Mr. Speaker, I am sure that everyone in this House will agree that leaving the scene of an accident where there is death or bodily harm is truly and utterly despicable. In fact, that is precisely why Parliament, in 1999, created a maximum penalty of life imprisonment for leaving the scene of an accident knowing there is death and a maximum penalty of 10 years imprisonment for leaving the scene of an accident knowing there is bodily harm.
These penalties are indeed severe and, quite logically, they parallel the maximum penalties for manslaughter, criminal negligence causing death or bodily harm, and impaired driving causing death or bodily harm. These are all of course very serious offences.
Even if one were to agree with the minimum penalties proposed in Bill C-275, it would be inconsistent to propose minimum penalties for these offences of leaving the scene of an accident without proposing minimum penalties for the other offences that I mentioned. We cannot make seven year and four year minimum penalties for certain serious offences without ensuring that all other similarly serious offences have the same penalties. This bill fails in that regard.
I want to make it very clear to members who have spoken in favour of Bill C-275 that the opposition which they are hearing toward this bill from all other parties in the House has nothing to do with partisan politics. The opposition to Bill C-275 has everything to do, however, with the extremely serious matters of principle and of constitutional law.
In the first hour of the debate, some speakers noted that leaving the scene of an accident was unacceptable behaviour and it must remain a crime. No one condones it. However, speakers from all parties, except speakers from the Conservative Party, appear to agree with the proposals in Bill C-275 that these principles fail the principles of fundamental justice which are part of the Canadian Constitution, like it or not. These are important principles. They are not minor details or troublesome technicalities that could be legislated out of existence with the blink of an eye.
Frankly, the Supreme Court of Canada simply could not uphold in good conscience the validity of this bill. In my view, voting in favour of Bill C-275 would, or could, become a cynical or thinly veiled effort to manufacture a circumstance where it could then be said that the Supreme Court of Canada was thwarting the will of Parliament.
The proponents of Bill C-275 would have us believe that eliminating the requirement of a guilty mind, or mens rea is an easy matter. However, the reality is that when creating a criminal offence there must be an act that is accompanied by a guilty mind. Unlike a regulatory offence where the act in itself is a sufficient trigger, with a criminal offence there must be a mental element that accompanies the prohibitive behaviour. This is a bedrock principle of criminal law and fundamental justice. Bill C-275 proposes to eradicate this fundamental principle when it comes to the offences of leaving the scene of an accident knowing there is death or bodily harm.
There seems to be an underlying theme in some of the speeches supporting Bill C-275 that if we suspect but cannot prove impaired driving causing death or bodily harm by a driver who has left the scene of an accident, we should make it harder on the suspect by throwing out the requirement for the prosecution to prove the mental element of the offence of leaving the scene and get the driver on that issue instead. The prosecution would only need to prove the act of leaving the scene of the accident and the driver would be guilty regardless why he or she left the scene. This is exactly what the bill says as it is drafted.
However suspicious a court might be, our present Constitution tells us that unless the prosecution proves an offence beyond a reasonable doubt, there would be no conviction and no punishment.
The bill appears to be an attempt to punish without having to prove a guilty mind. In cases where the prosecution cannot prove beyond a reasonable doubt, the offence of impaired driving causing death or bodily harm against a driver who left the scene of an accident appears.
Certain members wish to eliminate the fundamental principles of justice in criminal cases, such as proof beyond a reasonable doubt and the guilty mind requirement. If that is their option, the only true option to seek is an amendment to Canada's constitution. Until there is a constitutional amendment, they will not succeed.
When it comes to sentencing an offender for leaving the scene of an accident, knowing that there was death or bodily harm, the judge has the task of setting the penalty from within the range of penalties that Parliament has enacted. The judge must weigh all circumstances of the offence and the offender. All aggravating and mitigating circumstances must be taken into account and if the defence or the prosecution is not satisfied that the sentence is fit and proper, then either may appeal the sentence.
In cases of leaving the scene knowing there is death or bodily harm, the accused has a right to choose to be tried by a judge sitting alone or by a judge and jury.
Back in the era of capital punishment, there was often a suspicion that juries sometimes would look beyond the evidence in proof of a crime to the penalty that would apply upon conviction and sometimes they might refuse to convict.
There is nothing to suggest that judges are incapable of examining the evidence and registering a conviction, regardless of any personal view they may hold about a particular penalty range set by Parliament. I have every confidence that if the minimum penalties proposed in Bill C-275 were enacted and found to be constitutional, then judges would convict where there would be proof beyond a reasonable doubt and they would not hold the prosecution to an impossible standard of proof as a way to avoid imposing the minimum penalty.
I would not speculate on what juries might do. However, I can say that it is their duty to apply the same test of proof beyond reasonable doubt to the evidence, regardless of the penalty that would flow.
I do want to express my opinion that the minimum penalties proposed in Bill C-275 are somewhat troublesome. If the courts were confronted with these proposed minimum penalties, coupled with the elimination of a mental element for the offence, they would have no choice but to find that the provisions could not withstand constitutional scrutiny.
Let me be very frank. Even if I agreed that the proposed minimum penalties were justified and I were voting for them, I would not be so optimistic as to believe they would significantly reduce the incidence of leaving the scene of an accident. People leave the scene of an accident not because they carefully evaluate the penalties at that moment, but because they think they can completely avoid detection and prosecution or they are gambling that they can avoid detection and prosecution.
In closing, I have two things to say. First, I would ask the rhetorical question. Is leaving the scene of an accident, knowing that there is a death or an injury, deplorable behaviour? Of course it is. Second, does Bill C-275 respect existing constitutional principles that apply to criminal legislation? It does not, and I will be voting against it.
