moved that Bill C-41, an act to amend the Criminal Code (sentencing) and other acts in consequence thereof, be read the second time and referred to a committee.
Mr. Speaker, as I rise to begin the debate on second reading of Bill C-41 with respect to sentencing, may I first observe that the bill is a response to and product of over 14 years of effort to achieve comprehensive reform in the sentencing process as part of the criminal justice system in Canada.
Indeed the need for such reform in the sentencing process has been long recognized by judges, by parliamentarians, by lawyers, by Canadians themselves.
For over a decade there have been calls for such reform: a royal commission on the subject, the law reform commission, the Canadian sentencing commission which reported in 1987, and in 1988 an all-party committee of the House which had a comprehensive set of recommendations with respect to sentencing, conditional release and corrections.
Many of those recommendations are reflected in this bill. It is in recognition of that need for reform that my party gave its commitment last year during the election campaign to introduce this legislation.
I tabled Bill C-41 on June 13 last and today I recommend to the House that it be considered and approved in principle and referred to the Standing Committee on Justice and Legal Affairs.
The bill we are considering today is a significant one. By its terms, for the first time Canadians would have a say through Parliament on the purpose and the principles of criminal sentencing. No such statement exists at present in the Criminal Code. Parliament's role to date so far as sentencing is concerned has been limited to setting certain maximum levels of incarceration and rarely minimum levels rather than dealing with the policy objectives of the sentencing process.
Bill C-41 brings together first, a statement of the purposes and principles of sentencing; second, the rules governing procedure and the admissibility of evidence in the process; and third, the various sanctions that the courts may impose to punish, to deter, to rehabilitate, all in a form that represents the collective view of Parliament.
The changes proposed in this bill have been broadly accepted by criminal justice professionals, by the provinces and by the territories. The establishment of these statements of purposes and principles has been endorsed by the Canadian Sentencing Commission, by the justice committee of this House and the former Law Reform Commission of Canada. I would not want it to be thought that Bill C-41 is the product only of the so-called elites, the professionals, the government administrators of the
system. The bill reflects rather, in my respectful view, the broadly based need, the widely felt need in Canada for uniform and effective statements in the code for what sentencing is to achieve.
I believe that sentencing practices in Canada must consistently reflect the values that Canadians have told us are important to them in the treatment of offenders. But considering the fact that criminal sanctions provide for one of the most serious intrusions by the state into the lives of individuals, indeed depriving them of liberty, it is really quite remarkable that the criminal law to date has not contained such a policy statement.
Through this bill, Parliament provides the courts with clear guidelines. Parliament stresses the need to punish certain types of behaviour by clearly stating that the purpose of sentencing must be to denounce unlawful conduct, to deter offenders and other persons from committing crimes and to separate offenders from society, where necessary.
In addition, the statement of the purpose and principles of sentencing provides that the sentence must take into consideration the will to protect society, to assist in rehabilitating offenders and promoting their sense of responsibility and to provide reparations for harm done to victims or to the community.
The bill also defines various sentencing principles, for instance that the sentence must be proportionate to the gravity of the offence and the offender's degree of responsibility. When appropriate, alternatives must be contemplated, especially in the case of Native offenders.
The bill provides courts with clear policy direction from Parliament. The elements of punishment are addressed. Denunciation is there, as are deterrents and separation from society. The bill is a comprehensive and detailed one. I would like in the moments during which I will speak to the House today to highlight a number of issues that I feel are particularly important.
First, the statement of purpose and principles augments the normal sentencing practice of considering extenuating factors by specifying two important circumstances. It provides that when the evidence demonstrates that an offence has been committed by a person who abuses a position of trust or authority in relation to the victim, that shall be considered as an aggravating circumstance in determining the penalty.
Numerous recommendations have been made respecting breach of trust for offences involving violence against women, for example, and involving vulnerable persons including children. The 1993 violence against women survey by Statistics Canada demonstrated that almost one-half of women reported experiencing violence during their lives by men known to them. In too many cases positions of trust were exploited, for example, by adults against children or a physician against a patient.
The 1984 Badgley committee called for protection of children from persons they already know and trust. Including this specific aggravating circumstance will express Parliament's determination to extend criminal law for the purposes of protecting such persons, persons made vulnerable through the disarming effects of a trusting relationship.
The bill also specifies that if an offence is motivated by bias, prejudice or hate, this shall be considered an aggravating factor in determining the sentence. It seems to me that this provision responds to growing concerns about hate motivated crime.
The last report of the league for human rights of the B'nai Brith established that the number of reported anti-Semitic incidents has grown significantly over the last few years.
Moreover, hate motivated violence against individuals based on the offenders bias toward other sexual orientations has sparked public anxiety. General concerns have been raised about the pervasiveness of racism in Canada.
Recognition in the Criminal Code of hate motivation as an aggravating factor in sentencing will send an important message to minority communities and to the public at large.
A second feature of Bill C-41 merits special treatment in this debate. The bill reflects also the importance of our recognizing the plight of victims of criminal acts. Bill C-41 goes some distance in achieving that objective.
The statement of purpose and principles specifically indicates that objectives for sentencing include the provision of reparation for harm done to victims or the community and the promotion of a sense of responsibility in offenders, an acknowledgement of the harm done to victims and the community.
It goes further, specifically in relation to section 745 of the Criminal Code. That is the section that makes it possible for a person who has been sentenced to life with a period of parole ineligibility longer than 15 years to apply after 15 years for permission to seek parole. Such an application is heard by a court composed of a judge and jury, and two-thirds of the jury must agree before such a person is given permission to apply for parole.
The section has become controversial and it is alleged that life should mean life, that no such application should be permitted. Against that there are those in the correctional system who insist that persons who are rehabilitated after 15 years should have the opportunity to appear before a court and seek not parole but permission to apply for parole, to establish that they have
changed and society's best interests would be served by their being considered for parole release.
Earlier this year I met Marie King Forest, a woman from Saskatchewan whose husband was a member of the Royal Canadian Mounted Police, murdered in the course of his duties.
Mrs. King Forest attended court earlier this year during the hearing of an application under section 745. She was accompanied at the meeting by three other women whose husbands had been police officers and who had been killed in the course of their duties.
Mrs. King Forest described to me the anguish she felt at reliving the tragedy of her husband's death and at the whole process surrounding the 745 application. It is out of respect for that anguish, for the feeling on the part of the families of murder victims, homicide victims, that they should have some role to play in the process.
Bill C-41 proposes a change to section 745, a change that would specifically require the court to take into account on such an application the perspective and the evidence of the victim's families in deciding whether permission should be granted to the applicant to seek early parole.
While it does not go as far as some would have it go-indeed they would have us revoke the section-that change goes a long way toward accommodating the concerns that have been expressed by, among others, the Canadian Police Association and the Canadian Association of Chiefs of Police. I believe it achieves a balance. It permits the court to take into account at the time of such an application the continuing anguish and loss of the victims' families and measure it against other societal values and objectives, including the importance of reintegrating into society someone who has been rehabilitated and who can demonstrate so at the time of the hearing.
Still on the subject of victims in the criminal justice system, the restitution provisions which have been in the Criminal Code for some years, since they were passed in 1988, have largely remained unproclaimed due to provincial objections with respect to the complex procedures that they contemplate.
Bill C-41 sets out a new set of measures respecting restitution developed co-operatively by the federal government and our provincial colleagues. There is a priority given to restitution. If a court finds it appropriate to award both a fine and restitution, the priority will go to the victim. Restitution must be honoured first.
Provision is made to ensure that restitution orders can be enforced by the civil courts. One can register them, like a judgement, then ask that they be executed upon so the property or the money of the offender can be seized to satisfy the order.
Finally, the Criminal Code will specifically state that any restitution ordered by a criminal court will not limit a victim's right to sue for damages in the civil court. A victim will be able to take a restitution order to the civil court for execution.
At the present time, nearly a third of the people liable to incarceration in provincial jails are in that situation because they did not pay fines. Studies have shown that Natives are the most at risk of being incarcerated for failing to pay fines. Since we know that these offenders rarely go to prison for long periods and, in fact, often do not spend any time in jail, the administrative burden involved in treating these cases is heavy and of little use.
The bill recognizes this situation.
These provisions state that the court must be convinced that the offender can pay the fine contemplated before imposing it. In case a fine is not imposed because the offender would not be able to pay it, the offender will be liable to other penalties such as probation or community service.
Measures are provided in the bill to help provinces collect outstanding fines. Provinces will be able to use the same mechanisms to enforce fines under the Criminal Code as they use for provincial statutes. Persons designated by the court will be able to make adjustments to the order. Provinces will be able to refuse to issue or to renew permits or licences until a fine is paid. They may refer the case for civil enforcement. Incarceration would be retained only as a final enforcement option.
Ultimately I believe that these proposals will result in less crowded institutions and should decrease the costs for the system. They will do this without compromising the effectiveness of criminal justice and its administration.
In the last few years, we have learned a great deal about the administration of justice, about how to protect the public better. Incarceration must remain an option for offenders who need this form of punishment and must be separated from society to ensure the safety of the population. It is worthwhile to remind the House that Canada's incarceration rate is extremely high compared with other industrialized countries.
Furthermore, studies show that for minor and first-time offenders, incarceration is not very useful or effective and may even be harmful if the goal is to turn the person into a law-abiding citizen.
The provisions of this bill concerning alternative sentences for adults and the new approach to collecting fines, which I talked about earlier, will allow the courts to handle cases differently according to their specific sets of circumstances by expanding the range of options available for serious and minor offenders alike. Our goal is above all to create a more equitable, less costly and more effective system which Canadians can trust.
A general principle that runs throughout Bill C-41 is that jails should be reserved for those who should be there. Alternatives should be put in place for those who commit offences but who do not need or merit incarceration.
What alternatives will be available? For the first time Bill C-41 introduces diversion for adult offenders. At the discretion of the investigating officers and the appropriate authorities persons charged with a minor offence, particularly the first time, can be sent into a parallel stream away from the courtroom to be counselled or to be helped to overcome whatever problem led to the infraction.
Courts will continue to have probation as an appropriate sanction in the cases which require it. Fines, as mentioned, will be improved. There will be a new sentence provided for in Bill C-41 called the conditional sentence. I will speak to that remedy for a few moments.
Where a court imposes a sentence of imprisonment of less than two years and where the court is satisfied that serving the sentence in the community would not endanger the safety of society as a whole, the court may order that the offender serve the sentence in the community rather than in an institution.
Offenders who do not comply with such conditions as may be imposed at that time can be summoned back to court to explain their behaviour, to demonstrate why they should not be incarcerated. If the court is not satisfied with that explanation, it can order the offender to serve the balance of the sentence in custody. This sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls.
It seems to me that such an approach would promote the protection of the public by seeking to separate the most serious offenders from the community while providing that less serious offenders can remain among other members of society with effective community based alternatives while still adhering to appropriate conditions. It also means that scarce funds can be used for incarcerating and treating the more serious offenders.
There is much in the bill to remove uncertainty and mystery about the sentencing process. The principles and purposes are spelled out once and for all. The theme of the bill is that such matters should not be left just to the justice professionals but should be there for all members of the public to see.
In keeping with that approach there is a provision in C-41 requiring reasons for sentencing to be given in all cases. This measure will encourage well-reasoned decisions, will assist courts of appeal in dealing with appeals from sentences and will serve an educative function.
Giving reasons will assist the courts in expressing their objectives in demonstrating how they are applying the principles of sentencing and should enable the public better to relate to what is done in sentencing and to the policy approved by Parliament. Without overstating the provision, I hope it will help us to evolve sound government policy in criminal justice with broad and better informed public support.
All of these proposals and C-41 in its entirety are designed to increase public accessibility to the law concerning sentencing, to make it more understandable and to make it more predictable. The bill includes a complete restructuring of part XXIII of the Criminal Code of Canada. It brings together most of the provisions relating to sentencing now in the code. It presents them in such a way as to make them, I hope, more logical and more accessible both to criminal justice professionals and to the public.
With this bill and with the other initiatives in the area of criminal justice the government is providing a balanced and a comprehensive approach to the challenge of crime in Canada. Improving the process and clarifying the principles of sentencing is not going to solve all of our social problems but the bill will, I hope, contribute along with crime prevention initiatives to respect for the law and the maintenance of a just, peaceful and safe society.
Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society. We must remember as well that only 10 per cent of all crime is violent and that over 53 per cent of all crime involves property, not people. Therefore, this bill creates an environment which encourages community sanctions and the rehabilitation of offenders together with reparation to victims and promoting in criminals a sense of accountability for what they have done.
It is not simply by being more harsh that we will achieve more effective criminal justice. We must use our scarce resources wisely. It seems to me that Bill C-41 strikes that balance and I commend it to this Chamber for its consideration.
