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CANADA

Standing Committee on Justice and Human Rights


NUMBER 046 
l
1st SESSION 
l
39th PARLIAMENT 

EVIDENCE

Tuesday, February 6, 2007

[Recorded by Electronic Apparatus]

  (0900)  

[English]

     I call the Standing Committee on Justice and Human Rights to order on Tuesday, February 6, 2007, for a clause-by-clause consideration of Bill C-10 , an act to amend the Criminal Code on minimum penalties for offences involving firearms, and to make a consequential amendment to another act.
    With us is the parliamentary secretary to the minister, Mr. Rob Moore; Mr. William Bartlett, senior counsel, criminal law policy section; and Ms. Julie Besner, counsel, criminal policy section.
    Pursuant to standing order 75(1), the preamble is postponed in our clause-by-clause consideration. We will begin with clause 1.
    Is there any discussion prior to entering into the clause-by-clause consideration?
    Monsieur Ménard.

[Translation]

    Could we ask the department to explain the rationale for this clause, Mr. Chairman?
    Clause 2 of the bill which amends subsection 85(1), since we have decided to defer the adoption of the preamble. Is that right? Clause 1 was in the package we were given. The adoption of the preamble has been deferred. I believe we're moving on from there. Correct?
    Mr. Chairman, I'd like the department to explain to us the rationale for each clause so that we have a clear idea of what we're voting on. Then, we'll proceed to comment.

  (0905)  

    The preamble at the very beginning of the bill is not a clause as such. Clause 1 of the bill amends section 84 of the Criminal Code, not section 85, and has many purposes.
    First of all, clause 1 which proposes to amend subsection 84(5) list those offences for which the penalties would be increased. Tougher penalties are already imposed in the case of certain offences. For example, section 85 already provides for two types of penalties: one year for the commission of a first offence, and three years for a repeat offence.
    Bill C-10 proposes much tougher penalties for a number of offences. There would be three types of penalties: one year, two years for a second offence, and five years for a repeat offence. Two different penalties are proposed for other offences: three years for a first offence, and five years for a repeat offence.
    The clause starts off by listing all of the offences included in Part III of the Criminal Code for which tougher penalties are imposed in the case of repeat offenders. We need to be clear on the definition of “repeat offender“. According to the proposed paragraphs 84(5)(a),(b) and(c), if the accused was convicted in the past of committing an offence involving either the use of a firearm, or where a firearm was present but not used, that offence is deemed to be an earlier offence. The provision goes on to state that the offence will not be taken into account if more than 10 years have elapsed, not taking into account any time in custody.
    The proposed subsection 84(6) expressly states that if the accused has a number of outstanding charges that have not yet been resolved by the courts, as soon as a charge has been entered, it is deemed to be a previous conviction.
    Perhaps I could briefly explain that provision in English.

[English]

     Subsection (6) is an explicit interpretation that if an individual has a number of outstanding charges that have not yet been resolved before the courts, the conviction, as soon as it's entered, is taken into account, regardless of the sequence in the commission of the offences themselves. In the clause-by-clause book, it's described as “ousting the Coke rule”.
    There is a common-law interpretation that generally applies when a person has multiple outstanding charges and faces a higher penalty due to repeat offending. The Supreme Court has indicated that it is possible to exclude that general common-law interpretation if it's done so explicitly in the statute. So that's what subsection (6) does at clause 1 and elsewhere in the bill when an escalating scheme is proposed.
    Thank you, Mr. Ménard.
    Mr. Moore.
    Thank you, Mr. Chair.
    Mr. Chair, I'm wondering, in light of the fact that we heard a lot of the testimony on this bill before the break, and in light of the fact that there are various views around the table—it is an important bill, and it addresses an issue that most of the parties represented here did touch on in the last election as something we wanted to move forward on—I know that opposition parties have raised some concerns with the bill, and in an effort to work together, so at the end of the day there is a product that's going to better protect all Canadians, I'm wondering if we might have some general discussion on the bill and on what opposition members may be agreeable to.
    I know Mr. Comartin has put forward some amendments, which indicates to me that there may be some room to manoeuvre on the bill. If it's the position of the Liberal Party and the Bloc party to simply vote against every clause of the bill no matter what happens, we might as well know that up front; but if there's room to move and if there's room for compromise, I'm wondering if we might have some discussion on where opposition parties would like to see that compromise take place. We'll see if there's an openness to move this forward in that way.

  (0910)  

    Is the committee in agreement for a general discussion, given the fact that we do have eleven amendments submitted by the NDP, specifically by Mr. Comartin?
    Mr. Ménard.

[Translation]

    I would imagine you're going to tell us if , in your opinion, these amendments are in order. The Bloc Québécois has two problems with this bill. We feel that there is little room for any amendments, even though after glancing at it quickly, what Mr. Comartin is proposing appears interesting. I'll have to discuss this with Ms. Freeman and my colleague the whip. All committee members were provided with approximately thirty scientific studies in both official languages which appeared to call into question the effectiveness of minimum mandatory penalties.
    As far as we're concerned, the crux of the bill is the increase in penalties, that is from three years to five years, depending on the offence committed, based on the belief that minimum mandatory penalties have a deterrent effect. However, based on the literature, and on the evidence, both the scientific kind and the testimony presented by most witnesses, we do not believe the committee should be moving in this direction. That's out first point.
    The fundamental focus of the bill is minimum mandatory penalties and people either believe that these act as a deterrent, or they do not. Unlike past situations where a judge always had discretionary authority to impose minimum penalties, minimum mandatory penalties bring into play the science of law.
    Mr. Chairman, is it too early to ask if you consider the amendments of our colleague Mr.Comartin to be in order?

[English]

    I do have a ruling to make on those particular amendments. I know Ms. Jennings is on the list for some comment. I'll take her views, and then we'll look at the amendments, if that's the wish of the committee.
    Ms. Jennings.

[Translation]

    Thank you very much, Mr. Chairman.
    I appreciate the offer extended by Parliamentary Secretary Moore to committee members. It would have been even more interesting had the government made this offer to the opposition parties at the first reading stage, so that committee members might truly have been able to amend the act.
    Since the government only decided to send the bill to committee after debate on second reading and given House procedure, we will not be able to correct the errors contained in the bill. The Liberal Party's position hasn't changed. We are in favour of minimum penalties that directly and effectively target certain criminal offences, particularly offences involving the use of firearms.
    However, it has already been demonstrated that minimum mandatory penalties, when used

  (0915)  

[English]

as a blunt instrument, a sweeping blunt instrument, they can only lead to vast increases in prison populations and a series of unintended circumstances.
    We heard testimony. I was not here to hear the testimony, but I read all of the testimony once I was appointed justice critic. I went through all of that, and the testimony was clear and unequivocal: the presence of mandatory minimum penalties often affects how a crown prosecutor lays charges and conducts plea bargains. That's one. Secondly, mandatory minimum penalties, if they're not done in a very targeted fashion, are not effective and actually become counter-effective.
    So I find it unfortunate that the government, which wishes to appear to the public as a very comprehensive and listening government, did not make the choice to have this referred to committee at first reading, which would then have allowed the committee to actually do the work.
    The government did it, Mr. Chair, with its Clean Air Act. It recognized that its Clean Air Act was fundamentally flawed and therefore acceded to the wishes of the NDP and the two other opposition parties, my own included, to have it sent to committee at first reading. This government could have chosen that; it did not. And in so choosing not to send it to committee at first reading, it literally handcuffed and hampered the ability of members of the committee—including government members, who recognized that there are fundamental flaws in the legislation—to effectively amend it, because the rules are such that we cannot fundamentally alter this bill now that it has been referred at second reading.
    So while I appreciate the offer that Parliamentary Secretary Moore has made to the Liberal members, to the Bloc, and to the NDP, and obviously to those of his own caucus who feel there are fundamental flaws with this bill, it's unfortunate that the offer was not made at first reading, when it could have been taken up and would have been eagerly taken up, I'm sure, by all members of this committee.
    Thank you, Ms. Jennings.
    Mr. Moore.
     Thank you, Ms. Jennings.
    From the government's perspective, three out of four of the parties around the table today were elected in the last election with a mandate in their platform to bring in measures that target gun crimes. Three of the four—the Liberal, NDP, and Conservative parties—all mentioned increased mandatory minimum sentences in their platforms. It is with a clear mandate from Canadians that this bill, Bill C-10, was brought in. It includes targeted mandatory minimum sentences for serious firearms crime, use offences, serious non-use offences, and non-use offences.
    Based on that, that's why we're here today. We've heard extensively from witnesses. I don't think the issue of mandatory minimums targeted at gun crimes is at issue at all among at least three of the four parties, because if we look at what we've been saying all along, it's something we've all committed to do. This bill provides a framework to do that.
    Many sentences are targeted, many different mandatory minimums are in place in the bill. What I'm asking is for Madam Jennings or whoever else around the table to say where they'd like to see a change. We're talking about mandatory minimums and we're talking about firearms offences, and that's all this bill touches on. When you have a commitment to increase mandatory minimums for firearms offences, surely there's something in this bill that has merit; there's something in this bill that mirrors what you would have done anyway, or that was your commitment to do.
    You mentioned targeted mandatory minimums, targeted penalties for gun crimes, so I'm asking: where do you see that taking place in this bill, and where do you see it perhaps going beyond what you would like to do? Perhaps there's some way we as a committee can address that. That's the approach we want to take.
    The difference I see with this bill is that almost everyone around this table came to this Parliament with a commitment to get tough, to increase mandatory minimums on gun crimes. That was the premise, that's the basis, that's the foundation of the bill. We introduced a bill that does just that, and now I'm asking if there's some way you would like to see it changed to accommodate any concerns you have, to bring those forward. What would you like to see in the bill? In your opinion, where does it go too far, and where does it perhaps not go far enough?

  (0920)  

    Thank you, Mr. Moore.
    Mr. Bagnell.
     Thank you.
    I'd like to commend the parliamentary secretary for his attitude at this time. I think that's the way Parliament should work, discussing how we can work together to get something productive done.
    I also think, as he said, it would be good to know. If the bill is going to either pass or fail and that's decided, we don't need to spend a lot of time on debates. So I think it's good having this discussion at the beginning and finalizing it. And what people have said in the past I don't think always determines the ultimate outcome—as you can see, for instance, on income trusts.
    I think our job as a committee and the reason we have expert witnesses—and we had a long procedure here, as Ms. Jennings said, a very detailed procedure—What parliamentarians have to do in the final outcome is the right thing. As you know, we're dealing with dozens of bills just in the justice committee, let alone in Parliament. The way we find the answer to things is to have expert witnesses come and tell us things, and then, based on that, we make our decision as parliamentarians on what's best for Canadians.
    I think any rational person who listened to the witnesses who came here, witness after witness after expert witness, heard them say these mandatory minimums, as Ms. Jennings said, first of all, don't work, and secondly, can be counterproductive and can produce more criminals under certain circumstances.
    This bill does not make it any tougher on crime or on people with guns, because the maximums are not being increased. So whether or not this bill is passed, the judge will still have the same severity of punishment that he can give. It's not being increased. There is nothing more severe he can give. He can still give the maximum penalty when it's warranted to protect the citizens.
    As one person said during the debates, they've never seen a bill that had so much scientific and knowledgeable opposition to it, so I would find it unconscionable as a member of Parliament to actually totally ignore that opposition and vote for the concept. I came into the committee with an open mind at the beginning, but doing my job as a parliamentarian and listening to the evidence, there's no possibility that I could support the concept.
    Thank you, Mr. Bagnell.
    Mr. Comartin.
     Thank you, Mr. Chair.
    I put forth the amendments because I believe they reflect the evidence we heard. Unlike Mr. Bagnell, I came in with my mind made up, and the evidence I heard simply confirmed that.
    Indiscriminately used mandatory minimums have a minimal effect. I think we heard that repeatedly. To a significant degree, it was the position my party took during the election, and it's one we hold today.
    There is an approach that does work in terms of dealing with crime, but it's a variety of approaches. Obviously, the greatest emphasis has to be on prevention. I'm critical of the government for not doing anywhere near enough, but then I'm critical of prior governments for not doing enough in that area and in some cases cutting back on programs that would have in fact helped on prevention.
    Obviously, the role of enforcement and policing is also crucial. In terms of evidence, how many times did we hear the statement that the greatest way to stop crime is to have society as a whole and the individuals in society who are inclined to commit a crime know they're going to get caught? The policing and enforcement part is a crucial part. Again, I'm critical of both the current administration and the prior one for not doing enough to enhance the ability of our police and the sheer number of police on the street.
    I think the evidence we heard from Chief Blair from Toronto was crucial in that regard. It showed what can be done if you take a creative approach to policing and apply extra resources, as he did in those two situations where he was after specific street gangs in his community and effectively shut them down .
    There is also a third prong to the approach, and it's the role we have to play as legislators, as people who make the law for this country. It's what I call the condemnatory aspect. For example, as we did on impaired driving, we have to express that currently there is a serious problem in this country with this particular crime. We did it with impaired driving, and we did it fairly effectively. We applied the other two prongs as well. We put in extra effort from our police to stop impaired driving. We did a lot with groups like MADD and the police associations. They went out of their way to educate the public and did a great deal to prevent that particular crime by way of education and prevention.
    We all recognize, and we heard it repeatedly from the evidence, that we have a specific problem with gun crimes in this country, particularly with handguns in our major cities. To some degree, and I would say to much of a degree, this bill expresses that condemnation as to that particular crime, and that we are serious about dealing with it.
    I must say, Mr. Chair, if I had my druthers, I would like to see a timeline on a number of these provisions of the mandatory minimum increases. I'd expect that over the next five or ten years, as we approach these particular crimes with greater fervour, we wouldn't in fact need these sections in five or ten years, because we would have shut down the problem to a significant degree.
     I'm optimistic that with the police, like Chief Blair and a number of the other police officers we've heard from, we will eventually shut this down, but we have to do our part. I think our part is to express that condemnation for gun crimes and that we're simply not going to put up with it.
    In that regard, I brought forth these amendments. I believe and my party believes that we cannot completely do away with judicial discretion. Much as we did in Bill C-9, I'm proposing that, both in the first and the last amendments I put forward today.

  (0925)  

    I want to apologize to the committee. I really expected that I would have these for you by Monday morning, but one of my staff had the flu last week. I don't want to give him the entire credit, because I'm going to take some credit myself for these amendments, but he actually was the one who was shepherding them through, and unfortunately he was out of commission for a full three days. So I want to apologize that I didn't get them to you by yesterday, as I indicated I thought I would be able to.
    What I've put forward in the first amendment and the last one is to reserve, in exceptional circumstances, judicial discretion. I think it's important that we express the condemnation, but we reserve for those exceptional cases where the mandatory minimums simply don't make sense and would result in an injustice. I've done that in those two.
    The first one I just want to note as an example of why we need to reserve judicial discretion. In the amendments we're making to proposed new section 98.1, in clause 9, there is a particular problem, and it reflects, I suppose, the nature of the demographics of our country. We heard evidence that B-and-Es for the intent of stealing a weapon are becoming quite common in our major cities. But we also heard, in particular from Saskatchewan, that within the first nations, in particular in the north of the province, they have a number of these crimes—and it's mostly first nations—where they break in to steal the weapon to go hunting. That's all they're using the weapon for.
    It's a common enough crime, perhaps arguably more common than the break and enters that we have in our major cities to steal weapons, but we've imposed on that a three-year and five-year mandatory minimum. Unless we reserve the judicial discretion, which is what my first amendment is intended to do, we will have an unintended consequence and one that would not be desirable—at least in my position. So we need to retain that discretion for our judges in exceptional circumstances.
    I want to comment on Ms. Jennings' position. It's very well taken. It would have been much better if we had been able to approach this after first reading, rather than after second. Having said that, I recognize we are bound by the rules, but it is ultimately, Mr. Chair, in your hands to make a determination as to whether my first and last amendments are out of order as being beyond the scope of this legislation. Taking a broad view of that, you could rule these in.
     I have to say, in addition, perhaps to the parliamentary secretary, that obviously not only at this committee but in the House, if we had all-party support for these amendments, they would go through. The Speaker would not rule them out—and I'm saying that just from practical experience with the current Speaker. We could put them in as amendments to this legislation to provide some cover from what I see, in some cases, as an extreme usage of the mandatory minimums, and allow our judges to make sure that justice is done in all cases in those circumstances where it's inappropriate to use a mandatory minimum.
    So we can do that. We can do it here, and we can do it through our House leaders, and I guess our party leaders, by reaching an all-party agreement on this. That's the only solution I can offer you. I recognize, Mr. Chair, that even if you rule in favour of these being in order, the first one and the last one, we will still have a problem when it gets back to the House. But I would urge you to rule them in order at this time and let us deal with them as parties in the House.
    The final point I will make in terms of the amendments is that the balance of my amendments, the other nine, are simply reducing the usage of the mandatory minimums in the ten-year category. I'm firmly of the opinion, and I know Mr. Thompson will love me to say this—and I'm not saying it just to irritate him, Mr. Chair, I want to be clear—that these will not survive a charter challenge. I think our courts, all the way up to the Supreme Court, have made it very clear that somewhere around seven or eight years is the absolute maximum they are prepared to accept that does not breach the Charter of Rights and Freedoms.

  (0930)  

     I think it behoves us as a committee, as legislators, that we don't pass laws that we know in advance are not going to survive either a charter or a constitutional challenge, whether it's in the area of criminal law or in a number of other areas. I think that would be irresponsible on our part.
    The other nine amendments in effect eliminate the use of the ten-year mandatory minimums, so we'd only have two levels. We'd have the five-year sentence on the first offence, and seven years on any subsequent offences, whether two or more.
    In that regard I would point out that in the material we got from Juristat, there were 14 offences in 2004-2005 where a person used a gun more than twice. We're not talking about a great number. In addition, Mr. Chair, knowing the judges I've practised in front of, I would say that in most cases, if you're on your third, fourth, or fifth offence with the use of a weapon, you're looking at ten years in any event. And oftentimes those crimes are coupled with other charges, and the person oftentimes ends up incarcerated in that range of ten years.
    Those are my comments. Perhaps to summarize, I think what I've tried to do here is to make this work, to make it palatable to those of us who have a knee-jerk opposition to the use of mandatory minimums, but also to take into account the responsibility we have to express our revulsion at the use of guns in crimes in this country, to reflect the fact that the country is very concerned about this problem and that we're going to condemn the use of guns in this fashion.
    Thank you, Mr. Chair.

  (0935)  

    Thank you, Mr. Comartin.
    Mr. Murphy.
     Mr. Parliamentary Secretary, it's puzzling to me why you're making this offer at this time. I take you at your word and in the best of faith with which the offer has been presented. Echoing what my colleagues have said, we can't walk away from mandatory minimums; I gather they've been on the books since 1996. We've studied them, and they've been effective. The idea was to ratchet them up in appropriate areas and to meet the concerns of citizens across the country that there seems to be a rash of gun-related crimes. On the other hand, you've gone too far in this bill, which was what virtually all of the witness testimony said. I never saw any wavering from anybody. I would not expect Mr. Thompson to waver; he stuck to his guns totally—pardon the pun. But the minister, the previous minister, never wavered, and you never wavered in any of the discussion made here. Now we're talking at the eleventh hour of an offer to save the bill, which might be in jeopardy.
    I guess what I'm asking quite bluntly, Mr. Parliamentary Secretary, is if this is a real offer—again I take you as a gentleman and the parliamentarian you are—are you prepared to look at, for instance, Mr. Comartin's amendment, the last amendment to subsection 718.3 of the act, which restores some judicial discretion, which we've been very adamant about? We've been very adamant about the quality of our judges and the importance of judicial respect and discretion. Are you prepared to look at appeasing or addressing the issue with respect to the unique situation of over-represented incarcerees, our aboriginal population? Are you prepared to look at anomalies like the paucity of provisions for repeat crimes involving shotguns or long guns? Are you prepared to look at the disproportionality of ten-year sentences being subject to charter challenges and therefore the possibility of your new law, which makes great news but bad law, being struck down by the courts eventually?
    How open are you to changing your long-held view that this was just a perfect law when first introduced?
    Mr. Moore.
    Thank you, Mr. Murphy, for that question.
    I think this bill would make good law. Certainly with the mandate we all have here in Parliament—except the Bloc, I will say, were not elected on the same mandate that the rest of us were—The Liberal platform said that a Liberal government will reintroduce legislation to crack down on violent crimes and gang violence and to double the mandatory minimum sentences for serious gun-related crimes. In fact our bill, by the measure of the Liberal platform, doesn't even go far enough. With that said, we've introduced a bill that increases mandatory minimum sentences for violent gun crimes. It also targets some other crimes committed by gangs, committed with a restricted or prohibited weapon.
    To answer your question, yes, there's an openness to look at amendments to the bill. At the end of the day, I would rather have a bill that goes a step in the right direction—maybe not as far as I would like to see, but this government would like to have a bill in place that protects Canadians. We are open to feedback from opposition parties. I'm looking at the amendments that my colleague Mr. Comartin has put forward. We are open to hearing your suggestions too. We've put the bill forward; we've heard from witnesses. The basic premise I operated under was that based on the commitments that were made, the Liberals, NDP, and ourselves, the direction of the bill was a step in the direction of keeping our campaign and platform commitments. It might not be exactly how you would like to do it, but the framework is in place. What I'm asking, genuinely, is where would you like to see a change, and can we, as a committee, accommodate that? In doing our work with this bill, can we come up with something that will pass muster for a majority of the committee?

  (0940)  

    I don't want to be jumping ahead, but 718.3, putting back in some judicial discretion, which is proposed by Mr. Comartin, if you are now in favour of that, and it's ruled out of order, where does that leave you as the steward of this bill?
    We're going to look at each one of the amendments. I'm not saying that we agree with all of them. We've got the basic mechanism, and I'm asking, where would the Liberals like to see some changes but still, at the end of the day, have something that fulfills all our platform commitments to Canadians to target serious gun crime? Maybe your definition of serious gun crime is slightly different from mine, so we're open to hearing suggestions from opposition parties.
    We're open to you being open.
    Thank you, Mr. Murphy.
    Mr. Ménard.

[Translation]

    The role of legislators is always to pass laws while taking into account the most convincing and conclusive facts possible. While Bill C-10 was being studied, we asked the Justice Department on numerous occasions to tell us what the impact of minimum mandatory penalties would be.
    Obviously, everyone pointed to the contradiction between the desire to fight crime involving the use of firearms and the elimination of a mechanism to publicly control firearms, namely the gun registry. This stands as a major public policy contradiction, but that's not the focus of our attention today.
    We have before us Bill C-10. Can the Justice Department and its research and policy division produce some studies that might convince us that minimum mandatory penalties really do have a deterrent effect?
    May I remind you that draft legislation introduced by Minister Allan Rock to establish the gun registry provided for a certain number of minimum mandatory penalties. Why are we revisiting this subject today? The department does not have a single serious study in hand to convince parliamentarians that this is a step in the right direction.
    Mr. Chairman, the committee has heard testimony from a number of criminologists. The clerk has forwarded some studies to us. Based on all of the information that we have received, aside for law enforcement officials, few people said that minimum mandatory penalties had a deterrent effect. Yet, this goes to the heart of the bill that we are being asked to vote on.
    I am very concerned about crime. In my opinion, the best way of fighting crime is to give police officers the proper investigative tools. The Bloc Québécois is planning to introduce a motion calling for police officers who deal with street gangs and organized crime to be given additional resources to do their job.
    Give us some additional conclusive evidence that minimum mandatory penalties do help you to reach your objectives. We would then be better able to assess the situation. However, based on the testimony given here, we cannot make this finding. I don't believe that you have any serious studies to share with us. If you did, I'm sure you would have shared them with us by now.
    So then, Mr. Parliamentary Secretary, do you have any probative, conclusive studies that could guide us in our work?

[English]

     Mr. Moore.
    I thank Mr. Ménard for the question.
    I think we're at the stage now where we've heard testimony from people who were in favour of the bill and who were against the bill, and I think most of us have drawn our conclusions.
     I don't have any new evidence to present to you today. We're at the stage of fine-tuning the bill, amending the bill, passing the bill, or defeating the bill. We're at that stage now. Hopefully, we've all drawn our conclusions.
     I'm seeking to know whether this is something we can work on together so that at the end of the day we have a better law in place for Canadians and for public safety. Or is it something we simply want to get over with and vote on?
    I have expressed that the government is open to hearing amendments submitted by Mr. Comartin, and we're open to hearing amendments from the Bloc and the Liberals. If there is a sincere desire to put some amendments forward, then maybe, Mr. Chair, we can find some way to accommodate that. We've all had time to hear witnesses. But I do want to express that there is a sincere interest in hearing opposition ideas about making the bill better.

  (0945)  

    Thank you, Mr. Moore.
    Certainly opinions have been expressed quite clearly, I believe.
    Mr. Petit.

[Translation]

    I want to thank the Parliamentary Secretary to the Minister of Justice for joining us today for the clause-by-clause study of the bill.
    I'd also like to thank Mr. Comartin from the NDP.
    Like your colleague Mr.Martin in the case of Bill C-2, you have done an excellent job. You have a small team, but you have done a fine job. As a new MP, I appreciate your work and I congratulate you.
    As for whether or not we have heard from enough witnesses, let me relate a few facts to you. I'm from Quebec and three Quebec representatives are seated here at this table. Our provinces has been the scene of the most serious offences committed with firearms. There have been three cases of mass murder.
    I don't need to hear from a psychologist or a sociologist to gain a better understanding of the problem. Here are the facts: there are 34 active street gangs in my colleagues' ridings. We've been told by people that eleven-, twelve- and thirteen-year olds are carrying handguns. These are the facts. I don't need a sociologist to tell me more. I need to know how my constituents will be protected. We have a problem in Montreal and, in my case, in Quebec City. If we don't resolve it now, I don't want to have on my conscience a failed arrest because we didn't do our job here. It's our problem.
    That's why I'm thanking Mr.Comartin. His party did an equally fine job on Bill C-2.
    The other parties are always against us. The Bloc Québécois and the Liberals always join forces. Only the NDP seems to take a logical approach and to get results. Were it not for the NDP, BillC-2 would not have been adopted. We have the NDP to thank for that .
    Today, we have some facts. It's time to be logical and to stop our partisan bickering. Let's ensure that no one is killed tomorrow morning because we failed to fix the problem.
    That won't change anything, as far as the bill is concerned, Daniel. They are not demagogues. It makes no difference, as far as the bill goes.
    An hon. member: That's totally false.
    They are not demagogues.

[English]

     Order, please.
    Mr. Petit, continue.

[Translation]

    I didn't interrupt you when you were talking, sir.
    No, but you've made some accusations that smack of demagogy.

[English]

    Mr. Petit, are you finished?
    Yes.
    Thank you.
    Mr. Thompson.
     Sorry, I missed that exchange there. I didn't get the interpretation. That's too bad. I like good exchanges.
    I'd like to thank the parliamentary secretary for reminding us of the platforms that were struck during the election. This is because I'm finding it really hard to understand, after this period of time, that when I stood on the stage in the campaign and I laid out our platform quite clearly, which I believe didn't even go as far as we'd like to have seen, but I was satisfied with Bill C-10—But when we talked about that platform—and I'm always looking forward to a good debate at election time with my NDP friends and Liberal friends, on justice and law and order—when it came to this issue they made me look like a wussy. They were saying he's right on; we happen to agree with Mr. Thompson on that; we agree with Mr. Thompson. That was the Liberal and the NDP candidate. Maybe they'd like to have their names, so they make sure they don't run again. How dare they support this unwavering old cowboy from the west? He's right. Mr. Comartin is right. I am unwavering because that was very appealing to the public.
    It is the public we're here to serve. I constantly hear Mr. Ménard indicating what our duties are in terms of providing legislation. I'm well aware of our duties. But I believe the first and most primary duty that we have as elected people is to provide protection to our society. That has to be priority number one. But I keep hearing these other things that seem to take priority over that, like giving more discretion, like making sure it passes the charter test. Are we going to make protecting society a high priority? I think it ought to be. I know the public would certainly want us to do that.
    But we enter into these debates about we have to do this because we have to make sure the judges have discretion, or we have to make sure it passes the charter test. I don't believe the inventors of our charter intended for that document to be a hindrance to any justice and law and order at all. I don't think that was their intention at all. Yet it seems like those kinds of things are always brought forward and thrown into our face, even though, during the election, all the candidates, including the Liberal and the NDP, were quite excited about this kind of legislation being possible.
    Then when I get here and I hear what I'm hearing throughout this last year, I'm surprised. What happened? What happened to the desire in the hearts of the elected people to do something about guns and protecting society? I think these debates and these discussions are futile. Either we're going to get at doing the job of protecting the people, as we said we'd do, or we're going to sit around here and debate whether this judge ought to have more discretion, or that judge ought to have more discretion, or is it going to pass the charter test? Those things are not the priority. The priority is to protect our young people, our kids and our families and our women and children. That's our duty. And these kinds of discussions that lead off into these other things just irritate me.
    And, Mr. Comartin, you're correct: I don't waver. We have a job to do, and that's to protect society. Let's not waver because of these other kinds of discussions.

  (0950)  

    Thank you, Mr. Thompson.
    Ms. Jennings.
     Thank you, Mr. Chairman.
    When one listens to certain members of the government, one would assume that right now, under our Criminal Code, there are no minimum mandatory penalties, and in particular none with regard to criminal offences committed with firearms.
    In fact, members who premise their comments so that people who are watching and listening to this session will believe that there are none—that there are no criminal infractions and sanctions and penalties and minimum mandatory penalties with regard to crimes committed with firearms as we speak, right now, in the Criminal Code--are doing a disservice to the Canadian population.
    I'm sure the members—Mr. Thompson and Monsieur Petit, and Mr. Moore himself—have read the Criminal Code and therefore know very well that you already have, for instance, section 85, “using firearm in commission of offence”, and that does not include serious-use offences such as attempted murder, discharging a firearm with intent, sexual assault, aggravated sexual assault, but just use of a firearm in the commission of an offence other than those serious uses in assaults. There is already a first-offence minimum and there's a subsequent-offence minimum. We have section 95, “possession of restricted or prohibited firearm with ammunition”. There is already a mandatory minimum for that offence.
    One can go through every single section that Bill C-10 amends and find that in most of them there are already mandatory minimums. In creating higher mandatory minimums and second- and third- and subsequent-offence mandatory minimums, the one thing Bill C-10 accomplishes is the complete removal of the discretion of a judge for subsequent offences.
    It also creates two new offences: breaking and entering with an intent to steal a firearm, and robbery—which is under section 343—with intent to steal a firearm. Those two new offences were actually introduced in Bill C-82 of the previous government.
    In relation to those two new offences Mr. Comartin makes the point very clearly, as I believe Mr. Murphy did, that if there are mandatory minimums and the judges have absolutely no discretion, it could have a serious negative impact on our aboriginal communities.
    So, first, I would ask the members, when they are speaking to Bill C-10 and criticizing the Liberal Party of Canada, the Bloc Québecois, and the NDP, to please not do so in a way that would lead Canadians to believe that the current law has no mandatory minimum penalties for criminal infractions committed with firearms, because it does. That's the first thing.
    Second, I would also ask members when they are speaking to this to not lead Canadians to believe that the laws on the books as they are now are not being enforced or are not being used, because they are in fact being used. Law enforcement will tell you that very clearly.
    So don't use your ideological bent to push it. This committee heard scientific fact, based on scientific study. Now, if a member wishes to throw that out the window and base his or her voting intention and work here in the House of Commons on the subjective and the emotional, fine; that is your right, but say so in the beginning. Say that you do not base your decisions as a member of Parliament on fact, proven fact, scientific fact; you care nothing about science; you care nothing about accurate, proven fact; you care only about emotion and subjectivity. Then we know what we're dealing with.

  (0955)  

     Thank you.
    Thank you, Ms. Jennings.
    Mr. Brown.
    Thank you, Mr. Chairman.
    I'm certainly a bit puzzled to hear some of the comments from the official opposition about misleading. I know that many members of the government have mentioned throughout the hearings—I realize there have been some changes in the Liberal composition of the justice committee, but we've repeatedly raised that there already are minimum penalties, and it's simply a natural evolution on the success of those initiatives.
    What I find disingenuous, Mr. Chairman, is that at the same time we hear shouts from the official opposition that we can't limit judicial discretion, they're saying we already limit judicial discretion. So you can't be for and against the same concept. You can't be saying we have minimum sentences that are great, and that work, while at the same time you're saying we can't entertain any more, because they don't work.
     We do limit judicial discretion in this country. It has worked. It has been successful. We've heard testimony from law enforcement saying how it has worked. To hear someone say that we need to listen to law enforcement, when their very own policy propositions are a complete contradiction to what every law enforcement person who has come before this committee has said, is surprising, to say the least.
     Listen to what the Canadian Police Association has said. Listen to what Bill Blair has said about minimum penalties. It's comical to hear a member say that we should listen to law enforcement. They may not have been here when law enforcement made their comments, but they should certainly do their homework and listen to what those comments were.
     I would really hope that every member of this committee would recognize that we have a duty to make this Parliament work. We're hearing that openness from Mr. Moore. We're hearing that openness from Mr. Comartin. Obviously, the Bloc have their objective, and certainly they've been frank about it. They've been honest about it. It's not to make this country work. It's not to improve current laws. But certainly we would expect the official opposition to work with other federalist parties to have openness, to make this Parliament work, and I sincerely hope we'll see a change in their tone. For them to hang their hat on the limiting of judicial discretion is simply a disingenuous concept.
    We already limit judicial discretion in this country. We have maximum penalties. We have minimum penalties. We've heard that in testimonies. It's time to decide whether we want to hang our lot against a law that Canadians resoundingly voted for and expected all parties, save the Bloc, to work for or to simply play politics. Those in opposition to this law are misleading their constituents and playing politics.

  (1000)  

    Thank you, Mr. Brown.
    I have five speakers on the list. You're one of them, Mr. Ménard. I trust it's the committee's desire, after we go through these five, to cut it off.
    No, you're on the list too, Mr. Murphy.
    I want to be off the list.
    I'll include the existing list that I have right now, and I'll leave the final comments to Mr. Moore, if that's the committee's desire. Is it? It is.
    Mr. Lee.
    Either we're going to go to clause-by-clause, or we're going—
    We're going to clause-by-clause, as soon as these speakers are finished.
    Okay. That may not be the best approach, but members will decide and let the chair know what they think. It's my perception that if we proceed with clause-by-clause today, this bill will get very rough treatment.
    Thank you for your perception. Did you have something else you wanted to add?
     I certainly did. I don't think public policy should be driven solely by campaign rhetoric. Referring back to rhetoric in a campaign, which two or three members have done, is not helpful. Our job here is to make good public policy, good legislation, and I think all the members around the table want to do that, not simply emulate rhetoric that occurred in the heat of a political campaign, driven by events that most of us didn't have much control over. So I'm firmly focused on that.
    The one point I want to make is that this bill would increase the frequency and length of incarceration for people who are convicted. But you don't get a conviction and you don't get a sentence of any nature until you have an investigation and enforcement and a conviction. If this bill goes ahead, that's one thing. If this bill doesn't go ahead, I would challenge the government to take all of the money that it had budgeted for increased incarcerations and make it available to law enforcement, at least for gang-related or organized crime type of enforcement. The police have made that very clear, that they can't fight organized crime on the property tax base. Cities can't do it. I challenge the government to finance, underwrite, help to pay for the kind of police enforcement that Chief Blair from Toronto talked about, witnesses from Vancouver talked about, Montreal talked about, and look for public policy payoff in increased safety from increased enforcement by the professionals who know how to do it, not from politicians who know how to do the sentencing math and just increase the sentences. The people we're going to be sentencing are people who are already going to be sentenceable in front of the courts, because they will have been tried and convicted of an offence.
    So I challenge the government to do that. And I regret that this bill and other legislation—I'll end with this—were introduced by the government. It came out of campaigns, a campaign rhetoric scenario; they were introduced by a justice minister who's no longer with us, probably because he was too much by half. You might wonder why we have a new justice minister now. The reason may be buried in what we're trying to accomplish here today. As one member, I'd be prepared to spend more time trying to salvage what's here, but if it can't be materially substantially changed, I'm going to find if awfully difficult to support it going ahead as a whole.
    Thank you.
    Thank you, Mr. Lee.
    Mr. Ménard.

[Translation]

    Mr. Chairman, I have to say that I am saddened by Mr. Brown's comments. I think he should be careful before saying such things. As I see it, the Bloc members have always made an exemplary contribution, both in the House and in committee.
    First of all, we supported BillC-2. I don't see how Mr. Petit can say that we opposed this initiative when we supported it. We wanted to hear from as many witnesses as possible, given the importance of this legislative measure.
    Secondly, I have nothing to be ashamed about in terms of my contribution as a member of this committee. Nor does my colleague Mr. Marceau. We backed 60% of the previous government's bills. We supported a number of bills and our goal has never been to prevent Parliament from doing its job. Quebeckers are taxpayers and they elected us to represent them in this forum. I trust this is the last time I have to listen to the kind of rubbish that Mr. Brown spouted, namely that we don't want Parliament to work. That is a baseless charge. This is not our philosophy and we are not negative individuals acting for no good reason.
    Thirdly, Mr. Chairman, contrary to what Mr. Petit said, Quebec is not the province with the highest number of murders. According to the statistics compiled by the Canadian Centre for Justice Statistics, that dubious honour goes to Toronto.
    I also think we need to be careful about ascribing motives to people. Let me repeat, to you as well as to the Parliamentary Secretary: we have been presented with some serious scientific studies. Admittedly, emotional variables are important to a researcher. We're not claiming that these mustn't be factored into the decision-making process. What I'm saying to the government is that this bill is illogical.
    It's illogical because when Allan Rock tabled the bill to set up the gun registry, he included provisions for minimum mandatory penalties. If, as Mr. Petit, Mr. Brown and Mr. Thompson claim, minimum mandatory penalties were the key to protecting Canadians, we would not be revisiting the subject, since they have already been in place for a decade. This has nothing to do with it, as we well know. Minimum mandatory penalty provisions won't stop people from committing crimes.
    Are we saying that people shouldn't be incarcerated? Of course not. At times, as a society, we have no choice but to lock people up. However, let's stop acting like demagogues and splitting people into two camps, with those who want to protect Canadians on one side, and those who do not on the other.
    I want to protect Montrealers, the residents of Hochelaga—Maisonneuve, Quebeckers, Calgarians and the people of British Columbia. However, I want to see some probative, conclusive data. We heard from representatives of the Association of Chiefs of Police and while I have a tremendous amount of respect for them, besides which I have a brother who is a police officer, if they could suspend the Charter, I think in some instances they would do just that.
    The difference between parliamentarians and those who do not serve in this forum is a belief in the principle of balance. This principle is not on the table and it is our responsibility as parliamentarians to ask questions.
    Mr. Chairman, of all the witnesses who appeared before us, with the exception of law enforcement officials and representatives of conservative research institutes from Western Canada—and these people are not card-carrying members of the Parti québécois, the Liberal Party or the NDP—, none was a criminologist. There are people who have the specific job of doing research. Their work is publicly funded. Not one single researcher, and that includes individuals under contract to the Justice Department, told us that minimum mandatory penalties would help us achieve the objective sought.
    I'm not saying that researchers are always right. As parliamentarians, we have a responsibility. We're saying that the Criminal Code makes provision for minimum mandatory penalties—

  (1005)  

[English]

     Wrap it up, Mr. Ménard, please.

[Translation]

    I'm not finished. There are no time limits during clause-by-clause proceedings. When I'm done, I'll let you know, Mr. Chairman.
    Not one of the researchers who testified was able to convince us that minimum mandatory penalties had any beneficial effects. When you ask us to vote on a bill, it's our responsibility as parliamentarians to have a good grasp of the issue. It makes no difference to me to know the Conservatives campaigned on this issue. If that's their only argument, then I would vote against the bill. Yours is a minority government, which means the majority of Canadians did not entrust you with a mandate to govern the country.
    Political parties propose sound measures, and some that are less so. You were elected and we were elected, and we need to respect that. Again, Mr. Chairman, we need to put an end to this demagogy, to this contention that some parliamentarians are less concerned than others about public safety.
    What's important to me—and I'm speaking more directly to my friend Mr. Petit—is that police officers be given more substantial means with which to conduct investigations. Mr. Petit rightly pointed out to us that there are 38 biker gangs in Canada, not to mention 300 gangs with 11,000 members.
    Officials from the Organized Crime Prevention Bureau gave testimony before our committee and announced that they had successfully shut down the Hells Angels. Half of the Hells Angels in Quebec are behind bars, but not because of the minimum penalty provisions in the Criminal Code. They are behind bars because of extended electronic surveillance warrants and because more probing investigations were conducted. These are areas on which I want to focus. If the government wants to bring in draft legislation which would help police officers improve their investigative methods, then we will move quickly to pass these bills.
    I asked that we look into the reasons why Bill C-53, with its reverse onus of proof provisions with respect to proceeds of crime, has not yet been applied. Instead of voting on minimum penalties that we know will not have a deterrent effect, in my estimation, it's far more important for the committee to understand the rationale for the reverse onus of proof provisions with respect to proceeds of crime involving some of the most hardened offenders. Yet the RCMP has not yet been able to present a test case.
    Mr. Chairman, we need to be courteous and respectful of one another. We are all concerned about people's safety. No one here has cornered the market on wisdom.

  (1010)  

[English]

     Thank you, Mr. Ménard.
    Mr. Bagnell.
    Thank you, Mr. Chair.
    I agree with Mr. Thompson that our job here is to make Canadians safer, victims safer, citizens safer. After listening to witnesses, that's exactly what the Bloc and the LIberal positions are trying to do. I think the Conservatives, if they're very serious about being tough on crime, should listen to the witnesses and act accordingly. The witnesses made it clear that the things that prevent crime are, first of all, the crime prevention projects. Therefore, the Conservative members should tell the Minister of Justice not to leave the crime prevention projects on hold. For the better part of a year they've been on hold and projects have not been approved. They've been proven to reduce crime in the past, and now they're just holding off on all those projects and won't approve them.
    On the aboriginal justice strategy, they should tell their minister and the Minister of Indian Affairs to re-approve that. It's winding down nine projects in my riding alone, and that is one of 308 constituencies. It's done a great job in reducing crime. They should tell their ministers to move on those fronts that witnesses say work. They should spend some energy on the root causes of crime, which witness after witness, including the chief of the Toronto Police, said is a very important determinant in reducing crime. And they should work, as Mr. Lee said, on increasing the police with the money, as opposed to incarceration. The police said that as well. The scientific witnesses explained that it's the deterrence of the police that reduces crime.
    I think if the Conservatives seriously want to be hard on crime then they should, as Mr. Petit said, be non-partisan, and should, as Mr. Brown said, not play politics and should listen to what witnesses said: If you pass this bill you're going to be soft on crime. The witnesses made it quite clear that everyone who goes to prison is coming out, and they come out more likely to be a criminal with the longer sentences that would be forced on judges by this if do not have the discretion in certain circumstances to allow people to be safer with better treatment, longer treatment, different types of treatment. If you remove that discretion there will be more of a chance for victims to be reoffended against, and you're making society more dangerous. The vast majority of witnesses made it quite clear that if you pass this bill you'll be softer on crime, you're going to make society more dangerous, more dangerous for citizens, and more dangerous for victims to be reoffended against.
     I'd ask the Conservatives to do some soul-searching, do what's right, be hard on crime, and defeat this bill.
     Thank you, Mr. Bagnell.
    Mr. Moore.
    Thank you, Mr. Chair.
    I've been listening with interest to everything that has been happening. To address what Mr. Bagnell said, I look at that as being a bit distinct. We're providing funding for policing, preventative measures, youth at risk, and so on. But dealing specifically with Bill C-10, Mr. Lee mentioned campaign rhetoric; some people would call it campaign rhetoric and some people would say campaign commitments—whatever.
    Mr. Ménard has been very clear about his position on the bill. I've certainly expressed that the government is willing to entertain the Liberals' suggestions on how we can make the bill better. If they are open to doing that, we have a couple more days set aside for clause-by-clause. The minister's office is willing to work with opposition members to see exactly what we can do to make the bill workable in their view and find some common ground, so at the end of the day we have a bill in place that the majority here on committee can support.
    If this is appropriate, are the opposition members willing to take some time this week to work with department officials and the minister to hear from each other where they would like to see some changes made to the bill to make it more acceptable to their party?

  (1015)  

    Thank you, Mr. Moore.
    What is the desire of the opposition?
    Chair, may I speak?
    You have the floor.
    Given that Mr. Moore is making this offer, the committee might want to adjourn for ten minutes to allow opposition members to discuss this and come back with a response.
    Mr. Moore, is ten minutes long enough?
    Sure.
    The meeting is suspended.

    


    

  (1045)  

    I call the meeting to order.
    Committee members, I understand there's been some discussion, and I believe there are a couple of statements to be made. We will start with Monsieur Ménard, who will be followed by Ms. Jennings.

[Translation]

    Thank you, Mr. Chairman, for allowing us to speak.
    As you know, all parliamentarians are keen on having as much information as possible when it comes to making laws. All opposition parties would prefer the following option. Minimum mandatory penalties have been applied for the past ten years in the case of criminal offences committed with firearms, but we have not seen any probative or conclusive studies on the consequences of applying these penalties.
    We would like the government to agree to defer the adoption of this bill anywhere from several months to one year. I think we could form a better opinion of this issue if a nation-wide longitudinal study were done to determine who has been convicted and if minimum penalties really had any deterrent effect. We would then have probative, conclusive facts on which to base our position. We have a responsibility to do this and it would be our preferred option. I will now turn the floor over to Ms. Jennings, who can suggest other options, in the event the government decides against this course of action.
    We remain hopeful, however, and I believe this would be the wisest solution, from a parliamentary as well as from a procedural standpoint.

[English]

    Thank you, Mr. Ménard.
    I would ask the committee to keep in mind that we have only a few minutes remaining in our time here, so perhaps you could put your comments directly.
    Go ahead, Ms. Jennings.
    Yes, thank you, Mr. Chair.
    The Liberals on this committee wholeheartedly support the proposal Mr. Ménard has made. We too would like to see this kind of information. It would certainly be helpful going forward in the determination of whether the minimum mandatory sentences or penalties that already exist and that have existed for the past ten years are working, and if they are, where they are working, and if they're not, why they are not working. That is our preferred option—the suspension with the study that Mr. Ménard has mentioned.
    However, should the government in its wisdom decide that it does not wish to take up that option, the second preferred option would be to suspend for a very short time. It would allow the three opposition critics who sit on this committee to sit down with Mr. Moore and the government's legal experts and House procedural experts and go through Bill C-10 to determine if in fact amendments could be brought that would satisfy the need to ensure safe communities with effective sentencing.
    Thank you, Ms. Jennings.
    Mr. Moore, do you have comments?
    Thank you, and I thank the opposition parties for those submissions.
    What I move, Mr. Chair, is that we suspend this sitting. I know we're almost at the end of our time anyway.
     I've undertaken to bring those two suggestions forward and to get back to opposition members as soon as possible. I've already indicated my own and the government's willingness to sit down with opposition critics and opposition members to come to some more common ground on this bill and see if we can come forward with a bill at the end of the day that's going to serve Canadians better than the status quo. My commitment, then, is to get back to opposition members about which, if either, of those two options we would like to go with.
     I move also, Mr. Chair, that we end our business for today on this bill. We could pick it up at the next scheduled time.

  (1050)  

    The next sitting would be on Thursday. Is the committee in agreement with that?
    There's something else scheduled for that meeting.
    It is a private member's bill.
    You're right. It would have to be the following Tuesday, one week from today.
    That gives us more than enough time.
    Does that appear to be enough time?
    Okay, then let us have a motion for adjournment. Go ahead, Mr. Comartin.
    Just so I don't leave this with the committee, there is an error in each of my first two amendments, NDP-1 and NDP-2. I'm actually referring to section 98 in both. I won't go through the specific ones, but I'll correct those for next time. It's section 98.
     Fair enough. Thank you, Mr. Comartin.
    The meeting is adjourned.