four years less eighteen months.

Courts have departed from the typical credit of 2:1 for pre-sentencing custody in certain circumstances. Courts have applied a ratio of less than 2:1 where the remand conditions are acceptable and programming is available to the accused.

Courts will also grant less than 2:1 credit where the offender is unlikely to obtain early parole because of his or her incarceration history, where the offender was remanded because of repeatedly breaching bail, or where the court is satisfied the offender deliberately chose to stay in remand in order to have a more lenient sentence.

On the other hand, there have been some isolated incidents where courts will credit more than the typical two days for each day in remand. That is right, more than two days. This is the case where the conditions of detention have been particularly egregious.

For instance, in 2003, courts were granting 3:1 credit to offenders who had been remanded at the pre-Confederation Toronto Don jail because it was operating above its maximum capacity, which resulted in double and even triple bunking of inmates. Some of them contracted tuberculosis as a result of the conditions.

Bill C-393 would limit the credit for time spent in custody for sentencing in all cases to a ratio of 1:1 and would disallow credit for individuals remanded because of their previous convictions, or as a result of a review or revocation of bail.

This is where justice re-enters the equation. This is where families are truly the victims. What concerns me is when we go through the process of the justice system, we lose track of who the victims really are. The victim is the victim of the crime. The victims are the family and friends of the victim of that crime. It seems too often in this society we start to believe that the victim is the perpetrator of the crime. When we award 3:1 credit for pretrial custody, the families, the victim, society in general look at it and ask where is the justice? When we look at mandatory minimum sentences and we say that there is no evidence that this is a deterrent, first, I disagree with that argument. There is empirical evidence that proves it is a deterrent. Second, I say to those individuals who make that argument, what about justice? What about what is right? What about what is fair? What about the victims, the real victims, the people who have to go on and live their lives knowing that the person who perpetrated a heinous crime was given a light sentence?

The person was given a light sentence, not because what the offender did was okay, not because society says it is okay, and in fact society says exactly the opposite. The person was given a light sentence because the justice system is operating with pretrial custody credits of 2:1 and 3:1 and because sentencing guidelines are not strict enough to ensure that justice is served and that the victims can leave the court and know that what happened to their loved one meant enough to society that there is going to be a real penalty when those crimes are committed.

I support this bill wholeheartedly.

[The Acting Speaker, Royal Galipeau]

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the order paper.

It being 2:30 p.m., this House stands adjourned until next Monday at 11 a.m. pursuant to Standing Order 24(1).

(The House adjourned at 2:30 p.m.)