Mr. Speaker, we are continuing debate on this quite new statute. It was only introduced a month ago.
It is another of the government's many amendments to the Criminal Code, which for some reason it has not been able to package in one bill. I do not mind that if perhaps carving up these Criminal Code amendments into smaller pieces will make it easier for colleagues in the House, and maybe for the cabinet. Maybe the cabinet is not able to handle a big Criminal Code omnibus bill all at once. It is quite possible the members of the cabinet have limited capacity to handle those kinds of volumes.
I can assure the House that I have seen bills that are longer, larger, thicker, more complex than each of these Criminal Code amendments. Something tells me the procedure would go a lot faster and more efficiently if the government had chosen the route of larger bills.
Right now, I did a count on this, there are somewhere around 15 separate Criminal Code amendments in the House and in the Senate. It has dragged on from the previous session into this session, and in some cases from the previous Parliament into this Parliament.
In any event, let us say that we are catching up. We are trying to accommodate the volume, keeping in mind that every bill must be debated in the House. The bills have to go committee. Almost all bills do go to committee for study after second reading, then come back here for possible amendment or concurrence or third reading, and then off to the Senate for analogous procedures.
All of that takes time, no matter how we cut it. I am merely saying this because with the addition of this new bill, it will simply add to the list that the Minister of Justice will, from time to time, refer to and pretend that the House is taking excessive or inordinate amounts of time to pass.
He has made the same complaint with the Senate, although I do notice that since the Conservatives achieved a working majority in the Senate, the other place, he does not seem to criticize the Senate quite as often as he used to. Indeed, that Senate has to do the same kind of work we do. It has to pass these bills.
If there is anyone to blame for the lengthy investment of procedural time on these bills, it must be the government itself because it is the one that decided that instead of having two or three separate bills, it wanted to have roughly 15 bills. That is simply the state of art as it is now.
This particular bill focuses on the area of sexual offences in relation to children. It is a three or four part rework of a number of sections of the Criminal Code, sentencing provisions and prohibition orders. There is an insertion of one, two or three new provisions, and I will make reference to those in my remarks.
The concept of adding some mandatory minimum sentences to the code is not new. We have been doing this in Parliament for 10, 20 or 30 years, but not doing it on a wholesale basis. It seems to me that every time the government moves around now it includes mandatory minimum sentences in whatever it does in relation to the Criminal Code. I do not think that is good public policy. There are a whole lot of people who do not think that is good public policy.
That is not to say that we do not need minimum sentences. There are situations and circumstances where they are appropriate and useful, and should be there. In this particular bill, while there are a whole lot of mandatory minimums added, I would have to accept that in some cases the mandatory minimum is appropriate with one proviso.
As I read the bill, and as I said it has only been on the order paper for a month, I compared the new provision to the old provision. I found that the old provision already had a mandatory minimum sentence built into it. I wondered what was happening here.
This is like a bidding war such that “I can legislate a bigger mandatory minimum sentence than they can”. I hope that is not what is going on here. I hope that the mandatory minimum sentence provisions that have been chosen and inserted into some of these new bills have been thought about and canvassed among people who understand how the sentencing system works. I hope this is not just a political reaction of “look how big of a sentence I can propose in my legislation”.
The bill also expands the list of conditions and coordinates the conditions with convictions. For example, on a type of offence involving children there may be a condition during or post sentence that the individual is prohibited from doing certain things or being in certain places. That is usually involving children.
There are a couple of other new arrangements in there that we should take a look at, and I will in my remarks if I have time.
One of the newer interventions in the Criminal Code in dealing with children is the arrival of the Internet and computer. At one point in our legislation we actually used the term “computer”. About 15 or 20 years ago we defined what a computer was and the types of offences that would involve a computer and other people, or a computer and children.
Now, of course, we have convergence in the technology universe. The basic hand-held telephone is the equivalent of a computer. We now have to reinvent the terminology we use because a cellphone is not a computer, yet it is capable of being part of a series of actions involving a criminal offence.
I can see there is a reversion in the definitions here to go back and reincorporate telephones and telecommunications in addition to the computer. We may have to abandon the concept of “computer”, there may be some other concept of technology that we have to refer to.
Of course, we will be forever revising and amending our Criminal Code as we go into the future because these things will happen. Our society will change, technology will change, and we have to keep updating our codes. I do not object to the concept at all.
I have mentioned mandatory minimum sentencing as a concept and it has been inserted into many sections in the bill. I have to ask the question again: Do mandatory minimum sentences work?
The answer is not clear. There is not a simple yes or no answer to this. It appears that a mandatory minimum sentence can work as a deterrent if it is associated with public education and good enforcement. We learned this with reference to the drunk driving and the impaired driving provisions of the Criminal Code.
It appears to us that the mandatory minimum sentences provided for in the impaired driving sections have had a deterrent impact. Keep in mind that the mandatory minimums there are associated with other penalties, escalating penalties and good enforcement by police who are out there stopping drivers, using breathalyzers, and doing a very good job of enforcement.
Did it get rid of impaired driving? No.
Has it diminished it? The statistics show that it has.
We accept that a mandatory minimum penalty will work. We have evidence that it does not work. The mandatory minimum penalty for murder is life in prison, 25 years before parole. Does that deter murder? Let us accept that it does but we still have a lot of murders. Obviously the toughest sentence we have does not deter.
Lurking behind this issue of mandatory minimum sentencing is the problem that most people who commit criminal offences do not even think about deterrence in the first place. When they commit the offence, they actually do not believe they will be caught. If they do not believe they are going to get caught, then they could hardly be expected to turn their mind to a mandatory minimum sentence if caught. If the mandatory minimum sentence is going to deter an individual, that individual has to think he or she will get caught.
I also have to accept that mandatory minimum sentences are not there only for deterrence. Mandatory minimums can also be used for what is called societal denunciation, meaning society says the individual has done a bad thing so that no matter what he or she has to go to jail.
We have had a lot of litigation on this. There has been a lot of sociology on this. As Canadians, we are entitled to put a firm penalty into a Criminal Code offence. We are entitled to say that someone who has done a bad thing must serve some time so that the person knows and everyone knows it was a bad thing.
Denunciation is a part of this but it cannot be the rock bottom foundation. For public safety purposes we need deterrents and a whole range of other factors in sentencing. They are all listed in the Criminal Code in one of the sections revised about 15 years ago.
A lot of us in the House come from urban areas or urban-rural areas close to big cities. A few of us come from rural and remote areas with a lot of very small communities. Not every small community has a court and a jail. When we enact in here a provision that says there must be a mandatory minimum sentence and a crime takes place in a remote community that requires that mandatory minimum sentence, the individual has to be picked up and taken to a court somewhere. Even if there is a courthouse in the community there may not be a jail. If the individual is convicted, he or she has to be moved another 500 miles or kilometres, or whatever it is, to a detention facility. That is pretty costly. I ask the question and I leave it unanswered: Is that the most appropriate type of sentence for an offender in a remote community, to lift him or her up and take them away from where they are?
We have to do that because there is a mandatory minimum sentence. It is not like we could resort to some other form of appropriate sentencing. Even if everybody in the village believes the sentencing is appropriate if it does not involve mandatory detention, it would not matter because we are passing a law that says there must be a mandatory sentence attached to it. The person would have to be taken away. In any event, that is a fact of life in Canada.
This is really unfortunate if a crime happens in a rural area. I am thinking of first nations communities. I really wish that we and our first nations communities could handle some of these justice matters ourselves and not have the boys and girls in Ottawa imposing mandatory minimum sentences.
One of the sentences in relation to which the government is proposing a mandatory minimum does not involve a few months. A five-year minimum sentence applies to incest involving a child. This is a serious offence. Unfortunately, incest reflects a serious social problem. I question whether a mandatory five-year minimum sentence in every instance, every scenario, every case is appropriate. Five years would be mandated by this new section.
I think we see that in some circumstances the sociology of drug addition, the sociology of alcoholism, the sociology of mental illness, all are factors in some of these cases. Just presuming that we appropriately respond and solve that problem by imposing a mandatory five year minimum sentence, without even know the facts, seems backhanded. It someone's view of denunciation.
I do not for a moment condone this type of criminal activity. It is reprehensible, but I am not so sure that the government's knee-jerk five year minimum is what is appropriate in our system of justice.
Members will have an opportunity to look at this in the committee and we will see what the justifications are.
Another proposed section of the bill seemed like it was concocted in a crime novel, and that is new section 15. It creates a new offence under section 172.2. This is one of these sections where we have to reach back and add in the word “telecommunications”. It states:
Every person commits an offence who, by a means of telecommunication, agrees with a person, or makes an arrangement with a person, to commit an offence...
A whole raft of sexual offences are there. However, the essential part of that is making an arrangement by telephone. By the way, it sounds like the Criminal Code to commit an attempt type offence because the offence actually does not have to happen. The sexual act or sexual encounter does not have to happen for the offence to take place.
In creating the new sentence, the bill removes the defence of whether we knew the person was under or over 18. Some people would say that if we did not know, it would be our own fault. However, do not forget, this offence happens on the telephone.
Then there is another section that takes away defences. It is no defence that the person on the telephone was a police officer or was put up to it by a police officer. That is not a defence, so a police officer can do that. Then it says that it is not even an offence if the person who the arrangement was made with did not even exist if there was a peace officer involved on the other end of this. It is an entrapment machine. We need to have a very good look at this.
I am happy to see this concept of setting up an arrangement or a rendezvous with a young person under 18, then under 16 and under 14, as set out in the section, as a potential criminal offence. I am not happy to see the defences removed. A person might not even know the age of the person. It says that one is still guilty unless one took reasonable steps to ascertain the age of the person. I am not so sure that in a telephone conversation like that, someone will ask for a driver's licence and ask for age. Therefore, this has to be looked at very carefully.
Police officers may feel this will enhance their ability to snare predators and that may well be the case. I do not mind if it does, but, as always, we have to ensure that our Criminal Code provides procedural fairness for everyone, not just the bad guy. There but for the grace of God sometimes go all of us. We never know when we will get caught in a trap, when someone sets us up. I think most of us have seen enough television or read enough novels to know about that.
The last thing I want to refer to is section 26. Again, we are using and reusing terminology—