Paul MacKlin

[Criminal Code, October 21st, 2005]

Mr. Speaker, it is a pleasure to respond to some of the questions just raised by the hon. member who just spoke.

He was off on a bit of a rant about not having enough tough mandatory minimum sentences. I want to take this moment to give him an opportunity to reflect on those that are in the Criminal Code that deal with those who would use a firearm. It is very important to get on the record that there are some very serious consequences for those who use firearms and there are mandatory minimum penalties.

We all know there is a mandatory minimum penalty associated with murder. Criminal negligence causing death has a mandatory minimum sentence of four years. Manslaughter carries a mandatory minimum sentence of four years. Attempted murder carries a mandatory minimum sentence of four years. The mandatory minimum sentence for causing bodily harm with intent is four years. Sexual assault with a weapon and aggravated sexual assault both carry a mandatory minimum sentence of four years. Kidnapping and hostage taking both carry a mandatory minimum sentence of four years. Robbery and extortion both carry a mandatory minimum sentence of four years. There are many other mandatory minimums within the Criminal Code but those that I have recited have four year mandatory minimums.

There are strong tools within the Criminal Code and I have just outlined some of them. I would like the member's comments on that.

[Justice, October 21st, 2005]

Mr. Speaker, clearly, we are well aware that the victims of crime do have concerns about the criminal justice system being in balance. We know that the victims question the amount of money that is spent to train and rehabilitate those who are incarcerated.

The reality is the primary goal that most victims will agree with us on is that they never want to be a victim again, and the government agrees with this goal.

[Criminal Code, October 20th, 2005]

Mr. Speaker, it is a pleasure to have the hon. member agree with me at least on a couple of occasions with respect to my speech. That is somewhat encouraging. However, what really troubled me in this whole process is when the hon. member indicated that Bill C-64 was not tough enough.

I took the occasion to look at Bill C-287 and its penalty provisions. I then looked at the penalty provisions of Bill C-64. Unless I am mistaken, they are identical.

When we are dealing with sentencing, could the hon. member tell me what he means when he says it is not tough enough?

[Criminal Code, October 20th, 2005]

Mr. Speaker, of course as an individual who has practised some law in my life I know that the onus always falls upon the Crown to make the case. In this case it would be the same. There is the onus on the Crown. I do not think that onus is undue.

I think this is a situation where in fact if a person is found in a wrecking yard dealing in ordinary parts as part of their business, the inference generated would clearly be that they were in that business, that it was a common occurrence, whereas if a person went into what is called a chop shop operation, where in fact there are no identifying characteristics of that property as being related to an ordinary type of business, I think the inference is rather obvious.

The crown prosecutors are very skilled at doing this work. We give a great deal of support to the provincial crown attorneys who have to prosecute these cases. I believe they do an excellent job. I am certain that they will have the capacity to do that within this bill.

To deal with the member's second question about the types of penalties, obviously we cannot talk about the types of penalties that will be ultimately received under this bill because the bill is just coming into force as and when this Parliament decides that it is appropriate. At that time, of course, we will see what the ultimate outcome is.

What we are doing is adding one more tool to the broad toolbox of opportunity for prosecutors and those in law enforcement to take forward and use in ultimately achieving successful prosecutions against those who are engaged in this type of business. We will certainly leave it to them. I believe that our law enforcement officials are capable, as well as our provincial prosecutors, and I am sure they will do the best they can with us having this extra tool for them to use in going after those who would steal cars.

[Criminal Code, October 20th, 2005]

Mr. Speaker, it is a pleasure for me to speak about Bill C-64, an act to amend the Criminal Code (vehicle identification number).

In 2004, there were nearly 170,000 thefts of motor vehicles in Canada. Despite a slight decline in the last few years, the number of motor vehicle thefts in Canada remains high.

According to the law enforcement authorities and other justice system stakeholders, criminal organizations contribute substantially to the frequency of motor vehicle thefts. This is often the case because this sort of theft is a low-risk, high-return activity. It is an activity often used to raise funds for these organizations which are involved in various other criminal activities.

The government has tabled this important bill as a measure which specifically targets, on the one hand, the involvement of organized crime in the commission of this offence, and on the other, the way in which the commission of crimes is facilitated.

This targeted amendment would make it an offence to wholly or partially alter, remove or obliterate a vehicle identification number without lawful excuse and under circumstances that give rise to a reasonable inference that the person did so to conceal the identity of the motor vehicle.

The offender would be liable to imprisonment for a term not exceeding five years upon conviction by way of indictment. In a case of summary conviction, the offender would be liable to imprisonment for a term not exceeding six months and a fine of $2,000, or either of the two.

A vehicle identification number is required on vehicles in Canada and is intended to distinguish one motor vehicle from another similar vehicle.

The VIN is made up of alphanumeric characters representing various information such as the vehicle model, the year, the manufacturer, and it is affixed to the vehicle at various locations. In a sense, the VIN gives the vehicle a distinct identity; it is a vehicle DNA.

The objective of organized car thieves immediately after a vehicle is stolen is to rid the vehicle of its stolen nature by providing it with a false or unknown identity. One of the steps in this process by which a stolen vehicle obtains a false identity is through the act of tampering with a vehicle identification number. Organized crime has certainly been noted as being involved in this type of criminal activity.

A survey conducted by Statistics Canada indicates that 60% of organized crime groups in Canada deal in the illicit theft and trafficking of stolen vehicles, while an additional report by Statistics Canada notes that approximately one in five vehicle thefts in Canada may be linked to organized crime groups or theft rings. Therefore, based on the most recent vehicle theft numbers in Canada organized crime may be involved in up to 34,000 motor vehicle thefts each year in this country.

In addition to research and statistics, law enforcement has also highlighted the involvement of organized crime in the cycle of theft, reidentification and resale of vehicles.

The 2004 annual report put out by the Criminal Intelligence Service Canada has specifically identified the involvement of a number of criminal organizations in organized vehicle theft in Canada. This report has noted that vehicles stolen by organized crime groups, like outlaw motorcycle gangs, tend not to be recovered as they are often exported overseas, transported for interprovincial resale, or stripped for the sale of parts.

The report goes on to recognize that organized crime has been involved in stealing luxury vehicles, changing the serial numbers and selling the vehicles in Canada, Europe and southeast Asia. Furthermore the Canadian Association of Chiefs of Police has recognized this criminal activity and has specifically called on the government to create an offence prohibiting the alteration, obliteration or removal of a VIN.

The chiefs of police have noted that “the elicit domestic and international trade in revinned vehicles and the impact of organized auto theft on private and corporate citizens in Canada clearly warrants this proposed amendment to the Criminal Code”.

Finally, the National Committee to Reduce Auto Theft has noted in a report on organized vehicle theft rings that over the past several years there has been a decline in the number of stolen vehicles being recovered. According to the report, this decline is the result of increased involvement of organized crime in vehicle theft as large numbers of vehicles stolen in major centres are surgically stripped for parts for resale, or identified for resale, or exported to international markets.

In considering the addition of this new offence, it is important to reflect upon how the proposed VIN tampering offence will fit within the existing Criminal Code framework. In fact, this offence would complement the existing offences in the Criminal Code used to combat auto theft, including theft over $5,000, which carries a 10 year maximum term of imprisonment on indictment; possession of property over $5,000 obtained by crime, which also carries a maximum of 10 years' imprisonment on indictment; the taking of a motor vehicle without consent, which is a straight summary conviction offence; and finally, the offence of flight from a peace officer, which carries a five year maximum term of imprisonment on indictment, a 14 year term if bodily harm is caused and a lifetime term of imprisonment if death results.

Furthermore, a five year maximum term of imprisonment on indictment as this bill proposes qualifies this offence as a criminal organization offence. Therefore, if it is found to have been committed for the benefit of, at the direction of, or in association with a criminal organization, the courts are currently directed in the Criminal Code to consider this as an aggravating factor in sentencing.

Needless to say, a VIN tampering offence would add a unique tool to the already significant tool kit in the fight against motor vehicle theft. It is also important to recognize that the current Criminal Code offence of possession of property obtained by crime provides that evidence that a person has in his possession a motor vehicle with a wholly or partially removed or obliterated VIN is, in the absence of any evidence to the contrary, proof that the motor vehicle was obtained by crime.

This new VIN tampering offence would therefore build on the existing possession offence and specifically criminalize the intentional tampering. Currently, those who engage in VIN tampering are often charged with the related offence of possession of property obtained by crime. Although a significant period of incarceration is available for the commission of this offence, it does not fully describe the criminal activity these organized vehicle theft rings are involved in. It is not only the theft and possession of the stolen property which should be criminalized, but also the act of concealing the identity of the stolen vehicle. Therefore, there is a gap in the Criminal Code which this amendment would fill in a meaningful way.

A conviction registered under the Criminal Code for altering, obliterating or removing a vehicle identification number would also more clearly and accurately help to indicate a person's involvement in an organized vehicle theft ring. This information would be of value to the police and crown prosecutors in subsequent investigations and prosecutions.

Since this bill is not proposing to amend an existing offence, but instead is seeking to create an additional offence for the behaviour not currently captured under the Criminal Code, those who engage in VIN tampering, if the evidence is available, will likely now be facing numerous charges as opposed to the one offence of possession of property obtained by crime.

The existence of multiple convictions arising out of the same set of facts will result in a more severe global sentence. For example, currently under the Criminal Code, offenders are subject to a 10 year maximum sentence for possession of property obtained by crime. If this bill is passed,then the same offender, when the evidence is available, could face a 10 year maximum term of imprisonment for possessing stolen property in addition to a five year maximum term if convicted of VIN tampering. Those who are fighting auto crime on a daily basis would therefore welcome this addition.

Experience has shown that criminal law legislation is complemented by targeted law enforcement strategies, technological advancements and community education. In this regard I would like to compliment the successful bait car program being run in British Columbia. Enforcement and education will certainly continue to play a vital role in fully addressing motor vehicle theft in this country.

With regard to technological advancements, it is true that in many cases vehicles are stolen for the thrill of it or used to commit further crimes. In this regard a significant advancement was made by the government in March 2005 with the regulatory amendment regarding vehicle immobilization systems brought forward by my colleague the Minister of Transport.

This amendment requires that by September 1, 2007 all new vehicles weighing less than 4,536 kilograms, except emergency vehicles, must be equipped with an immobilization system. These immobilization systems will certainly prove to be effective in reducing vehicle theft in this country by making it a more difficult crime to commit.

It is also important to recognize that the broader issue of motor vehicle theft has recently been raised by our provincial partners. It is vital for the government to examine whether the existing Criminal Code offences are being applied to their fullest potential and whether there are other viable ways in which vehicle theft could be addressed.

That is why in January of this year at the suggestion of the province of Nova Scotia, federal, provincial and territorial ministers of justice agreed to refer the matter of the Criminal Code amendments affecting the categorization of theft of motor vehicles and increased penalties for those who steal vehicles and drive recklessly to a coordinating body of the senior FPT officials for study. Provincial and federal officials are working collaboratively on this review.

In conclusion, this proposed amendment fills an existing gap in the Criminal Code. It targets the role of organized crime in the theft, disguise and resale process and provides appropriate punishments. This new offence, in combination with other existing Criminal Code tools, technological advancements, and law enforcement strategies and community education will work together to combat the underworld of organized vehicle theft in Canada. Therefore, I certainly encourage all members of the House to support Bill C-64.

[Criminal Code, October 20th, 2005]

Mr. Speaker, I thank the hon. member for his support and his party's support for the bill. Clearly, this is a problem that has been of great concern to many, especially in urban centres where street racing has become extraordinarily prevalent.

With respect to the criticism that has been levied in comparing these two bills, that is the bill brought forward by Mr. Cadman and the bill the government brought forward, if we examine the first offence category, in a majority of cases they are first offenders who are being dealt with under legislation in situations where street racing has been involved and a death has occurred.

If we look back and reflect on the previous bill that was brought before the House as a private member's bill, the mandatory minimum prohibition for driving was one year, with a maximum of three years. In this bill there is a mandatory minimum driving prohibition of one year with a lifetime ban as the maximum penalty.

Does the hon. member think it has been fair to make the comment that this bill is a watered down version of Mr. Cadman's bill?

[Controlled Drugs and Substances Act, October 18th, 2005]

Mr. Speaker, it is a pleasure to speak today to Bill C-248, an act to amend the Controlled Drugs and Substances Act, trafficking in a controlled drug or substance within five hundred metres of an elementary school or a high school.

The bill would provide that every person who, within 500 metres of an elementary school or a high school, traffics in a substance included in schedules 1, 2, 3 or 4 of the Controlled Drugs and Substances Act is liable to a mandatory minimum penalty of one year for a first offence and to a mandatory minimum penalty of two years for a subsequent offence.

The maximum penalties, however, were left untouched by the bill. In other words, Bill C-248 provides a maximum penalty of life imprisonment for trafficking in a substance included in schedules 1 and 2. The maximum penalty is 10 years where the offender traffics in a substance included in schedule 3. As for trafficking in a substance included in schedule 4, the maximum penalty is three years. Finally, an offender trafficking in a substance included in schedule 2 in an amount that does not exceed the amount set out for that substance in schedule 6, is liable for a maximum term of imprisonment of five years.

As can be understood from the penalty scheme I have just described, Bill C-248 contravenes the fundamental principle of proportionality in sentencing. This principle states that a penalty imposed on an individual must be proportionate to the gravity of the offence and the responsibility of the offender. This principle led to drugs being classified in specific schedules to reflect the severity of their harmful effects. Yet Bill C-248 proposes the same mandatory minimum penalties for trafficking of different drugs.

For example, a first time offender trafficking cocaine is liable to a maximum penalty of life imprisonment. Whereas a first time offender trafficking in barbiturates is liable to a maximum penalty of three years imprisonment. Bill C-248 proposes to punish both of these offenders with a minimum mandatory one year imprisonment for the first offence and a minimum mandatory two years imprisonment for any subsequent offence.

This is one of the reasons why I cannot support the penalty scheme that is proposed by Bill C-248. Moreover, Canada has traditionally used mandatory minimum penalties with restraint, unlike the party opposite that suggests we should use them all of the time. We prefer an individualized sentencing approach that gives the courts not only the discretion to fashion a sentence that is proportionate to the gravity of the offence and to the conduct of the offender, but also the opportunity to consider aggravating and mitigating circumstances.

There is a wide variety of circumstances that could influence the sentencing of an offender found guilty of trafficking drugs. For example, courts have considered in such cases the offender's health, the fact the offender was on the low end of the responsibility spectrum or the fact that the offender has children and is the sole provider. Bill C-248 disregards the existence of mitigating and aggravating factors and contributes to introducing rigidity into the sentencing process.

Sometimes the use of mandatory minimum penalties can pose charter risks under section 12, the cruel and unusual punishment section. For instance, in Smith, the Supreme Court of Canada struck down the mandatory minimum penalty for importing narcotics. In the opinion of the court, the mandatory minimum penalty was contrary to section 12 of the charter because it covered numerous substances of varying degrees of dangerousness and totally disregarded the quantity of the drug imported. The court also thought that mandatory minimums completely disregarded as irrelevant the purpose of a given importation and the existence or not of previous convictions for offences of a similar nature or gravity.

Research into the effectiveness of mandatory minimum penalties has shown that they do not have any obvious special deterrent or educative effect and are no more effective than other well-structured sanctions in preventing crime. This was confirmed in a comprehensive study commissioned by Justice Canada in 2001 which found that there was no correlation between crime rate and the severity of punishment.

A recent study, also commissioned by the Department of Justice, which summarizes findings from a review of sentencing arrangements in a number of western countries, found that studies that have evaluated the impact of mandatory minimum penalties found no discernible effect on crime rate.

Past experiences taught us that mandatory minimum penalties can have negative effects on the administration of our criminal justice system and that they imply significant costs for provincial and territorial correctional authorities and the Correctional Service of Canada. Research also shows that mandatory minimum penalties remove incentives for anyone to plead guilty and thereby increase trial dates, case processing times and workloads.

In conclusion, I cannot support Bill C-248 as it advances penalties that are not proportionate to the gravity of the offence and to the conduct of the offender and would deprive courts of discretion in fashioning a fit sentence by taking into account aggravating and mitigating factors.

[Justice, October 18th, 2005]

Mr. Speaker, there is no question when it comes to the protection of children that the opposition has anything on us.

We believe the priority of children is important. We have taken Bill C-2, our first bill in this session of Parliament, and brought it forward for the protection of children and other vulnerable persons.

We believe in the protection of children. We believe that Bill C-2, when it comes into force, will meet that challenge.

[Justice, October 18th, 2005]

Mr. Speaker, as I have said on a number of occasions in this House, the protection of public safety and the safety of our citizens is a priority for the government.

In fact, if the member would check, he would see within the Criminal Code that other than murder, there are 10 offences where they are committed with a gun and carry a minimum mandatory penalty of four years. I think the member needs to pay attention. It is there. It just needs to be enforced.

[Criminal Code, October 18th, 2005]

Mr. Speaker, it is time to reflect on the bill and to look at the comparisons between Chuck's bill, Bill C-230, and the existing bill. We need to be very fair and forthright about it. We need to look at the suggestion that was in Chuck's bill, Bill C-230, regarding a death on a first offence.

On a first offence of street racing and a death occurs, Chuck wanted a mandatory minimum penalty in terms of a prohibition against driving of one year. The government bill provides the same. Chuck's bill provided for a maximum of three years of prohibition. The government bill provides for a maximum of lifetime prohibition. How is that watering down the bill?