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View Marco Mendicino Profile
Lib. (ON)
View Marco Mendicino Profile
2018-11-20 15:24 [p.23625]
Mr. Speaker, it is a privilege to rise and speak to Bill C-75, which represents a package of bold and comprehensive reforms. This is not the first time that I have spoken to this significant piece of legislation. I did have the opportunity to comment on it previously in my former capacity as the parliamentary secretary to the minister of justice and the attorney general of Canada.
I want to begin by expressing my gratitude to a number of people who have contributed to Bill C-75. First, obviously, I would like to thank the Minister of Justice for her leadership. I would also like to thank members of the Standing Committee on Justice and Human Rights for their close study of the bill, and all of the stakeholders and contributors who through their testimony before committee and their written submissions provided for a very rigorous and thoughtful study of this bill.
Having had the benefit of reviewing those submissions and some of the testimony and seeing the hard work and contributing to it myself by participating in round tables around the country, consulting with stakeholders in conjunction with the Minister of Justice, I am confident in saying that Bill C-75 is a momentous piece of legislation. When it becomes law, it will improve our overall criminal justice system.
I also want to thank the thousands of people who work within our criminal justice system day in and day out, law enforcement, police, members of the judiciary, and all the social services which are wrapped around the criminal justice system. Having worked in it myself for over a decade, I can say without any hesitation that these are individuals who care about protecting our community while also offering the prospect and opportunity for people who find themselves caught within the criminal justice system to reform and to rehabilitate, which is a fundamental principle of the criminal justice system, especially as it relates to our sentencing processes.
There is obviously more to do. The Supreme Court of Canada put into very sharp focus the task that is ahead of us as a result of some of the ongoing challenges which the criminal justice system is confronted with every day. What are those challenges? They range from, obviously, the overrepresentation of marginalized individuals, in particular, members of the racialized community, as well as our indigenous peoples. Far too often, for reasons that are not their fault but rather a result of the systemic challenges which they face on an individual basis as well as the collective challenges that communities face, they find themselves caught in the web of the criminal justice system.
We need to be very candid with ourselves about what those challenges look like. We see overrepresentation of racialized members as well as indigenous peoples in our jails right across the country.
We also know there is an under-representation of those very same groups within the legal profession and within the judiciary. The work that the Minister of Justice has undertaken in appointing a judiciary which is more reflective of the diversity of this great country is in part a sincere effort to address that challenge. Having spoken with many members right across the continuum of our society, I can say that we have made progress, but there is still more work to do.
I also would note that the Supreme Court of Canada in Jordan did point out quite rightly and quite justifiably that there are serious concerns when it comes to delay, court delay in particular, and if not addressed, a denial of the right to have a trial within a reasonable period of time can amount to an infringement of a person's rights under the charter, particularly under section 11(b) of the charter. It was incumbent upon all of us in the words of the Supreme Court to address the culture of complacency which for far too long has shackled our ability to address delay.
Having had the benefit of reflection and having had the benefit of consultation and discourse in the context of Bill C-75, we now have a suite of reforms which will not solve all of the problems, but certainly will begin to dramatically rewire and hopefully create a criminal justice system, a set of processes, which will allow people to have access to justice, have the right to have their day in court, and begin that path to rehabilitation which is so important in order to create communities which are strong, resilient and safe.
I will now highlight some of the important components of Bill C-75, much of which has been debated for quite some time now in this House and at committee. Eventually, the bill will make its way over to the other place and then back.
It begins at the very start of the criminal justice system process when an individual is arrested and is brought before the court for his or her first appearance. It is at that moment the court is then asked to determine whether that person should be released or detained pending his or her trial.
We have enshrined a principle of restraint in Bill C-75, the point of which is to ensure that justice actors who are appearing in court, either representing the Crown or the defence or in their capacity as duty counsel, are not automatically overburdening judicial interim release orders with conditions which essentially are a prescription for reoffending and failure. Rather, through this principle of restraint, we are encouraging all of the parties who are involved in the determination of bail to assess the conditions which are necessary to address one of the three statutory grounds on which an individual is released.
From the perspective of the primary grounds, if the person is a flight risk, what are the conditions that are necessary to secure the person's ongoing attendance before the court? On the secondary grounds, is there a serious risk of reoffending? What are the conditions that are necessary for the purposes of ensuring that the community's concerns are addressed on secondary grounds? Obviously, under the tertiary grounds, we question whether there are additional conditions which are required to maintain the public's confidence in the administration of justice. Again, we look for some nexus between what are the conditions which are being asked for by either party and their advancement of the tertiary ground concerns.
We have, through the principle of restraint, really fostered a much more responsible approach. This is about addressing the culture of the criminal justice system right from the get-go, once a person is implicated with charges at the bail stage.
We have also, in the context of Bill C-75, introduced a suite of reforms that will, hopefully, reduce the number of administration of justice offences which are in the system. Looking at the statistics which are available right across the country, we see, for example in the province of Ontario, that over 40% of the charges in the provincial court system, the Ontario Court of Justice, could be classified under the administration of justice offences.
We are looking to find alternative ways to address potential breaches through the principle of restraint, to actually reduce the likelihood that there will be an unnecessary technical charge which is unrelated to the underlying substantive offence, but also to introduce a concept called judicial referral hearings, where even if there is a legitimate breach, to look for other ways to address it, short of introducing an entire set of new charges.
I would also point out that Bill C-75 addresses intimate partner violence. This is something that I heard very personally and I know the minister did as well in our round tables. There is the need to address the systemic barriers which for far too long have prevented victims from coming forward. How are we doing that? In the case of repeat offenders, people who have been convicted in the past of sexual offences or offences related to intimate partner violence, to put the onus on them to determine whether they should be entitled to bail, and also to look for additional factors to be taken into consideration.
At the back end there are more tools available both to the prosecutor as well as to the court to determine what is the appropriate sentence by lifting the maximum sentences available, again for repeat offenders. That, coupled with the investments which we are making in the victims fund, by looking at other ways in which we can make it easier for victims to be able to come forward to ensure that they are heard, to ensure that they have a voice in the system, is absolutely crucial in order to ensure that there is access to justice.
These are just some of the highlights in Bill C-75. Again, there is no one simple solution to solving all of the challenges which the criminal justice system is confronted with.
I rise with great pride to speak on behalf of the bill. I urge all members to support it. At the end of the day, it will bring the criminal justice system into the 21st century and therefore be a great service to our country.
View Bill Siksay Profile
View Bill Siksay Profile
2007-11-26 12:30 [p.1326]
Mr. Speaker, I am pleased to have the opportunity to speak to Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts, also known as the tackling violent crime act.
I have significant problems with this bill and with the Conservative government's approach to crime in general. The Conservatives are adopting a U.S. style crime agenda that says they are tough on crime but begs the question of what measures are actually effective in reducing crime and making Canadians safer. There is a lot of sloganeering but very little that shows these measures would actually make Canadians safer and give us more effective crime legislation.
The measures in Bill C-2 focus on punishment and incarceration. We know this is the least effective part of an approach to reducing crime in our society. Incarceration does not work to reduce crime and more prisons do not reduce crime. The evidence shows that, at best, there is no relationship between increasing incarceration and reducing crime or, at worst, that these approaches increase crime and become counterproductive.
Many U.S. jurisdictions that went down this tough on crime incarceration road have recognized that these measures do not work and have begun to undo them. As has been mentioned already this morning in debate, a recent report titled “Unlocking America” exposes the fact that incarceration has not worked to reduce crime and, in many cases, has increased the violent crime rate.
What does work? We know that more enforcement, more police on the beat, increasing the possibility of being caught and increasing the possibilities for detection and apprehension do work. Unfortunately, this is one place where the Conservatives are breaking a promise to increase the number of police on the beat in our communities.
We know that community policing, increasing the opportunities for police to develop real relationships with members of the community, also reduces crime. We know that prevention measures work. Working to address issues like drug addiction, family dislocation, poverty and providing parenting support, all those measures go toward reducing crime in our society.
We know that parole and release programs work. I was very lucky to have had the opportunity to sit in on a support group for sex offenders in the Vancouver area. I saw the kind of work that happens in that kind of setting. I was very impressed with the way that session proceeded and the kind of support that was being offered. I was also very concerned to hear from those folks that access to psychiatric and psychological support was very limited in the Vancouver area.
We also know that restorative justice programs work. Those programs seek to help offenders assume responsibility for their crime and restore the relationships that have been broken in the community because of that crime. We need more of those programs.
COSA, Circle of Support and Accountability, is a Canadian pioneered post-release program that matches community members with offenders. It is a support and accountability mechanism. Sadly, this program has not received the kind of support it deserves from the government, especially when other countries have adopted it.
Bill C-2 includes provisions in the old Bill C-10 on mandatory minimum sentences for crimes committed with a gun. We know that mandatory minimum sentences, of themselves, do not reduce crime. They do, however, reduce or eliminate judicial discretion, which is the ability of a judge, having reviewed all the evidence and knowing the person involved, to make a decision based on the facts of the case and of the individual involved. This is an important principle. I do not believe there is one judge sitting on the bench who wants to see serious crime go unpunished.
The cost of keeping someone in prison is $94,000 a year. Evidence shows that programs that support someone on parole or a drug treatment program for an addicted criminal are 15 times more effective than incarceration in ensuring he or she does not reoffend.
In testimony before the committee on Bill C-2, the president of the Canadian Association of Elizabeth Fry Societies, said that the government must stop using prisons as a substitute for mental health services, public housing or shelters for women escaping violence.
Bill C-2 also includes a reverse onus on dangerous offenders designation, that it would kick in after a third offence and that there would be a presumption that the person was a dangerous offender. It would be up to the offender to prove he or she was not a dangerous offender. When we are talking about a dangerous offender designation, we are talking about life in prison.
Reverse onus has very serious implications for our criminal justice system. Having reviewed the testimony presented at the standing committee, I am convinced, as were many of the experts who testified, that this section of the bill would not survive a charter challenge.
When the state is seeking to jail someone for life, the burden should be on the state to prove the necessity of that imprisonment. That is the case with the current law. To put this burden on the person who has been convicted is unjust, to put it simply. It would only increase the inequity of our criminal justice system where wealthy people would be able to muster the resources to mount a case and everyone else would be more likely to fail because they would not have the money to do so. Legal aid costs would skyrocket given the huge costs associated with this type of process.
Why does the bill suggest measures of automatic designation of dangerous offenders only after a third conviction? Surely, if someone is a dangerous offender, we should be looking at dealing with them sooner and ensuring the system has the resources to do that sooner.
Reverse onus has other serious problems. Judicial discretion, which I have already spoken about, would be removed. It would eliminate the ability of the accused to remain silent and it would incarcerate people on the basis of what they might do rather than what they have done. Our ability to predict behaviour is notoriously poor. What it boils down to is essentially a measure of preventive detention.
I want to support very strongly the motion put forward by the member for Windsor—Tecumseh to delete the provisions of reverse onus that are included in Bill C-2.
I also want to point out that aboriginal people are already overrepresented among those who have been designated as dangerous offenders in Canada. Twenty per cent of the dangerous offenders are aboriginal and this would increase as a result of the bill. Something is seriously wrong with this measure when 20% of those subject to it represent a group that only represents 3% of the total population of Canada. This legislation would only make this problem worse and it would also increase the family dislocation and social costs that aboriginal communities already experience because of incarceration rates.
Bill C-2 also includes measures on the age of consent, and I have already spoken extensively about this. I believe the existing age of consent legislation is excellent and comprehensive legislation. This bill would criminalize sexual activity for young people, especially those 14 or 15 years of age. No matter what we think of young people being sexually active, I do not believe the criminal justice system is the place to deal with that issue when a consensual, non-exploitive relationship is involved.
We must be smart on crime. We know enforcement, parole, community programs, social programs, addressing inequality and a change in our approach to drugs do work. Drugs are a significant factor in both petty crime and serious violent crime. Alcohol prohibition did not work and it caused exactly the same problems that we now face due to drug prohibition. We need more treatment programs for addictions and more harm reduction measures, not more jail time. That does not work.
Bill C-2 goes in exactly the wrong direction. It buys into a model that has been proven to have failed in the United States where many jurisdictions are already seeking to undo the damage done by this exact approach. I have very serious reservations about this legislation.
View Joe Comartin Profile
View Joe Comartin Profile
2007-11-23 10:08 [p.1275]
Motion No. 2
That Bill C-2 be amended by deleting Clause 42.
He said: Mr. Speaker, thank you for the ruling on this amendment indicating that it is within the proper scope of the rules and admissible.
The amendment deals with the specific section of a very large bill, an omnibus crime bill, and specifically with that part of the bill that deals with the dangerous offender designation in the Criminal Code.
Just quickly, the balance of Bill C-2 encompasses five separate pieces of legislation that were before this House in the previous parliamentary session. The dangerous offender section at that time was Bill C-27. It has now been incorporated into Bill C-2.
We had commenced work on that in a special legislative committee prior to prorogation. The prorogation by the government of course ended that bill, as it did the other four, three of which by the way were in the Senate, and the fourth one was out of committee at report stage in the House.
So now, because of what I think is a very foolish decision but a very political decision on the part of government, we are having to go back through all of those four bills and we have wasted a significant amount of time.
The government is historically very proud to stand in this House and accuse the opposition parties of delay. Of course, what has happened here has been entirely on its desk and it is something of which the Conservatives should be ashamed.
To come back to Bill C-27, as it was then and now that part of Bill C-2, the dangerous offender section of the Criminal Code has a history going back in this country to 1978 at which time it was incorporated.
I do not think there is any disagreement about this no matter which political party one belongs to, that there are individuals in our society that we are not able to cope with in terms of rehabilitating them. They commit serious, oftentimes heinous, violent crimes against other residents of Canada. When we use our traditional attempts to deal with them by way of prison terms, oftentimes psychiatric or psychological treatment programs, they are not successful.
Our psychiatrists, our psychologists and our best experts admit there is a very small number of individuals that we simply, as a society in terms of our psychological and psychiatric treatment modalities, are not able to treat and rehabilitate to the point where they are no longer a risk to society once released from our prisons. The dangerous offender section was introduced into the Criminal Code to deal specifically with those individuals.
Based on some very good research from the Library of Parliament, since 1978 we have had 384 individuals, up until the spring of 2005 so it is a bit more now, all male, designated as dangerous offenders. It is interesting to note that of those 384, 333 as of April 2005 were still in custody, still in prison. Only 18 had been released and were on parole. The balance of approximately 33 died in prison. I think this is the point that we need to recognize.
This designation, unlike a conviction for first degree murder and a life sentence, is in fact a life sentence in the 90 percentile of the cases. These individuals never get out. It is a recognition that we are not capable of dealing with them. They stay in custody, in prisons, for the balance of their lives and literally, as I have said, die in prison. That is what we are dealing with when we are dealing with a dangerous offender designation.
As I indicated earlier, there are no women who have been designated, up until April 2005. There are a couple of applications outstanding against women currently.
One of the other points that I would make that comes out of the research done by the library is that a full one-fifth, 20%, of all the individual criminals who have been designated are from the aboriginal population, from our first nations.
There is no question, and we see this more when we look at statistics in the United States, that subgroups within our society often times are individuals who are more targeted and receive greater punishment.
I am not going to suggest for a minute that the designations in those cases were inappropriate; they may or may not have been. However, that is the reality, given that our aboriginal population in this country is roughly 3% of the population but slightly over 20% are designated as dangerous offenders.
We know that this is a section of the Criminal Code that we would use, obviously, very sparingly. The issue of the constitutionality of this section has been to the Supreme Court on a number of occasions and reviewed also by a number of our appeal courts at the provincial level.
The message that comes out very clearly is that it is to be used sparingly, that it is to be used with extreme caution, that the individuals who are confronted with this are to be given the greatest amount of doubt as to the usage against them because of the consequences.
I want to repeat that the consequences in more than 90% of the cases are that these individuals, once designated as dangerous offenders, will stay in prison for the balance of their life. They will never get out.
Faced with that, if we look now at the bill that is before us, Bill C-2, the government has introduced into clause 42 a provision for a reverse onus. For those in the public who do not have a law degree and do not fully appreciate this, that is saying, under these circumstances, to the individual criminals, “If you meet this criteria, you have to prove to the judge who is hearing the case for the designation of dangerous offender why you should not be held in custody in prison until the rest of your life”. That is really what they will have to do.
That flies in the face of the charter. This section will not survive a charter challenge. Under those circumstance, and Mr. Speaker, I see you signalling that I have only a minute left. I thought these were 20-minute sessions. No. That is unfortunate because I had a lot more that I wanted to say.
My amendment, pure and simple, would delete the reverse onus from this bill because it would not survive a charter challenge. We are going to have tremendous litigation on this and at the end of the day one of our superior courts, or even the Supreme Court of Canada, will strike this section down. The amendment would take care of that right now and we could save all that trouble.
View Maria Minna Profile
Lib. (ON)
View Maria Minna Profile
2007-11-23 13:12 [p.1304]
Mr. Speaker, that is an indication of exactly what I was trying to say. We cannot deal with the amendment without dealing with all the other aspects I was discussing. With all due respect, what I was saying was very much appropriate. If we prevent crime in the first place, we do not have to get to the point of having to have reverse onus at all.
This is very important with respect to youth. Chile has an agreement with Quebec to take the Quebec model and to use it in Chile. Maybe the government might want to learn something from some of our own provinces and how they are applying prevention and rehabilitation so we do not get to the point of discussing the issue of reverse onus.
We must address the growing problem of domestic violence in the country as well. I know the hon. member does not want to hear about it, but the reality is that 53% of all women who are victims of a violent crime were victims of a common assault, 13% were victims of sexual assault and 11% were victims of assault with a weapon. Not all of these are preventable, necessarily, but most of them are if we were to spend some money in education with respect to problems with domestic violence. However, the government instead has chosen to cut and to change the mandate of the Status of Women Canada and eliminate not only the issue of equality, but the research and advocacy needed in this area and the kind of work that is required. The United Nations has pointed that out already.
Again, in order to change a social condition that exists in our country, we have to ensure that these kinds of crimes can be prevented. However, the government does not seem to be interested in these things.
We all know that women are considerably more likely than men to be victims of violent crimes, such as sexual assault and criminal harassment.
Women are also more often victimized in their homes, in communities and in prisons, as we have seen more recently. There were 224,000 women who said they feared for their lives as a result of a violent spouse. These are things that can be assisted. Rehabilitation will work in those areas in many cases. We should look at the conditions of poverty, mental health and other situations.
Furthermore, aboriginal women are more than three times likely to report being victims of spousal violence than their non-aboriginal counterparts, 24% of aboriginal women, or almost a quarter.
Due to the often cyclical nature of domestic violence, women involved in abusive relationships are often caught in a revolving door of abuse and refuge. The government is doing little to nothing in the way of prevention. In fact, it has gone the other way around. Portions of this omnibus bill attempt to do that, but I do not think it addresses it to the extent we need.
The government has proposed an American style “three strikes and you're out” law to jail certain offenders indefinitely. In fact, those particularly affected would include aboriginal women with addictions or histories of abuse who have acted out in violence and have inadequate access to healing. Again, these are areas of prevention; women who are incarcerated, larger numbers in the aboriginal communities. A great deal of issues are not being addressed by prevention.
In part, the government is criminalizing the poor and mentally ill as a result of this rather than ensuring access to affordable housing, incomes, training, support, mental health services and assistance. Mental health is one of the areas that receives the least attention and the least funds whenever it comes to health dollars. Yet more than 50% of all those incarcerated, as we know, have mental health issues. Again, this goes to prevention and it goes to the civility of the society.
According to Statistics Canada, the number of Canadians spending time behind bars increased in 2005-06 for the first time in more than a decade. This increase is due to the larger number of individuals in remand, serving time waiting their trials or sentencing. In fact, the number of adults in remand rose 12% in 2005-06. This means that for the first time, the number of Canadians awaiting their trial or sentencing outnumber those serving actual jail time.
The result is that offenders are spending less time in custody because courts are giving credit for time spent in remand when determining the length of a sentence and no rehabilitation is taking place while they are there.
If the Conservative government is so tough on crime, why is it that jail sentences for those found guilty of a crime is decreasing, while time spent in jail for those waiting to have a fair trial is increasing? Again, while they are waiting for justice, no rehabilitation is being offered at this time, which goes to the problem of recidivism.
It seems that the Conservatives' attempts to play partisan games with the Criminal Code is holding up more than legislation in this House. It is also holding up Canadians' rights to fair and speedy trials.
The number of women serving jail time is also on the rise. In fact, the fastest growing prison population worldwide is women. In particular, it is racialized. These are young, poor women and women with mental and cognitive disabilities. These escalating numbers are quite obviously linked to barriers in health care, education and social services. Again, these are areas that the government is ignoring, quite deliberately. Again it goes to the issue of rehabilitation, which means that we would not need to use the reverse onus or the draconian kinds of laws that we are so bound to use.
The number of Canadians incarcerated in 2005-06 was 110 per 100,000, which is a far cry from the United States where it is 738 per 100,000. The Americans have been going down the road of incarceration for many years and, in fact, they are beginning to look the other way because it has not worked. Increasing the jail population does not work. It does not prevent crime. It does not help to rehabilitate criminals. It does not reduce crime on our streets.
I would really like to challenge the government on this. Not only does the reverse onus not work and, as other members have mentioned, may not be constitutional, but, more important, it does not address the problem of the security of our communities, which is the main point.
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