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.