John Maloney

[Petitions, February 7th, 1997]

Mr. Speaker, I have three petitions asking that the national highway system upgrading be made possible through government measures.

[Criminal Code, December 3rd, 1996]

Mr. Speaker, I am pleased to have the opportunity tonight to take part in this debate on Bill C-321, an act to amend the Criminal Code and the Corrections and Conditional Release Act, cumulative sentences.

I congratulate the hon. member for Mississauga East for initiative and persistence in bringing this important question to the attention of the House once again.

The previous bill, Bill C-274, was debated in this Chamber on June 4 of this year. The subject bill has two clauses. The first would require judges to impose a consecutive sentence on a person convicted of sexual assault and another offence arising out of the same event or series of events or where the person is already serving another sentence at the time.

The second clause would amend section 120 of the Corrections and Conditional Release Act by requiring offenders sentenced for first and second degree murder to serve their full parole ineligibility period on that sentence plus one-third or a maximum of seven years, whichever is less, for an offence arising out of the same event or series of events.

For an offender already serving a sentence, when a sentence for murder is imposed he or she would serve one-third or seven years of that sentence. Offenders would be required to serve consecutively all of the parole ineligibility periods for sentences for multiple first and second degree murder convictions not arising out of the same series of events.

The area of concurrent and consecutive sentences can be a confusing one. The power to impose a consecutive sentence must be found in some federal enactment. Section 718.3(4) of the Criminal Code discusses the circumstances where judge may direct that terms of imprisonment be served one after the other, that is consecutively.

The code generally states that this may be done in the following circumstances: where a person already serving a sentence is convicted for a new offence and receives a sentence of imprisonment; where both a fine and imprisonment are imposed, any default time for non-payment may be consecutive; where a person is convicted of more than one offence in the same court at the same sitting and terms of imprisonment for more than one fine are specified, terms of imprisonment for the respective offences are imposed, or a combination of imprisonment and fines for separate offences.

Over the years jurisprudence has developed in this area and some principles have become clear. Where there is no relationship between the separate commissions of criminal offences the court should, bearing in mind the total term, impose consecutive sentences. A second crime while in flight from a first crime should be punished with a consecutive sentence. Where there are a number of different offences committed within a short period of time, the offences should be grouped in categories and concurrent sentences imposed in respect of each offence in the same category, but consecutive to those imposed in respect of the other categories, again bearing in mind that the total term should not be excessive.

Section 149.1 of the code provides that sentences for escape from custody shall be served concurrently with time being served or, if the court so orders, consecutively. Consecutive sentences are usually imposed as a deterrent, special and general to escape.

Perhaps the distinction between concurrent and consecutive sentences is best summarized in the words of the 1987 report of the Canadian Sentencing Commission: "Concurrent sentences imposed for multiple offences serve two principal functions. First, they permit the court to give proportionate sentences for related offences without disturbing the overall length of the total sentences imposed. Thus they counter any need to reduce sentencing dispositions for individual offences in order to achieve an overall just result. Second, concurrent sentences all serve a denunciatory function since their use denounces criminal conduct without increasing the overall sentence".

Generally concurrent sentences are imposed for multiple offences which arise out of one continuous criminal act or single transgression. These specific examples respecting the use of concurrent sentences cited by the commission are as follows: where an accused is convicted both of conspiracy to commit an offence and the substantive offence, concurrent sentences should be given; where goods from one theft are found in the accused's possession at different times, only one transaction is really involved and concurrent sentences should be imposed; while a sentence consecutive to a life term cannot be imposed because it is an absurdity, there is no prohibition against imposing several concurrent life sentences or other sentences concurrent to life.

The sentencing commission also pointed out that the use of consecutive sentences has been justified on the basis of a number of sentencing principles. One such principle is deterrence; that is, consecutive sentences should be used to discourage criminal activity in certain circumstances, for example, for an offender who commits an offence while out on bail. Consecutive sentences have also been justified on the basis of their denunciatory effect and their contribution to the overall protection of the public.

As a general rule, consecutive sentences are imposed for multiple offences which arise out of separate criminal transactions. They thus would be imposed for a string of offence, situations where, again in the words of the Canadian Sentencing Commission, several offences arising out of separate transactions are disposed of before the same court at the same time. For example, the court may decide to impose consecutive sentences where the offender is being sentenced at one time for breaking and entering a dwelling house, robbery and assault, all of which were committed on different days.

Parliament has recently dealt with the issue of consecutive sentences in chapter 22 of the Statutes of Canada, formerly Bill C-41, which came into force on September 3 of this year. Section 718.3(4)(a) confirms that a consecutive sentence may be imposed where the accused is convicted while under sentence for another offence. This deals with the second part of the first clause of Bill C-321.

Section 718.3(4)(c)(ii) allows a court to impose a consecutive sentence where an accused is convicted of more than one offence by that court. This would deal with the situation contemplated in the first part of clause 1 of the bill.

I realize that the exercise of this power is discretionary and not mandatory, as would be the case were this bill to be approved. The approach in Canada to date is not to fetter that discretion but to allow judges to balance all the factors before them.

I would also draw the attention of the House to section 7l8.2(c) of the Criminal Code which confirms the totality principle developed in the case law that where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh.

With respect to clause 2 of the bill, I am informed that the case law is clear that a fixed sentence cannot be made consecutive to a sentence of life imprisonment and that any sentence imposed after a sentence of life imprisonment has been imposed can only be concurrent to it. The authority for that is the Crown v. Sinclair for a 1972 report on Canadian criminal cases.

A life sentence is just that, a life sentence. The convicted person may get parole but will continue to be subject to the life sentence literally for the rest of his life and may be reincarcerated after having been released on parole if the person does not comply with the conditions of release.

Accordingly, having consecutive life sentences is, to some extent, a contradiction in terms. However, the fact that numerous life sentences have been imposed on someone is taken into account in the decision to grant parole or not; a very important consideration.

Let me conclude my remarks by mentioning some non-legal considerations of interest. Few Canadians realize that we incarcerate offenders in this country at a rate far higher than most countries in the western world.

According to international statistics compiled by the Council of Europe, Canada's incarceration rate of 130 inmates per 100,000 total population is fourth in the democratic world after the United States, Russia and South Africa. We are well ahead of our European and Australian trading partners. Let me give the House a few examples. The United Kingdom rate is 92 per 100,000; Australia, 85; Germany, 81; Norway, 60; Holland, 51.

When federal, provincial and territorial ministers met in Victoria in January 1995 an item for discussion was the rapid and relentless growth of correctional workloads, particularly prison populations, that all jurisdictions are experiencing.

From 1989 to 1994-95 the federal penitentiary population grew by 22 per cent and provincial prison populations grew by 12 per cent on average.

Notwithstanding a decline in the reported crime rate over the past three years, there are indications that federally there have been fewer conditional releases granted and more revocations of conditional release resulting in more time being served by more offenders. In addition, there has been significant growth in the proportion of offenders serving sentences for violent offences, including homicide.

At the provincial and territorial levels of the system more custodial sentences are being given and for longer periods of time. There has been significant growth in charges for sexual and other assaults.

Among the reasons for the increased offender population are more challenging offenders, such as sex offenders and violent offenders, growing accumulation of lifers in the inmate population, growing use of Corrections and Conditional Release Act detention provisions, fewer offenders on conditional release, new and harsher measures for more serious offences such as the four year minimum sentences for use of firearms.

Correctional Services Canada now double bunks approximately 25 per cent of inmates, and concern about the high rate of incarceration and double bunking has been expressed by the correctional investigator, the auditor general and other interested parties.

Both the Solicitor General of Canada and the Minister of Justice have spoken publicly about the need to continue to work with the provinces and territories to develop strategies to contain the rate of growth of the inmate population. We must do this but we must also balance this with the protection of the public.

I do have concerns that Bill C-321 would contribute further to this correctional overpopulation. I question whether we wish to follow the American example of building more prisons, often at the cost of underfunding health, education and social programs. This is

a sincere concern. The record shows that all levels of government are cutting back where the need is most: health, education and social programs.

The American experience suggests that a more punitive approach to criminal behaviour does not, of itself, increase public protection or reduce levels of crime. Between 1984 and 1989 the American crime rate rose by 14 per cent but the prison population increased by 58 per cent. Today more than 1.5 million Americans are incarcerated. In fact, there are more Americans under criminal justice system supervision than there are U.S. college students.

With respect, I do not think we have much that is useful to learn from criminal justice policy in the United States and, in particular, from its use of consecutive life sentences.

[Taxation, November 27th, 1996]

Mr. Speaker, I am very concerned over the inequitable tax treatment of Canadian resident recipients of U.S. social security benefits. This is an important issue to many people in my riding of Erie and throughout the country.

It is imperative that the federal government find some way of giving relief to those lower income Canadians who are now subject to a 25.5 per cent withholding tax on their U.S. benefits but not entitled to a tax refund for overpayments.

This policy unfairly penalizes Canadian residents and most, as seniors, at a time in their lives when they can ill afford it. Indeed, many are trying to survive on less than subsistence incomes.

I appreciate that amendments to international treaties require lengthy and laborious negotiations. Nonetheless I implore the finance minister and the government to make every effort to bring needed change to this unfair U.S. tax policy.

The 1996 tax year is rapidly drawing to a close. It is imperative that affected Canadian residents receive confirmation of tax relief. They require this now.

[Program Cost Declaration Act, November 6th, 1996]

Mr. Speaker, I am honoured to rise today in this House to speak in favour of Bill C-214 put forth by my hon. colleague from Durham.

Bill C-214 is an act to provide for improved information on the cost of proposed government programs. We as parliamentarians need to rethink from time to time not only what we do but also how we do it. Bill C-214 will help us to achieve this.

This bill will require the estimated annual cost and the cost per capita of every new government program to be published as soon as the bill that authorizes it is introduced into Parliament, or the regulation that implements it is issued. The auditor general's opinion on the estimate is also to be published. It also requires the cost and the cost per capita to be displayed in any place where the program is to be delivered to the public.

When a new program is to be funded from public money, the minister responsible must make a declaration of the estimated annual cost of the program in each of the first five years of its intended operation, expressed as a total cost and as a cost per capita for every resident of Canada. This declaration must be made in the House of Commons if it is sitting, in the Canada Gazette , in writing to every member of Parliament and in a media statement.

The Auditor General of Canada will provide an opinion that the method of calculation on the cost referred to in this declaration is valid and that the cost is a good estimate. If the auditor general dissents from that opinion given by the minister, then the reasons for the dissent shall be made public by the responsible minister. The minister shall also ensure that the program costs are clearly displayed at every place where the program is delivered and in every document pertaining to the program.

This bill has the support of the Certified General Accountants Association of Ontario, the Alberta Taxpayers Association, the Chartered Association of Certified Accountants, the Society of Management Accountants of New Brunswick and Prince Edward Island and the Certified General Accountants of New Brunswick. It is obvious that this bill is endorsed from coast to coast and for very good reason.

Members of Parliament must be the stewards of the taxpayers' dollars and MPs often cannot understand the financial impact of legislation for the simple reason that it may not be presented in a clear, concise manner. I believe that Bill C-214 will change this.

Over the years the information provided to parliamentarians has become very technical and lengthy and deals with mainly short term issues. It does not sufficiently help parliamentarians understand the relationships between the resources we are approving and the financial impact they would have on Canadians and the results actually achieved by the program if applicable in previous years.

No one will dispute that governments should be accountable to the Canadian taxpayers. In fact it is the foundation of our parliamentary system of government. The problem with our current way of doing business is the timing of that accountability.

Most government accountability options focus on after the fact methodologies such as evaluation systems. These initiatives provide for reporting long after the tax dollars have been spent. To me,

this does not make sense and is questionable at best. The auditor general also provides Parliament with that same hindsight analysis.

We must look at the issue of control and the understanding of cost before moneys are spent. Is this not a logical extenuation of accountability to the client or taxpayers? Our constituents deserve nothing less.

Each piece of legislation should have attached to it the estimated impact on government expenditures. Indeed it is a logical extension of the current expenditures management system, one which must involve the ultimate client: the people of Canada.

The provisions requiring publication of the costs and opinions about those costs is an excellent initiative. Not only will it provide a greater degree of financial scrutiny by the public over their elected officials, it will also increase the public awareness of the cost of government at all times but especially during periods of restraint.

I know that some hospitals now issue a statement to the patient after being discharged, not for the purpose of payment but to show the patient the cost of hospitalization. Raising the awareness of the public to programs and services that can be easily taken for granted is good. The taxpayers are entitled to see where their money goes and conversely they should be shown how much it is costing when they themselves access programs and services. Very simply, it is accountability.

When the board of directors of a corporation is considering a new initiative, do they not intensely scrutinize the financial implications of the corporation, both in the short term and long term? Are we as parliamentarians not the board of directors of this great country Canada? Should we not also be making decisions on the new initiatives by intense scrutiny of the financial implications? The answer is clearly yes, yes, yes.

With respect to accountability, the public demands more accountability from Parliament. Bill C-214 is one way in which we are counting taxpayers and citizens in on the process of evaluation before the money is actually spent. People wonder at the deficits built up by past governments. How did we get into this horrible situation? By making Canadians and parliamentarians partners at the point of sale rather than only when the bills come in will help prevent or hopefully eliminate escalating deficits in the future.

My constituents can look at the per capita cost of a proposed project and tell me it is not worth it. Many supporters of an initiative in government may look at the cost in black and white and decide it is not worth it. We can give Canadians these choices.

Our children are the true recipients of any unpaid liabilities and the beneficiaries of prudent or imprudent decision making. We owe it to that generation to be aware of the costs of programs before we initiate them and before we saddle these children with an unacceptable financial burden.

The forces that would turn government back on the road to fiscal irresponsibility are at work today. Our colleagues opposite and perhaps members of the bureaucracy are already pondering how to spend annualized surpluses even though the deficit stands at over $600 billion. This legislation will serve as a check on these forces.

Today one of the priorities of the Canadian government is to get government right. Getting government right means modernizing the way we conduct our business and to include the Canadian public as citizens, as clients and as taxpayers. Governments must be transparent. Canadians have the right to know and we parliamentarians have the responsibility of informing them.

[Agriculture, November 6th, 1996]

Mr. Speaker, I would like to congratulate the Niagara Federations of Agriculture on their award winning educational video entitled "Where Does it All Come From?" This 13-minute children's video was recently honoured at the TVO Telefest awards gala in Toronto where it was awarded first prize in the instructional category.

The video offers children a fascinating insight into where our food comes from. The film represents a true picture of agriculture in the nineties and deals with the dairy, fruit and sheep industries.

The video was produced in partnership with the Niagara College television arts program and many talented Niagara peninsula residents contributed to its outstanding success. Lucy Decandido, a Niagara College graduate, filmed and edited the piece as her third-year project. The narration was provided by 12-year-old Keely Carter of College Street Public School in Smithville.

As one participant said: "Agriculture has a very positive story to tell and it is up to the agricultural community to tell it".

I compliment the Niagara Federations of Agriculture on their initiative to sponsor a copy of the video and teacher's kit for every elementary school in Niagara.

[The Environment, October 23rd, 1996]

Mr. Speaker, this government is committed to environmental health and protection and knows that the most efficient way to ensure environmental health is through pollution prevention.

Canadians are no longer willing to accept inaction on the part of government when there is potential for more damage to the environment or their health could be affected.

Transportation, including the automobile, is the single leading source of air pollution in Canada and it is the automobile industry itself that has told us that the fuel additive MMT compromises the efficiency of the newest emissions control technologies. That is why this government is moving to ban MMT.

Clean air is a priority for the government. In banning MMT we are moving quickly to restore the Canadian birthright to breathe clean and healthy air.

Some voices oppose the MMT bill, but doing the right thing is not always popular. Some people do not like the fact that this government is not afraid to make the hard decisions.

But then there is the voice of the Canadian people who know what it takes to protect their health and environment. They want their governments to be leaders on health and environmental issues. This government demonstrates yet again its full commitment to health and environmental protection.

[The Criminal Code, October 3rd, 1996]

Mr. Speaker, I welcome the member's question. To be honest, I thought he was getting up to speak on another matter. Could he just quickly rephrase that question?

[The Criminal Code, October 3rd, 1996]

Mr. Speaker, I am not familiar with the circumstances of Kelly Howe's death, but as was indicated earlier, the electronic monitoring which is called the GPS system can pinpoint an individual within yards of his or her position.

One of the Reform members was concerned about this having application in rural areas. I believe it would be easier to pinpoint someone in a rural area. If an offender is living in a major centre like Calgary, where the member comes from, and it is found through the system that he is now 30 miles away where his estranged spouse lives, we know darn well that he is not in a place where he should be. It is certainly easier to pinpoint him than it would be perhaps within a block or two of the city.

How would it work? The wisdom and benefit of the technology today can do these things. That is where I am coming from in answering the member's question.

[The Criminal Code, October 3rd, 1996]

Mr. Speaker, watching a repeat child molester walk out of a prison, unrepentant and unreformed, understandably drives people crazy with anger and betrayal.

Many Canadians want the justice system to do more with chronic pedophiles and rapists than simply wait for them to strike again. I agree.

My colleagues, the Minister of Justice and the Solicitor General of Canada, have responded to this genuine concern and recently announced new measures to deal with high risk offenders. Bill C-55 will toughen the sentencing and correction regime for those who pose a high risk of committing another crime. This is good legislation. This is responsive legislation.

These tough new restrictions on high risk, violent offenders will make Canadian homes and streets safer. The measures fulfil commitments made the red book as well as in the speech from the throne. The 1996 speech from the throne pledged that the government will focus resources on high risk offenders while developing innovative alternatives to incarceration for low risk offenders.

The following initiatives will strengthen the sentencing and correctional regime for those who present a high risk of violent reoffending, particularly sex offenders: a new long term offender designation that targets sex offenders and adds a period of supervision of up to 10 years following release from prison; strengthening the dangerous offender provisions in the Criminal Code and a new judicial restraint provision to permit controls, including electronic monitoring to be applied to individuals who pose a high risk of committing a serious personal injury offence.

Bill C-55 positively amends the Criminal Code and these changes have been welcomed by the Canadian Police Association and the Canadian Association of Chiefs of Police, a very sound endorsement.

The government is also committed to developing alternatives to incarceration for low risk offenders. This set of initiatives includes amendments to the Corrections and Conditional Release Act to allow for earlier parole for offenders convicted of crimes which did not involve violence to support rehabilitation and return to the community.

Let us review some of these provisions in more detail, first the long term offender provisions. Under the proposed changes a new sentencing category to be called long term offender will be added to the Criminal Code. Long term offenders will be those convicted of sexual assault, sexual touching, sexual exploitation, indecent exposure, aggravated sexual assault and sexual assault with a weapon or causing bodily harm.

This is a useful designation and is not necessarily the same designation as dangerous offender which is applied to those who have been convicted of repeatedly committing crimes of violence. It will target sex offenders who may be less violent and brutal than those designated dangerous offenders but are found to pose a considerable risk of reoffending.

The category will also include those offenders convicted of another crime such a break and enter with clear intent to commit sexual assault.

To better protect the community, offenders in this category will be subject to an additional period of supervision for up to 10 years after they have completed their parole and prison sentences.

This designation could be applied to first time offenders with psychological histories or other factors that indicate a possibility that they will likely repeat their crime; again, such as a pedophile convicted of assaulting a child. The long arm of the law will not miss such perpetrators.

The long term offender process will be similar to the existing dangerous offender application. Upon conviction the crown can ask for a thorough assessment of the offender's criminality and the risk he or she presents. On the basis of the assessment report the crown can then bring a dangerous offender or long term offender application.

If a long term offender finding is made, the judge will impose a prison sentence that suits the offence and add a period of long term supervision of up to 10 years to start when the incarceration period, including any parole, expires.

An effective program for rehabilitation is to gradually integrate offenders back into the community under controlled conditions. The long term offender designation by imposing on the offender an additional period of supervision in the community after the end of the regular sentence gives the offender a real opportunity to reintegrate without putting the community at risk, and that is very important.

Public safety is improved because Correctional Service Canada and the parole board can set stringent conditions on the offender, monitor the offender closely and pull the offender back in for any breach. An offender who breaches these conditions can be prosecuted and reincarcerated.

These safeguards address the fear that potentially dangerous criminals do the crime, finish their time and then are free to disappear back into the community without any monitoring.

I will also address the issue of dangerous offenders. The dangerous offender category will be improved by keeping such an individual in prison indefinitely. A judge will no longer have the discretion to sentence a dangerous offender to a fixed term. It will be an indeterminate term.

Currently a dangerous offender application must be made at trial. The crown will now have a window of six months after conviction to bring a dangerous offender application based on newly received information that may not have arisen at trial.

The process has also been streamlined. The number of psychiatrists required to testify at a hearing has been reduced from two to one. These are very positive and effective developments.

I would like to briefly touch on judicial restraint orders. The judicial restraint provision will be added to the Criminal Code and is another measure for the protection of the public. This procedure will focus on people who pose a risk of committing a serious personal injury offence. It can be applied to people who are not under a sentence as well as those who have completed their sentences.

Under this provision the attorney general would apply for a special hearing before a provincial court judge where there are reasonable grounds to believe that an individual is at high risk of committing a serious personal injury offence.

A judge will be able to impose general conditions such as keeping the peace and specific conditions appropriate to the kind of threat that could be posed by the individual. Two examples are staying away from places where children might congregate and staying away from an estranged spouse. As one of the conditions, the judge could order electronic monitoring in provinces where such programs exist. The judicial restraint would last for up to one year and could be renewed. A breach of conditions would constitute a separate criminal offence which could result in a jail sentence.

The judicial restraining order has been a topic of much conversation on the basis of its constitutionality, especially when it involves individuals who have no criminal record or charges pending. I well understand that this is an option to deal with stalkers and others who are difficult to convict.

As a member on the Standing Committee on Justice and Legal Affairs, I look forward to examining this provision further. On one hand, it may be no different than court orders now being granted that restrict known sex offenders from hanging around schools and playgrounds. These orders are granted rarely and officials must prove the person constitutes a serious threat. While I have my concerns about this section I reserve judgment on this provision until further study is completed.

The low risk non-violent offender is also addressed. In tandem with these tough new controls on high risk violent offenders, the Liberal government has introduced initiatives to deal with low risk non-violent offenders.

The first priority of the government's justice agenda is the safety of Canadians. The Liberal approach balances tougher penalties and restrictions with necessary community based efforts at rehabilitation and prevention. In co-operation with other levels of government, the federal government will promote measures which include sentencing reforms and community diversion programs as alternatives for imprisonment of first time non-violent offenders at a low risk of reoffending.

The route this government has taken is to get tough on repeat violent offenders while finding alternative sentencing for low risk offenders. There is no doubt this is a move in the right direction.

The Liberal government's safe home, safe streets agenda draws a clear distinction between low risk and high risk offenders. This balanced approach will help to ensure an effective criminal justice system with the penalties appropriate to the gravity of the crimes.

[The Criminal Code, October 3rd, 1996]

Mr. Speaker, my colleague has suggested that an application for dangerous offender designation could be made at any time during the period the individual is incarcerated. He used the example of an individual who committed

40 offences during the period of his incarceration and one of those being a stabbing.

My concern is that in our rules of law we can only really be tried for an offence once. The fact that you are incarcerated does not mean that you have carte blanche to commit crimes willy-nilly and go unprosecuted. Surely these 40 offences, especially the stabbing, are of themselves offences deserving of charges being laid, being brought to trial and sentencing again. Would that not be an appropriate time then to bring this dangerous offender application?