Marlene Jennings

[Criminal Code, May 17th, 2007]

Mr. Speaker, I am honoured to speak today in this House about Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act.

This bill has been brought back to the House with significant changes after being reviewed by the Standing Committee on Justice and Human Rights. But behind the scenes, an unholy alliance has developed between the reactionary minority Conservative government and the NDP. Together, these two parties put back a series of regressive provisions, ruining the good work of the Standing Committee on Justice and Human Rights. I think that the newly amended bill is simply not good legislation.

However, I am happy that this bill has shed some light on the debate on mandatory minimum penalties.

So I am proud to speak, and I invite my fellow members to follow the lead of the Liberals and vote against the bill as newly amended.

The bill the government initially introduced proposed heavier minimum sentences for repeat offences, despite the views expressed by experts on the fight against crime. In addition, the bill even went so far as to add offences unrelated to the crime in question to the previous convictions.

It is important to remind this House why the Standing Committee on Justice and Human Rights so substantially amended the initial bill. The opposition members on the committee were very reluctant to introduce escalating minimum sentences depending on the number of previous convictions.

In undertaking this tack, the committee members were simply agreeing with most of the expert evidence they heard. In the opinion of all the experts, and it is perhaps rather surprising, there is no proof that minimum terms of imprisonment deter offenders who commit serious crimes.

In certain cases, in California, for example, the method seems to have actually been counterproductive. The annual rate of serious crime has risen since this type of sentencing was introduced. This is the conclusion of the recent report by a commission set up to study the California correctional system.

In January 2005, the Little Hoover Commission submitted to the governor of California its report on what it called “California's corrections crisis”. The report highlights the major failure of the Californian “three strikes and you're out” system. It raises serious questions about the Californian model of sentencing, which there is called “determinate sentencing”. Here in Canada, it is called “minimum mandatory penalties”. In other words, its determinate sentence is the U.S. equivalent of the mandatory minimums that the Conservative government wishes to not implement, but to make even harsher and escalating here in Canada.

The report of the Little Hoover Commission of California is clear:

Despite the rhetoric, thirty years of “tough on crime” politics has not made the state safer. Quite the opposite...

California has one of the highest recidivism rates in the nation. Furthermore, Governor Schwarzenegger himself described the California prison system as a powder keg.

Is it not absurd that at the very moment that Americans are trying to fix their flawed system, Canada, under the Conservative minority retrograde government, is trying to copy the American's old and utterly proven to be inefficient model?

The American model of escalating minimum mandatory sentences is a failed model. Why in God's name, for heaven's sake, would Canadians want to follow a failed model? We want to follow models of excellence. The American model of determinate sentencing, and in particular escalating determinate sentencing, which is the equivalent of the Canadian mandatory minimum sentencing or penalties, is a failed model. In fact, since 2003, some 25 American states have eliminated their lengthy minimum mandatory penalties and their escalator penalties.

Criticisms of mandatory minimum sentencing are based on very sound arguments. It has more than its share of drawbacks. Often, and because of the excessively serious consequences it can have, what happens is charges are withdrawn or pleas are modified to get the charges changed and diminished. Equally often, the threat of a mandatory minimum sentence will discourage an accused person from pleading guilty, which obviously results in greater costs and delays for the system.

As well, this type of measure can also make a jury hesitate to convict, not because of the accused's actual guilt or innocence, because the sentence strikes the jury as being unjustly harsh, given the crime committed, given the accused, given the victim and given the real and proven impact on the victim and the community.

Also, it is known that mandatory minimum sentencing seems, as evidenced by the Australian and American experiences, to hit harder at members of certain ethnocultural communities, blacks and aboriginals. That certainly is not an outcome that Canada should be seeking.

Paradoxically, the increase in mandatory minimum sentences suggested in the newly amended bill would have cost Canada's justice system an exorbitant amount of money. Does this government realize that, by proposing to increase the number and length of minimum sentences and decrease the number of conditional sentences, it would have added a huge number of inmates to our already overcrowded penitentiaries, according to its own Minister of Public Safety?

According to Neil Boyd of Simon Fraser University, Canada would have to build no fewer than 23 new prisons to house all these new inmates. At $82,000 a year per inmate, the bill this government initially introduced would have cost Canadian taxpayers an additional $220 million to $245 million over five years.

In addition, this new obsession with sending people to prison systematically will obviously lead to other additional costs, because it is reasonable to assume that, with this attitude, appeals and lengthy trials will become increasingly common. Mandatory minimum sentences are therefore not the best way of dealing with crime in Canada. They restrict judges' discretionary power to look at the particular circumstances of a case. We should use mandatory minimum sentences very sparingly to target specific offences and, above all, we should limit them to first offences. That is what Bill C-82, introduced under the former Liberal government, sought to do.

The whole point of minimum sentencing is its effect on an individual committing a first offence, taking into consideration the impact on the victim of that offence and on the community where the offence took place. It is designed to take the person guilty of serious wrongdoing out of his or her community for awhile in order to prevent that person from committing other crimes, while at the same time ensuring the community is not put at risk again. In such cases, this kind of sentencing serves its purpose very well.

The problem with escalating minimum mandatory sentencing, proposed in the newly amended version of Bill C-10, was that they applied to repeat offenders. What was initially proposed would have forbidden judges, in the case of a recidivist, to tailor an appropriate sentence that took into account the criminal, himself or herself, the particular circumstances and nature of the new crime, the impact on the victim and the community and the background situation and the possibility of rehabilitation.

In the case of a repeat offence, a judge needs to be able to consider all these factors in order to determine an appropriate sentence. With escalating minimum sentences, this is impossible. With this bill, as it has been amended at report stage by the government with the collusion of the NDP, it will now be impossible.

The newly amended bill shows that the government wants to bring its so-called crime fighting strategy into line with the repressive approach favoured in the United States by the very right wing. The Conservative Party is proposing to emulate a model that does not work.

I might add that the NDP's support for this style of justice is baffling, at the very least. Once again the NDP is sacrificing its progressive roots for short term political gain and being the enabler of the right wing agenda of the Prime Minister.

Let us look at a few facts. The difference in rates of serious offences between our two countries is astonishing. For example, according to Statistics Canada, and that is not a left wing organization, the rates for robberies are 59% higher in the United States than in Canada. What about the rates for aggravated assault? They are 85% higher in the United States than in Canada. What about the murder rates? The murder rates are 275% higher south of our border than they are in Canada.

I am sure my hon. colleagues will be interested to learn that a Calgary resident is 840% less likely to be the victim of murder than a resident of Dallas. If we want to compare the degree of safety of our two capital cities, a resident of Washington, D.C. is 2,700% more likely than his or her Ottawa counterpart to be the victim of a serious crime.

I do not know where the government wants to lead us with its copycat, tough on crime strategy, but one thing is certain. These numbers show—

[Criminal Code, May 17th, 2007]

Mr. Speaker, I would like to thank my colleague from the Bloc for his speech. I have a few points to raise.

We, the Liberals, intend to vote against Bill C-10 at third reading stage because we are against the escalating minimum sentences as proposed by the government, with the support of the NDP.

The Bloc sat in the Standing Committee on Justice and Human Rights throughout all the meetings for consideration at second reading stage, and the experts were all but unanimous that, generally speaking, minimum sentences are not effective. Nonetheless, under very specific circumstances, this could be acceptable, but escalating minimum sentences should never be implemented. Since 2003, some 25 U.S. states have experimented with this type of program and have cancelled it.

I am still rather stunned to see that the NDP, after hearing all these expert witnesses, has decided despite everything to form an alliance with the Conservatives—such a regressive party and government—and support this bill and the amendments the government reinstated at report stage. What does the hon. member think about that?

[Government Policies, May 16th, 2007]

Mr. Speaker, when this meanspirited government cut $1 billion from its budget, the court challenges program suffered, Canadian women suffered, and adult literacy programs suffered. To make matters worse, the government failed to determine the impacts its massive cuts would have on these groups.

Even the Commissioner of Official Languages said that the government failed to do its homework. It is on page 6 of his report if anyone wants to read it.

Why is the only minority that the Prime Minister cares about his own Conservative minority?

[Government Policies, May 16th, 2007]

Mr. Speaker, the cuts made by the Conservatives last September had a direct impact on many communities across the country. Not only did official language minorities suffer, but also literacy organizations, volunteers, women, the homeless, children and a large number of other groups. They all suffered because of the Conservatives' terrible policies.

Why is the Prime Minister so determined to go after minority communities?

[Canada Evidence Act, May 15th, 2007]

Mr. Speaker, as I mentioned earlier when I addressed my question to my colleague from the Bloc, the member for the riding of Marc-Aurèle-Fortin, I am very happy to speak in favour of his bill. I will be brief. Perhaps not as brief as you would like, but I will try.

Bill C-426, as the member for Marc-Aurèle-Fortin mentioned seeks to amend the Canada Evidence Act to protect the confidentiality of journalistic sources and the freedom of the press. It would also add a new clause to the Canada Evidence Act that would allow journalists who appear before a court to refuse to disclose information or a record that has not been published unless it is of vital importance and cannot be produced in evidence by any other means.

In addition, the new clause establishes specific conditions that must be met for a judge to issue a search warrant to obtain information or records that a journalist possesses. The bill stipulates the manner in which a search must be conducted.

Bill C-426 also allows journalists to refuse to disclose the source of the information that they gather, write, produce or disseminate to the public through any media, and to refuse to disclose any information or document that could identify a source.

Under the bill, a judge could only order a journalist to disclose the source of the information if the judge considers it to be in the public interest, having regard to the outcome of the litigation, the freedom of information and the impact of the journalist’s testimony on the source.

At present, as the member for Marc-Aurèle-Fortin stated, journalistic freedom is protected by provision 2(b) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of expression, including freedom of the press. However, there is no legislative measure in Canada that allows a journalist to refuse to disclose a source.

Many lower courts in the country have adopted diverging points of view on this question. They generally rule that even though disclosure of a journalistic source could harm the parties concerned, it is often more important to disclose the information before a court. They generally hesitate to compel journalists to reveal information obtained from a source on a confidential basis. Canadian courts follow the precedence established by the decision rendered by a court in Great Britain in the case of the Attorney General vs Mulholland, which states that journalists should not be required to disclose information provided by a source on a confidential basis unless the petitioner can show that the information is relevant and necessary to the conclusion of a case.

As I said in my question for the member for Marc-Aurèle-Fortin, the definition of “journalist” seems pretty broad to me. He suggested a few ways to resolve this, and I am looking forward to discussing this in committee. In fact, that is why I plan to vote in favour of this bill at second reading and why I am recommending that my Liberal colleagues support this bill.

I would like to raise a few points concerning weaknesses in some parts of the English version of the text. I simply wish to clarify this in the hope that, with the support of other members, my colleague will allow some amendments to be made in committee. Paragraph 39.1(7) reads as follows:

A journalist is required to disclose information or a record that has not been published only if the information or record is of vital importance and cannot be produced in evidence by any other means.

The English version of the bill refers to “vital importance”, while the French version refers to “importance déterminante”.

I should point out that the French version of the text provides a much more concise definition of the conditions required for such disclosure. For example, the word “déterminante” refers, I suppose, to the determination of the case, whereas in English, “vital importance” is very vague and much broader. Therefore, I think we need to find another English expression that makes the English version as clear as the French one.

Next, in the introductory paragraph to paragraph 39.1(8), the English text is poorly written.

It would make the subsection much clearer if the term “if” was replaced by “unless”.

The English text also refers to a search that is “unreasonably conducted”. This is a very broad term that has no precise meaning. I have been unable to find any kind of definition that is provided through jurisprudence on this.

Whereas the French version of the bill which refers to “effectuée de façon abusive” is much clearer and there is an abundance of jurisprudence that actually defines what an abusive search would be. We could be using our legislative drafters and experts in committee in order to tighten up the English text.

Subsection 39.1(9) states: “Any record seized...shall be sealed right away and opened only before a judge who shall determine the manner in which the record is to be kept and disclosed.”. In this subsection the English “right away” should be changed or replaced by the term “immediately”. “Right away” is not a term that we would use in legislation. Those are just a couple of examples.

One of the cases obviously that raised this as an issue with the member for Marc-Aurèle-Fortin was the O'Neill v. Canada which made a lot of headlines and received a lot of attention.

As the member knows, it was challenged constitutionally and section 4 of the Security of Information Act was struck down through a court decision, but the act has yet to be amended. Therefore, I would suggest that the member may wish to agree to an amendment which would go beyond the scope of his bill that would include amendments to the Security of Information Act. Given that it is his bill, he could accept the amendment or not.

In the case of O'Neill vs. Canada, the Ontario Superior Court judge struck down paragraph 4(1)(a), subsection 4(3), and paragraph 4(4)(b) of the Security of Information Act as violations of section 7: the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and subsection 2(b).

Justice Ratushny held that these subsections were over-broad, arbitrary, and vague and gave the government an unfettered ability to protect whatever information it chose to classify as unauthorized for disclosure and to punish any violation by way of a criminal offence. Therefore, the relevant subsections were declared of no force and effect.

[Canada Evidence Act, May 15th, 2007]

Mr. Speaker, I am honoured to ask my former minister a question. He was the public safety minister in the Quebec government when I was deputy commissioner for police ethics for the province of Quebec.

My question has to do with the definition of journalist. I would like to know if a definition already exists in any legislation in Canada, either federally or provincially, or if there is any case law that establishes the definition of a journalist.

I must admit, although I am in favour of this bill—and I intend to recommend that my caucus support it and refer it to committee—we have some concerns nonetheless. The definition of journalist, as written in the bill, is rather broad and could even include the distributor or printer of a document produced by a journalist.

I would like to hear the hon. member's response to this.

[Criminal Code, May 8th, 2007]

Mr. Speaker, it is my honour and privilege to announce that the Liberal caucus, the official opposition, intends to support Bill C-299. We believe that this bill addresses a serious issue and that the committee's amendments have resolved the problems with the original version of the bill.

We were very pleased that the member for Edmonton—Leduc accepted the amendments proposed in committee, specifically to change the definition of personal information, as was pointed out by my colleague from Moncton—Riverview—Dieppe in the debate at second reading. The definition that we originally found in Bill C-299, which was taken from the PIPEDA, was not appropriate for the issue of identity theft and pretexting.

We also pointed out that we were a little dismayed that the government was not addressing the issue of identity theft in its entirety. The department has been studying and consulting on the issue for over three years. At least two reports have come out on the issue with regard to the kinds of amendments that need to be brought forward in the Criminal Code and other legislation in order to address the issue in its entirety.

We would have preferred to see that kind of omnibus bill and overall reform rather than piecemeal, but I have to commend the member for Edmonton—Leduc for deciding not to wait on his government, which seems to be dragging its feet, and to move forward at least on this issue.

Liberals are pleased with the amendments brought forward at committee and are prepared to support Bill C-299 as reported back from committee.

[Afghanistan, May 4th, 2007]

Mr. Speaker, it is this government that has not acted with honour. It is this government that is trying to cover up the facts.

We knew that this government had never trusted our courts but it cannot ignore such serious allegations.

What is disappointing is that Canadians can no longer trust their government to tell them the truth. They have to rely on affidavits presented in federal courts to get the full story.

Will this government finally admit that it would have done nothing if not for the case before the courts and—

[Afghanistan, May 4th, 2007]

Mr. Speaker, the government has now been asked 11 times this morning to reveal when it learned about the specific incident that Colonel Noonan testified to before the Federal Court about a specific incident of specific abuse of Afghan detainees and it has refused, systematically, to tell Canadians the truth.

The government still will not tell what it knew about the incident. It will not release the medical record. Canadians cannot trust the minority Conservative government on the Afghan issue.

When will the government--

[Criminal Code, May 4th, 2007]

This is a serious issue. I would ask through you, Mr. Speaker, that the Minister of the Environment stop making comments that tickle my humour and distract me from the points I am attempting to make. I believe I am making them very well notwithstanding his diversionary tactics.

The Liberals approve of the provisions that would strengthen the recognizance sections of the Criminal Code, sections 810.1 and 810.2. We think those are excellent.

We also think that some of the technical amendments or changes are good, but where we think the bill fails is that, one, it does not make a dangerous offender hearing application automatic or mandatory on a third conviction and, two, it does not make the breach of a long term offender order an automatic trigger for a dangerous offender hearing.