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CANADA

Standing Committee on Justice and Human Rights


NUMBER 048 
l
1st SESSION 
l
39th PARLIAMENT 

EVIDENCE

Tuesday, February 13, 2007

[Recorded by Electronic Apparatus]

  (0915)  

[English]

     I call the Standing Committee on Justice and Human Rights to order. Of course, we're still considering Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms).
    I know some discussion has taken place over the last few days and some more is yet to be considered this morning. So I'm going to open the floor, and I know the parliamentary secretary, Mr. Moore, has something he would like to put on the table.
    Mr. Moore.
    Thanks, Chair.
    Yes, there's been ongoing discussion with regard to this bill. We just received some further amendments. In the interest of studying those amendments for a few minutes and then having some more informal discussions, I'm wondering if we could take 15 or 20 minutes to digest some of these new amendments and also to discuss, perhaps more informally, where we can go.
    All right.
    Does anyone wish to make a comment?
    Do you have something you wanted to say, Monsieur Ménard?

[Translation]

    I agree that the sitting should be suspended.

[English]

    Madam Jennings.

[Translation]

    Mr. Chairman, do you want to adjourn the meeting for a specified period of time to allow some discussions that would be off the record, or do you merely want to postpone the start of the clause-by-clause study phase, all the while keeping any discussions officially on the record? If that's the case, then the proceedings would not be adjourned. The meeting would simply continue.

  (0920)  

[English]

    What is the will of the committee? Some informal discussions off the record?
    Okay, we'll suspend.

    


    

  (1005)  

     I call the meeting to order.
    Before we get into clause-by-clause study, I'm going to give the floor to Monsieur Ménard. I believe he has a notice of motion that he wants to put before the committee.

[Translation]

    Mr. Chairman, if we are to vote on Thursday, I would simply ask the committee to take note of the following. I would like the committee to vote on a motion, further to the testimony that we have heard. I think all of my colleagues present will agree to this motion, which reads as follows:
1. That the government amend the definition of “criminal organization” in section 467.1 of the Criminal Code to include the commission of offences involving gratuitous violence (e.g.: drive-by shootings) that yield no material benefit for the said organization, as defined in section 467.1.
    I'll have an opportunity to explain this further next Thursday. Moving right along:
2. That the government amend the Criminal Code to make warrants authorizing the use of a GPS system to monitor the movements of a motor vehicle (s. 487.01) valid for the same period as warrants for electronic surveillance; namely, one year.
    This was something mentioned to us by the witness, Mr. Bélanger. I should also have included a reference to section 492 in addition to section 487.01. Continuing on with the reading of my motion:
3. That the federal government make available to the provincial attorneys general a fund of at least $5 million over three years to help train Crown prosecutors specializing in combating street gangs.
    You may recall that according to the witnesses, few persons have specialized training in this field. Moving along:
4. That the federal government implement a web site accessible by police officers; federal, provincial and territorial justice ministers; and Crown attorneys, with links to the following:
    I don't think I need to read the following three points. In short, the motion calls for evidence and court decisions to be made available to members of the legal system. I am optimistic that as a friendly gesture, you will unanimously support this motion.

[English]

    Thank you, Monsieur Ménard.
    Notice has been served. We will now go to clause-by-clause study of Bill C-10.
    (On clause 1)

  (1010)  

    I know there is an amendment for clause 1 from the Liberals. That amendment is inadmissible. It's a simple matter of voting either for or against the clause.
    I disagree. If amendment L-1 deletes the section—If the subsequent amendments we bring forth are adopted, then clause 1 would no longer be required, but if you rule this out of order and our subsequent amendments are adopted, then amendment, L-1 would in fact be required.
    The proper way to deal with this particular clause is to delete it by voting against it.

[Translation]

    Mr. Chairman, do you not want to stand down this clause?

[English]

    There is a government amendment on the clause as well.
    Is someone going to move the government amendment?
    Go ahead, Mr. Moore.
    I'll move the government amendment. Do you need an explanation for the government amendment?
    Let's have an explanation.
    The government amendment proposed to clause 1 essentially would give effect to amendments that are proposed for other clauses. It may be wise for the committee to consider standing down clause 1 until other amendments related to part III of the Criminal Code in the bill are dealt with--to see what remains standing, so to speak. Then we could go back to clause 1 and ensure that it reflects the outcome of the offences in part III.
     You're suggesting that we postpone this particular vote.
    Clause 1 could be stood down and brought back after subsequent clauses are dealt with.
    Could I have a motion to that effect.?
    I so move.
    Thank you, Mr. Moore.
    Ms. Jennings.
    Yes. You ruled the Liberal amendment on clause 1 out of order. Why wouldn't the government amendment on clause 1 also be out of order?
    The explanation being given is that we propose to stand down any discussion on clause 1 because the validity of our amendment on clause 1 will depend on whether or not subsequent government amendments are adopted. It's exactly the argument I gave for the Liberal amendment.
     If my amendment was out of order, then the government's amendment to clause 1 should also be out of order, if you're going to issue rulings that are coherent.
    Yes. I didn't understand that that was in fact what you had ruled, Mr. Chair. Is it possible to stand down any amendments to clause 1, including clause 1, until we see how the rest of the amendments play out?
    Monsieur Ménard, do you have a motion to stand down?

[Translation]

    Yes. I move that all amendments relating to clause 1, whether originating from the government or from the Liberals, be allowed to stand.

[English]

    Is there agreement?
    Some hon. members: Agreed.
    (Clause 1 allowed to stand)
    Clause 2 is in the same situation in that it affects not only clause 2 but also clause 9. Could I have a motion to stand those?
    Monsieur Ménard.

  (1015)  

[Translation]

    I so move.

[English]

    Is there agreement?
    (Motion agreed to)
    (Clauses 3 to 6 inclusive agreed to)
    (On clause 7)
    There is an amendment.
    Monsieur Ménard.

[Translation]

    Would it be possible to hold separate votes? We agree with the first part which calls for the creation of a new offence. However, obviously, we wouldn't be comfortable with the second part. I'm referring here to the original text.

[English]

     Mr. Moore.
    We're dealing with clause 7, right?
    Yes.
    There's no new offence. For what we have categorized as serious non-use offences, clause 7 raises the minimum penalty—in the case of a first offence, three years, and in the case of subsequent offences, five years—but it does not create a new offence. And the minimum now is one year.

[Translation]

    The first part contains a reference to subsection 95(1), while the second part mentions mandatory minimum penalties, as proposed. Is that correct?
    Yes. Some of the same terms are used at the beginning of section 95. This provision contains nothing new. Some terminology has been dropped to update the act, but no new offence is created. It's simply a matter of making a substantive change, with a view to increasing minimum penalties.

  (1020)  

     Could these components be separated?

[English]

    Ms. Jennings.
    I don't support this, and I believe my colleagues do not support this.
     It's clear from the testimony this committee heard on the very principle of minimum mandatories that in general they do not work and they have no effect on deterrence. They could, however, be effective on the side of denunciation should society speak through its government to say that there are certain crimes that we simply will not tolerate and that therefore will require a minimum mandatory.
    Therefore, we will not be supporting the government amendment. As you know, we have our own amendment for clause 7. We'll speak to our amendment should the government amendment not—
    But there is no government amendment.

[Translation]

    Excuse me.

[English]

    Oh, that's why you've been waiting. I've been looking at the wrong line.
    I move Liberal amendment 2, which would remove the escalator clause and establish a minimum mandatory of two years where the current provision now provides for a minimum mandatory of one year.
    I apologize for holding up the committee.
    That's all right.
    I would consider that amendment to be inadmissible.
    May I ask why?
    It removes the subsequent higher offences and it's also against the principle of the bill.
    We have to have the debate now.
    Yes.
    Chair, I have a difficult time following your reasoning. If in fact the whole principle of the bill is to, one, create escalator clauses on subsequent second, third, etc., offences, then the government amendments remove escalator clauses that we found in Bill C-10, which then means that those amendments are out of order. They are removing escalator clauses that we find in the original provisions of Bill C-10.
    First, where there is no change to existing Criminal Code provisions, if your ruling is to have weight, then Bill C-10 should have addressed every single criminal provision and introduced escalator clauses for every single sentencing provision in the Criminal Code. Second, it should also have included escalator clauses beyond third offences.
     On your ruling, Mr. Chair, I take the purpose of the bill not to be the press releases on the nightly news from former Minister Toews, but to be the preamble, as we're supposed to be doing here in interpreting legislation, which says that Canadians are entitled to live their lives in peace, freedom, and security, and violence is awful, that Parliament should take measures to protect Canadians—I'm paraphrasing. But the key phrase, which must be interpreted and which must be the basis of your ruling, is:
AND WHEREAS these measures include legislation to impose higher minimum penalties on those who commit serious or repeat offences involving firearms;
    The purpose of the legislation, therefore, is to increase mandatory minimums on certain offences whether they are first-time or repeat offences, and there is nothing in the preamble—unless I have the wrong copy—that uses the word “escalation”. I doubt escalation is even anywhere in the legislation per se, because it will say second or third and so on.
    I think your ruling is completely out of order, and frankly, you must make the same ruling on any of the government amendments that take away the escalation clauses by their amendments.
    What we're trying to do—and I don't mean to be mean-spirited in this—in the spirit of cooperation in which we're trying to get good law passed—I suggest that what we're really trying to do is increase some mandatory minimums in some cases and not be hoist with our own petard of escalation per se.
    That's what I think, Mr. Chairman.

  (1025)  

    We're not going to get into a debate over the chair's ruling—
    Hon. Marlene Jennings: I challenge.
    An hon. member: I have requested to be recognized, Mr. Chairman.
    Yes, I have you down on a list. I have three or four others as well.
    I believe the bill and the preamble do permit that and the government amendments do allow room for escalation.
    The chair has ruled, and the issue now is what is the will of the committee?

[Translation]

    Mr. Chairman, please don't take this as a personal criticism, but you are setting a dangerous precedent, much like you did in the case of BillC-9. Regrettably, under the circumstances, we will have no other choice but to openly challenge your ruling, for two reasons.
    First, of course, is the fact that it refers back to the preamble. Second, on reading the bill, we note that some offences are listed by order of importance. For example, in the case of a first, second or third offence, the penalty escalates. That's not always the case, but the fact remains that there's an old legal principle at play here, namely that less is more.
    The idea of choosing to escalate penalties in the case of the first and second offences, but not in the case of a third one, is entirely acceptable. We could opt to do away with the third one, but keep the first and second ones. I think your interpretation of what is admissible is much too broad. Committee members cannot back your ruling.
    Regrettably, we must challenge you on this. Undoubtedly, the Speaker will have the final say.

[English]

    Thank you, Mr. Ménard. It sounds as if you're challenging the ruling.
    Yes.
    Okay, then we will vote on my ruling.
    Mr. Bagnell.
    On a point of order. I have a point of clarification, so I understand how to vote on this.
    If we are just softening the increase, can you explain to me why it's out of order? I just want to understand your rationale.
    Well, the principle of the bill...it waivers substantially from that, as well as the issue of the higher sentences, which the bill initially brought forward. So it deviates substantially from that. And there is clearly indication in the preamble that there's room for escalating sentences.
    In our amendment there is an increase, is there not?
    No.
     Mr. Chair, I'm sorry, I'm going to let you deal with that question, but I'll make a point of order here.
    Yes, on a point of order.
    Mr. Chair, you've already indicated that you would recognize me. Having said that, you were apparently prepared to proceed to the next step. I think I should be recognized.
    Okay. I recognize you, Mr. Lee.
    I appreciate Mr. Bagnell's request to the chair to clarify the basis for his ruling. The chair's reasoning here is still not clear to me.
    He uses the phrase “the principle of the bill”. I am not familiar with that concept. I understand the concept scope of the bill but not the principle of the bill. If the chair is of the view that this or other amendments are outside the scope of the bill, then he may wish to take that point.
    But I'm looking at the briefing book that we've received from staff, with or without the assistance of the government. In looking at clause 7, in effect the subject of the bill explicitly described says section 95 deals with the illegal possession of restricted or prohibited firearms, either loaded or with ammunition that is available.
    It is precisely what we're dealing with. This removes the reference to section 95. It's precisely what we're dealing with on this page. It's the same scope in which we're dealing with the prescribed penalities, which is what the government amendment deals with. We're dealing with the penalties for those offences. I don't understand why the penalties for those offences are outside the scope of the bill.
    The chair said the amendment deviates—
    The Chair: Mr. Lee.
    Mr. Derek Lee: I'm on a point of order.

  (1030)  

    You're debating the merits of the amendment. The chair made a ruling on it.
    I think the chair should hear from the members before the chair makes a ruling.
    The chair has said it deviates. Of course, an amendment is going to deviate. An amendment always deviates from the original because it is different. When something may say $100 and something else may say $10, there's a deviation, but it doesn't take us outside the scope of the bill or the section.
    I'll stop there.
    Thank you, Mr. Lee.
    The chair has been challenged. Now for the vote.
    (Ruling of the chair overturned)
    Okay. The amendment can now go forward.
    Ms. Jennings.
    When I first moved amendment 2, I mentioned the reasons that the current provisions in the Criminal Code provide for a one-year minimum mandatory. As colleagues from my party have pointed out, our amendment would raise it to two years, with no further escalation clause.
    We feel it is in conformity with the expert testimony we received and would therefore call on the members of this committee to support this amendment.
    Is there any other discussion?
    Mr. Moore.
    I would say the government cannot support this amendment because of the evidence we've heard that many of these crimes are committed by the same individuals over and over again. We all heard that from Chief Blair in Toronto. We feel sending a message that the minimum will be the same no matter how many times you commit a crime is the wrong message to send.
    We've all expressed our commitment in the past to getting tougher on mandatory minimum sentences. This does not in fact do that for repeat offenders. It doesn't go where we feel we should be going when dealing with people who present a serious threat in our cities.
     Of course, we support the government position that there would be a minimum of three years and then a minimum of five years on a second or subsequent offence.
     Thank you, Mr. Moore.
    Mr. Bagnell.
    Mr. Blair also said it is a very complex situation, and you have to deal with the root causes of crime. A lot of the witnesses explained that you have to deal with treatment, and there is nothing in here. These people are going to get out and reoffend. It is not an answer to have them do another year and get them more trained in being more serious, dangerous offenders.
    My last point is that I can't possibly understand how we are still increasing a mandatory minimum, which is the scope of the bill, what the bill is all about. If we are making a minor adjustment to the number of years, I don't see how that could possibly be out of order, or you would never have any amendments in any committees on any bills.
    Is there any further discussion?
    Ms. Jennings.
    I have one last point.
    When the parliamentary secretary says that by simply increasing the minimum mandatory to a certain number of years, without including an escalator clause for subsequent offences, it means that if a particular individual, who was convicted for a first offence and received the minimum mandatory, is subsequently charged and convicted for the same offence, the individual will only receive the minimum mandatory.
    This flies in the face of the testimony that was received and the studies on where there are minimum mandatories for first and subsequent offences without an escalator clause—what the actual sentences are, the median and average sentences on subsequent offences, convictions for the same offence. In fact, the judges, using their judicial discretion and taking into account both aggravating and attenuating circumstances where there is a mandatory minimum but no escalator for subsequent offences, will deem that that individual has already had a prior conviction for that offence, as in aggravating circumstances, and that will play a role in the penalty that will be laid. In fact, it shows that when you are convicted subsequently for the same offence, your sentence is a higher, more serious sentence than what you received on the first conviction.
    I attempt to be very precise in what I say, and I would just urge all of us to try. I don't always make it; I don't always succeed. I hope that people would call me out when I don't and correct me. That's what I'm doing now.

  (1035)  

    Thank you, Ms. Jennings.
    Mr. Moore.
    I am unclear as to whether Mr. Bagnell and Ms. Jennings are speaking in favour of or against their amendment. On one hand, you are saying that we don't need tougher mandatory minimums, and on the other hand, your amendment suggests that we do.
    What we are proposing focuses on recidivists, people who have committed a serious crime and then continue to commit serious crimes. That was the testimony we heard, that this is something that a small number of people do. If in fact the sentences that they were getting were always bang-on appropriate, there would be no need for us to bring forward any amendment.
    We have brought forward these amendments to focus on recidivists. The amendments proposed by the Liberal Party do not do that. They do not take into account someone who has repeat offences.
    I would like to be assured by Ms. Jennings saying, don't worry, if someone has a second or a third offence, they will be dealt with more severely. But I don't see the evidence. If she has it, she can table the evidence suggesting that in fact this is taking place.
    Thank you, Mr. Moore.
    Mr. Petit.

[Translation]

    I'd just like to add one thing. When we travelled to the Toronto area, a provincial Liberal minister who had read Bill C-10 remarked that it was a good bill. He was a Liberal minister. I would imagine that he is a credible individual. That was the first point I wanted to make.
    The second point is this: as our parliamentary secretary was saying, the aim is not to stick it to first offenders, but rather to target repeat offenders. Throughout the course of the testimony given, we heard that repeat offenders were the cause of the problems. One individual can create many problems and that's who we should be targeting. We need to rein that person in, to put an end to these problems.
    The motion introduced by Ms. Jennings on behalf of the Liberal Party does not address this problem. We shouldn't be locking up people for the sheer pleasure of it. As you're always saying, we're not idiots either. However, we have to remember one thing: our courts are clogged with repeat offenders and they are the ones creating all of the problems for us. With all due respect, Ms. Jennings, your motion fails to address the problem.
    That's all I wanted to say. Thank you.

[English]

     Thank you, Mr. Petit.
    We'll go to Mr. Bagnell.
    Mr. Petit and Mr. Moore just said this doesn't affect repeat offenders and that their purpose is to reduce recidivism and repeat offenders, but it does. Exactly as Ms. Jennings said, when you have a stronger first sentence, the judge, in making second or third sentences, looks at that and makes them longer.
    So this does affect repeat offenders and will keep them in longer. That's what the stats show, and that will be the effect of our amendment, which is just what Mr. Petit and Mr. Moore would like to happen.
    Thank you, Mr. Bagnell.
    Shall the amendment carry?
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 7 negatived)
    (On clause 8)
    The Chair: Those in favour of clause 8?
    Mr. Moore.

  (1040)  

    Is there an amendment to clause 8 that we have to deal with first?
    It's a government amendment. It's an inadmissible amendment. It's simply a matter of voting against the clause to delete it. The amendment submitted by the government is inadmissible, because you can't amend to delete. It is simply gone.
    We'll go to Mr. Comartin.
    I believe the proper procedure is to call clause 8, and the vote should be whether we're voting in favour. And from what I read around the table, nobody is voting in favour. The call from the chair should be, “Are you in favour?”
    There was some confusion in the minds of some.
    Yes, I realize there was, but I'm pointing the finger a bit at you, Mr. Chair, for that confusion.
    Okay.
    (Clause 8 negatived)
    The Chair: Clause 9 is stood down for a moment.
    (On clause 10)
    The Chair: There's a Liberal amendment, I understand, for clause 10. I can proceed in the same fashion as I did previously, in reference to this particular amendment. It is inadmissible.
     I challenge the chair's ruling.
    It's inadmissible because it's against the principle of the bill, by removing escalating sentences and lowering minimum sentences.
    Ms. Jennings.
    For exactly the same reasons that were expressed by my colleague Mr. Murphy, my colleague Mr. Lee, and my colleague Mr. Bagnell, and by me, I believe the chair has made a mistake in his ruling, and therefore I challenge the chair's ruling.

  (1045)  

    Okay.
    I may just want to add that—
    Excuse me a moment.
    Mr. Comartin.
    I tried to get this on, and then we were debating your ruling last time, Mr. Chair, so I just want to get it on the record. I think your ruling in fact would be proper if the fourth “whereas” didn't use the term “commit serious or repeat offences” but said “commit serious and repeat offences”. I think there's a broad enough opening that makes these amendments admissible because of that. I know that's nitpicking, but I think that's the reality of the way the bill has been drafted. That's why I'm supporting the motion to challenge your ruling, only because of that.
    And that's basically where it's at right now.
    I just wanted to get that on the record.
    Thank you.
    The matter now is the vote on the chair's ruling.
    (Ruling of the chair overturned)
    Hon. Larry Bagnell: Don't get depressed.
    Oh, I'm far from depressed, Mr. Bagnell.
    Shall the amendment carry?
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 10 negatived)
    (On clause 11)
    There's Liberal amendment 4. Is there a motion?
    Yes. I move Liberal amendment 4, which would increase the current minimum mandatory, which is now one year, to two years. There's already a maximum, which we don't change.
    I rule the amendment inadmissible. Again, it's against the principle. It removes escalating sentencing and reduces the minimum sentence.
    I challenge the chair.
    The chair has been challenged.

[Translation]

    Unfortunately, I don't support the Chair's decision. With all due respect, Mr. Chairman, I just can't endorse your ruling.
    It's nothing personal, Mr. Chairman, but you have made so many ill-advised rulings that I'm happy to see one of them overturned.
    (The Chair's ruling is overturned.)

[English]

    The decision is overturned.
    All those in favour of Liberal amendment 4.
    (Amendment negatived)
    (Clause 11 negatived)
    (On clause 12)

  (1050)  

     There is a government amendment. That amendment is inadmissible. It is simply a matter of voting against the clause.
    Shall clause 12 carry? Our amendment was to delete.
    Yes, that's fine. Clause 12 carries, from our perspective.
    An hon. member: Even though you wanted to delete it.
    (Clause 12 negatived)
    Mr. Moore, a point of order.
    I'll address that. Some of the government amendments were brought forward to bridge a gap and were a compromise between our Bill C-10, which I feel is a good bill, and what the opposition members were proposing—opposition members who felt the bill went too far. We tried to bridge that gap with some government amendments. Now that it is clear that opposition members will not support the bill, even as amended by the government, we are certainly going to be supporting the bill as it was introduced. I hope that clarifies any confusion there may have been.
    Thank you, Mr. Moore.
    Mr. Comartin, on a point of order.
    In response, Mr. Chair, to that comment from the parliamentary secretary, I believe these amendments that were proposed by the government were in response to amendments I had proposed, and I think the government should stick with the compromise that I believe we had worked out, rather than changing midstream, even though the other two opposition parties are not going along.
    Mr. Moore.
    That's fine, except that the government amendments were ruled out of order. Of course, I would support our amendments if they weren't ruled out of order by the chair. I think there's been enough of that today.
    I have a point of order, Mr. Chair. Being cognizant of the time, and given that the public safety and national security committee is meeting in seven minutes in the East Block and I have to be at that, I'm assuming from the stage we're at, at this point, that we're not going to complete this today. I would just like a clarification that we will be meeting to complete this, hopefully, at the next meeting. I understand the minister is coming on Thursday so we would not be completing this until next week.

[Translation]

    I don't believe we have anything scheduled for next Tuesday.

[English]

    We will complete this on Tuesday, one week hence. The minister is coming on Thursday.
    (On clause 13)

  (1055)  

    There's a Liberal amendment.
    I move it.
    Liberal amendment number 5.
    Liberal amendment number 5 has the same objective as Liberal amendment number 2, number 3, and number 4, which was and is to increase the current minimum mandatory sentence of one year to two years. In so doing, it would ensure that subsequent convictions for the same offence would in fact, through judicial rulings, receive stricter sentences, be tailor-made for the individual for the specific crime, for the circumstances under which the crime was committed, and for the impact on the victim--all of the criteria that judges need to take into consideration when determining the penalty to be meted out.
     Thank you, Ms. Jennings.
    The amendment is inadmissible.
    I challenge the chair. Call the question.
    We'll call the question on the challenge.
    (Ruling of the chair overturned)
     It is overturned, so the amendment can proceed.
    (Amendment negatived [See Minutes of Proceedings])
    (Clause 13 negatived)

[Translation]

    Mr. Chairman, may I move that we adjourn, since some members are expected at other committee meetings. I move that we adjourn.

[English]

    So be it.
    (Motion agreed to)
    The Chair: The meeting is adjourned.