Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 6 - Evidence for February 6, 2008
OTTAWA, Wednesday, February 6, 2008
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4 p.m. to study Bill C-2, An
Act to amend the Criminal Code and to make consequential amendments to other acts.
The Honourable Joan Fraser (Chair) in the chair.
The Chair: Honourable Senators, today, the Standing Senate Committee on Legal and Constitutional Affairs begins
its study of Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other acts.
As we launch our work on this important and complex piece of legislation, it is our great pleasure to have as our first
witness the Honourable Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada.
Mr. Nicholson is accompanied by Catherine Kane, Acting Senior General Counsel, Criminal Law Policy Section,
Department of Justice Canada.
Minister, we are glad to have you with us. I imagine that you have an opening statement, following which we will
ask you questions. The floor is yours, sir.
Hon. Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you,
honourable senators. I am very pleased to come before this committee as it begins the study of Bill C-2, the act that
fights violent crime.
Bill C-2 is a priority for this government, and it supports a key commitment from the Speech from the Throne to
ensure the safety and security of Canadians.
For our government, victims come first. We believe that criminals should serve time when they have committed the
crime. Protecting society is a priority for this government, not an afterthought. Canadians all across this country have
expressed their concerns regarding violent crime in their communities. That is why we have worked so hard to get these
important justice reforms passed into law.
As you know, the five bills that were rolled into Bill C-2 have been debated, studied and amended in the House of
Commons and have been thoroughly looked at by the Justice Committee. Many witnesses have appeared on these bills.
There is no question that Bill C-2 thoroughly reflects the concerns and recommendations made over the last two years.
The bill also reflects the concerns and recommendations made with respect to dangerous and high-risk offenders'
legislation, previously known as Bill C-27.
There is strong support for Bill C-2. Canadians, provincial governments and key stakeholders have joined us to
urgently pass this bill into law. For example, you may remember just a couple of weeks ago Premier Dalton McGuinty
urged the opposition leader to do what he could to get this bill passed. Last fall, the Minister of Justice for Manitoba,
Dave Chomiak, came to Ottawa with the express purpose of lending his support to the passage of this bill.
I am pleased, as well, that MADD Canada, the Canadian Police Association, the Ottawa Police, the Canadian
Resource Centre for Victims of Crime, the Canadian Centre for Abuse Awareness and many Canadians have
contacted my colleagues in the House and conveyed their support for the proposed tackling violent crime act. I urge
honourable senators to do everything possible to expedite the passage of this bill.
Every day this bill is not the law of Canada, children under the age of 16 are not as well protected as they should be
against sexual predators. I repeat: Violent sex offenders are not being labelled as dangerous; drug-impaired drivers
continue, in many cases, to evade the proper sentence that they should receive; street gangs who use firearms when
committing crimes are sometimes let back out onto the street.
I would like to describe to you what we have in this bill.
We all know that gun crime is a problem, so we proposed two ways to crack down on these crimes — increased
mandatory prison sentences and tougher bail provisions. First, for serious and repeat firearm offenders, we propose
tougher minimum prison sentences: five to seven years for eight serious offences committed with a restricted or
prohibited firearm, or in connection with a criminal gang; and three to five years of mandatory prison terms for other
offences such as firearms, trafficking and smuggling.
Second, we propose to strengthen the bail system so that those charged with serious firearms offences are kept in
custody before trial, unless they can show that they do not pose a threat to public safety and that they will not fail to
appear before the court to face their charges.
We are also proposing to expand the factors that a bail court must take into consideration in deciding whether pre-
trial detention of an accused charged with such an offence is justified. Specifically, the court must consider if a firearm
was used in the commission of the offence and if the accused faces a mandatory minimum penalty of three or more
years for a firearms offence.
With respect to impaired driving, we have made it clear that we want to combat alcohol- and drug-impaired driving
because these crimes continue to impact upon thousands of families every year in this country. Impaired drivers cause
injury and death and they should be held accountable for their actions.
Bill C-2 includes important measures to combat alcohol- and drug-impaired driving. It will provide the legal
framework necessary for the Drug Recognition Expert Program to be effective. This is a program that was developed
in the United States in the 1980s and has been adopted in a number of Canadian jurisdictions since the late 1990s. In
this program, a driver who fails to complete simple tests of sobriety at the roadside, but is not over the alcohol legal
limit, is taken to a trained officer who completes a series of observations to determine the drug causing the impairment.
The bill will also eliminate what is commonly referred to as the ``two-beer defence,'' which, in my opinion, is a major
loophole in the present legislation. At present, for instance, an accused who has blown over 80 can be acquitted by
simply testifying that he only had a couple of drinks, typically one or two drinks, sometimes backed up by the
testimony of friends; or they might have a toxicologist testify that a person only having two beers could not possibly
have registered above 80.
Bill C-2 ensures that the breath alcohol concentration reading stands unless the accused can prove that the
instrument was malfunctioning.
It will also create new offences of being over 80 or refusing to blow and causing bodily harm or death. I think most
people would welcome that change in the Criminal Code.
It will also increase the mandatory penalties for impaired driving offences to better reflect the gravity of the offence.
In Bill C-2, we are also proposing to raise the age of consent for sexual activity from 14 to 16 years of age to better
protect young people against adult sexual predators. It should be noted that there is a five-year close-in-age exception.
This is included to prevent the criminalization of sexual activity between consenting teenagers.
In my opinion, these reforms are long overdue: 14 years is simply too low. Police believe it is too low, and they have
been telling us for years. Indeed, Madam Chair, this is something out of not even the 20th century, but the 19th
century, in my opinion. It is long overdue that we make changes, and this bill will do that.
With respect to dangerous and high-risk offenders, we are proposing much-needed reform to the dangerous offender
provisions of the Criminal Code as well as sections 810.1 and 810.2, the recognizance provisions. Currently, an
individual who is found to meet the statutory criteria for a dangerous offender designation can be sentenced to an
indeterminate term of prison. Where the dangerous offender criteria are not met, the court may impose what is known
as a long-term offender sentence, which provides for a regular sentence of imprisonment plus up to 10 years of
intensive community supervision upon release.
The intent of these provisions, when originally introduced in 1997, was to maintain these two sentencing options —
dangerous offenders and long-term offenders — as mutually exclusive. However, as many of you may know, since the
2003 decision by the Supreme Court in R. v. Johnson, an individual who fully meets the criteria for a dangerous
offender designation cannot receive an indeterminate sentence if his risk of future offending can be managed under a
lesser sentence such as the long-term offender designation. Following this judgment, there was an immediate and
significant decrease in the number of dangerous offender designations with more of these individuals receiving long-
term offender sentences. It has also resulted in an inconsistent approach to these cases across the country.
This is what the reforms in Bill C-2 address. First, Bill C-2 requires Crown prosecutors to declare that they have, in
fact, fully considered the dangerous offender sentencing option where an individual has been convicted of a third
relatively serious offence. This reform is intended to achieve greater consistency across jurisdictions in Canada.
Second, where the Crown does bring a dangerous offender application, any individual who has been convicted of a
third offence from a very narrow and targeted list of trial primary offences will be presumed to meet the dangerous
offender criteria, but — and I want to make this very clear to the committee — this presumption is rebuttable.
Third, in all cases where the court finds the dangerous offender criteria has been met, the judge retains absolute
discretion to refuse the indeterminate sentence and impose a lesser sentence. I think that should also be underlined. The
judge retains absolute discretion to refuse the indeterminate sentence and impose a lesser sentence. This discretion
codifies the discretion in the Johnson case. This will ensure greater consistency across Canada in applying the Johnson
principle in a constitutionally viable manner.
Bill C-2, the proposed tackling violent crime act also gives the Crown the ability to apply for a new dangerous
offender sentencing hearing if the first application was denied but the individual is later convicted of breaching their
long-term supervision order. It was made very clear to me by provincial Attorneys General when I met with them in
June of this year that they welcome this particular provision so that that individual can be brought back before the
As well, the proposed act proposes reforms to the Criminal Code's recognizance provisions vis-à-vis dangerous and
sexual offenders. It proposes to double from one year to two years the duration of protective court orders against
individuals who have been previously convicted of a sexual offence against a young person. This provision has been
universally supported everywhere I go. People tell me they like the provision. It also proposes to specifically authorize
courts to include conditions in these orders that the court considers necessary, such as, for example, conditions relating
to curfew, electronic monitoring, drug and alcohol prohibitions and treatments.
I am aware that there has been some debate concerning the constitutionality of the dangerous offender provisions,
and it is always possible that any time we pass legislation in Parliament it can be challenged in the courts. However, I
am satisfied that these reforms comport with and comply with the Canadian Charter of Rights and Freedoms as well as
the Canadian Bill of Rights.
These measures have been carefully tailored to provide a prospective, targeted and balanced response to the real and
pressing problem posed by dangerous offenders.
In summary, Bill C-2 proposes reforms to criminal law that are sorely needed. These reforms have a clear objective:
to protect all Canadians against violent crime.
You have had this bill since the end of November. You have had parts of this bill when the bill was broken up. I
think that Canadians deserve to have this legislation passed. As you know, it was overwhelmingly supported in the
House of Commons. I indicated to you that many organizations and Canadians, people in the law enforcement
agencies and people concerned with crime in this country have overwhelmingly urged the passage of this bill.
Tackling violent crime is a top priority. It is one of the important aspects of what we are trying to do as a
government. I am asking this committee and the Senate to do whatever it takes to have a look at this bill and pass it so
that this becomes the law of the country. Again, you are the masters of your own organization and schedule, of course,
but I am asking you to do whatever it takes.
I want you to know that these issues have been before Parliament for quite some time. The most recent of all the
components of this bill were introduced in late 2006. Some of them will be coming up for their second anniversary, and
they are still not the law of this country. I want to indicate to you that of course you will do whatever you believe is
appropriate, but if it becomes impossible or if the Senate cannot or will not pass this bill by the end of February, I do
not believe I would have any choice except to advise the Prime Minister that I believe that this is a confidence measure
and I will put the matter in his hands.
Again, thank you very much, Madam Chair. I appreciate the opportunity to be here. I am pleased to have with me
Catherine Kane, a senior general counsel at the Department of Justice Canada, as well as a number of individuals who
understand this bill.
This bill, I believe, is straightforward. I think the concepts here are understandable and justifiable. This is exactly
what this country wants and what it deserves. Thank you.
The Chair: Thank you, minister.
This may be the first time since 1867 that anyone has suggested that the Senate is a confidence chamber. For the
record, may I note that although we are all aware that the House of Commons has devoted considerable time to the
study of this bill, your appearance here today marks the first occasion upon which any Senate committee has been able
to examine any portion of this bill. All senators are proud of the work that Senate committees do and they take their
responsibilities, particularly in this committee, very seriously indeed. You and all Canadians can rest assured of that.
Mr. Nicholson: I am very pleased to hear that, senator. Again, my comments underline the importance that the
Government of Canada places on this particular piece of legislation. The bill spoke for itself, but I was pleased that we
received overwhelming support in the House of Commons and I am looking for that support here today.
The Chair: We are looking forward to our study of the bill.
I have a growing list of senators wishing to put questions to the minister. Unfortunately, his time with us is limited,
but we have already on the list senators Stratton, Carstairs, Oliver and Joyal.
Senator Stratton: With permission of the committee, I would like to table for your consideration the testimony
before the House of Commons on the committee stage of Bill C-2, as well as Bill C-10, Bill C-22, Bill C-27, Bill C-32
and Bill C-35 from the previous session.
The Chair: Is it agreed?
Hon. Senators: Agreed.
Senator Stratton: As I recall, in the last session of Parliament we had the age of consent issue before the Standing
Senate Committee on Legal and Constitutional Affairs or before the Senate, so it is not as though this bill, under
different names, had not been before us.
We believe that some witnesses scheduled to appear will focus their remarks on the mandatory minimum penalties
for serious firearms offences. We anticipate that they will argue that evidence suggests mandatory prison terms do not
deter criminals. Can the minister comment on these arguments?
Mr. Nicholson: I am very pleased to comment, senator. We believe this is an appropriate response. We have been
informed by police agencies that many times firearms offences, in these particular instances, are also part of gang-
related activity. You will note in your study of this that there is specific reference to gang-related activity with respect
to this offence.
One of the things this bill will do is help to break that up. We have been told that this will be one of the ways to do
that. Everyone is a part of that; we want to break up gang-related activity in this country. An individual who is serving
prison time for an offence of this nature will not be out on the street and will not be a part of that day-to-day gang
It also lessens the possibility of that individual reoffending. Five years in a federal penitentiary should focus that
individual's attention on the seriousness of his or her offence. Getting those people off the street would be welcome.
I think it sends out the appropriate message, quite frankly, that we, as a society, take firearms offences and gang-
related activity very seriously. I believe this particular legislation reflects the seriousness with which we take this type of
Senator Stratton: In my city, and Senator Carstairs' as well, we have serious gang-related offences utilizing firearms.
They appear to be drug related to quite a large degree.
The other question I have concerns the Latimer case. I believe Senator Carstairs raised the case of Robert Latimer in
an effort to explain the dangers of mandatory minimum release. Mr. Latimer killed his disabled daughter and has been
denied bail. What is your response to those who say that in this bill you are inadvertently targeting the Robert
Latimers of Canada instead of organized crime members?
Mr. Nicholson: The kind of behaviour and activity that we are talking about is very specific. We have a very clear list
of offences and we are very clear on the kind of activity. We are talking about people who are using a gun, usually a
pistol, and committing serious offences in this country. I think this particular kind of activity is very specific, as is the
People say, is this a complicated bill? I do not think it is that complicated. It makes a clear statement as to the kind
of activity that is covered. I get push-back on this, and it is not a coincidence. The Premier of Ontario is not supporting
this bill because he wants to help me out particularly or the members of my government. If he does, God bless him; that
is a wonderful thing. I am just telling you that he and others who have made comments with respect to problems with
guns want this bill passed because they think this is a step in the right direction, and I agree with them. I think this is a
step in the right direction. It is not just something that we cooked up at the Department of Justice Canada or because
we want to be miserable with some individuals. That is not the case at all. We want to send out a clear message that this
kind of activity is completely unacceptable in Canada and that there will be serious consequences for individuals who
do engage in this kind of activity — specifically, on this particular section, people who are committing crimes with
Senator Carstairs: Let me clarify that Mr. Latimer was never denied bail. He was denied parole. He has applied for
an appeal and is presently before the court — the National Parole Board — so we should not discuss it at this point.
Mr. Nicholson: And I did not, senator, just for the record. I never discuss specific cases.
Senator Carstairs: In terms of your wish to expedite this bill, I think it is necessary to put on the record the history of
this bill in the House of Commons. It was first introduced, in terms of firearms, on May 4, 2006. It had third reading in
2007, over one year later. Age of consent was introduced in June 2006, but your government did not bother to speak to
it until October 30, 2006. The bill received third reading in the House of Commons in 2007.
The provisions regarding dangerous offenders were introduced in the House of Commons on October 17, 2006.
They did not receive second reading until May 4, 2007.
The impaired driving provisions were introduced in the House of Commons on November 21, 2006, and were not
given second reading until February 6, 2007.
Firearms-related offences with respect to reverse onus were introduced November 23, 2006, and did not get second
reading until March 27, 2007, and did not get third reading until June 5, 2007.
We received this bill in its new form on November 29, 2007. We gave it first reading and second reading by
December 12, 2007, and referred it to committee. We then adjourned for the recess. For your Minister of Public Safety
to say that we have had this bill for 68 days would be like saying, minister, that you had not been in the House of
Commons for 68 days because we were all off for the Christmas recess.
Now you are saying that we should give you this bill in two weeks. If we were to do that — and you have referred to
the end of February, but there is also a break week in February — that would be four sessions of this committee as
opposed to 50 sessions in the House of Commons. Why do you think senators should accept less responsibility under
the Constitution than members of the House of Commons?
Mr. Nicholson: Thank you very much for your comments, senator.
You are right on a number of those bills. In fact, the first one that you mention and the one that Senator Stratton
talked about — mandatory penalties for people who commit firearms offences — was a long time in committee. I, for
one, would have liked to have seen it get through the committee much more quickly. However, as you would know,
senator, I represent a party that does not hold a majority in the committee, indeed in any committee of the House of
Commons or the Senate, for that matter. I have been before that committee and I have asked them the same thing — to
try and move these things that Canadians want through the legislative process as quickly as possible.
I have to tell you quite honestly that some of these issues have been around a long time. They have been studied and
they have been in the public forum — as you pointed out, some of them for almost two years. I will tell you how
incredible it gets. When I was at home at Christmas, I had a number of people and members of the police force
congratulating me. They said, ``Congratulations, you got your bill through.'' I said, ``Hang on; thank you, I appreciate
that.'' However, the legislative process is such that the bill was passed in the House of Commons in November, but I
have to get it through the Senate. It is a centrepiece of what we are trying to do as a government. I think we are
responding to what Canadians want us to do. That is what I am asking you to do. I am not asking you to do it in two
meetings. If it takes four or six meetings this week or until the end of the month, I am asking you to please do that.
Have a look at that. I think this bill is straight forward. Some of these things have been around a long time.
As Senator Stratton pointed out, the age-of-consent bill was before the Senate. It is the same one. It is the same
issue. The issue is: Are 14-year-olds and 15-year-olds going to be better protected in this country from sexual
predators? I had one police officer tell me a character from Texas who was 40-years-old showed up in Canada after
having an online chat with a 14-year-old. The police throw up their hands and look to me. They say there is nothing
they can do for that 14-year-old. I tell them, I am doing my best. I told them that I will encourage my colleagues in the
House of Commons and in the Senate of Canada to get this bill passed because I think 14-year-old and 15-year-old
children deserve the protection that this bill provides.
As I indicated in my opening remarks, this is something left over from the 19th century, never mind the 20th
century. This is something that needs to be changed in this country. We are just bringing ourselves into line with a
number of other countries.
Thank you for your comments. I am asking you to do what you can to get this bill passed by the end of February.
Senator Carstairs: In terms of the last major piece of legislation that the government said was an absolute priority, it
was also called Bill C-2, the accountability legislation. Again, we were told that the Senate should get rid of it
immediately, that further study was not necessary, that it had been studied enough in the House of Commons. You
then, as a government, proceeded to introduce 75 amendments in the Senate of Canada.
When you say the House of Commons studies a bill and they have done it adequately, the proof is in the pudding.
Even your own signature piece of legislation required 75 amendments from you, not from the Senate. You introduced
75 amendments in this chamber.
Having said that, we have to do what is our constitutional responsibility and give this bill the appropriate study it
deserves. Mr. Minister, there are certain issues for which we as a Senate have particular responsibility. One is the issue
of minority rights. You did not address that in your opening comments.
We know the most highly incarcerated people in this country are our Aboriginal people — bar none. Witness after
witness in the House of Commons said that this bill will adversely impact our Aboriginal people. I would like to hear
Mr. Nicholson: I do not, with respect, accept any suggestion that adult sexual predators are specific to any group in
this country. This is a problem that affects all of Canadian society. Wherever I have gone in this country, people have
told me that this is exactly what Canada should have. These are reasonable proposals that send the correct message.
For example, if an individual receives a sentence for illegally discharging a pistol in a shopping mall and wounding
someone, the correct message is sent to that individual in that they know the seriousness with which society takes that
With respect to the other Bill C-2, we all want to get it right. I think most people would recognize that was a huge
step forward. It is the most comprehensive anticorruption legislation ever introduced, certainly in this country. I would
challenge people to find anything else in the world that corresponds and would be as effective as that original Federal
With respect to this piece of legislation, other jurisdictions in the world have already tried some of these things. I
mentioned the sexual predator from Texas. Why do you think he might want to come here? Because in his home state
of Texas he would be in trouble if he started to have sex with a 14-year-old. We have to update the Criminal Code.
That is our challenge. I am looking for your support and I need your help.
Senator Carstairs: My final question is with respect to the age of consent, which has been at 14 years since 1890. We
could argue that young women in 1890 were probably less sophisticated than young women today. However, you have
decided to raise the age of consent to 16. My question is a simple one: Why 16? Why not 18?
Mr. Nicholson: There are those who would argue that a 17-year-old is in a better position to decide whether to have
sexual activity. However, I think there is a consensus in this country. You do not have to take it from me; check with
Australia, the United Kingdom and many American jurisdictions that have systems similar to our own. Often, they put
it at 16 years as well. Is it perfect? No legislation is perfect, but leaving it at 14 and 15 years of age is wrong.
You are right that the current limit was established in 1890. That was, as you are probably aware, adapted from
English criminal law statutes that go back much further than that. This is why I say this is something left over from the
19th century and this proposal is long overdue.
You are making a suggestion that the age of consent should be higher. Let us go with what we have in this
legislation. Let us put it to 16 and I think Canadians will applaud us overwhelmingly for doing that.
Senator Oliver: Thank you for your introductory and comprehensive overview, Mr. Minister. It was useful to me in
understanding the overall scheme of the act.
One of the things this committee takes seriously is issues of constitutionality and the criminal law. In your opening
remarks, you referred to the Canadian Bill of Rights and the Charter of Rights and Freedoms. What steps have you
and your department taken to ensure all of the provisions of this act are Charter compliant?
Mr. Nicholson: You mentioned those two most important documents. This is part of the process that we go through
with all justice legislation. I had the privilege in the early 1990s of being a parliamentary secretary and being involved
with legislation. I was a member of the Standing Committee on Justice for six years before that. This is a responsibility
that we take seriously. It involves a number of things. We look to comments made by the courts. I specifically
mentioned R. v. Johnson, a Supreme Court of Canada decision from 2003. We studied it carefully to pick up what was
being suggested and recommended. We took that into consideration in the drafting process.
In the Department of Justice, problems will be recognized. They will work with those of us in political life in drafting
and proposing legislation. I am pleased and proud of that process. I work with a group of people who take those
constitutional responsibilities seriously. When I come before this committee or others, I have the confidence of
knowing that the department, along with my own input, is on the right track with these things and that they will pass
I generally am asked whether legislation will be challenged in court. That is always a possibility. Any time you
change the Criminal Code in this country, you are always open to the possibility that someone can challenge it. No
doubt, some lawyer defending some individual will try to do that. Having said that, however, I believe that we have
been careful in drafting these provisions. Again, I have confidence that the bill will pass muster.
I remember in 1992, for instance, being told over and over again, when we had a bill that made the simple possession
of child pornography a crime — and you can check the records on that — that there will be constitutional challenges to
this and it may offend the Charter, et cetera. I followed the progress of that over the years, and I was pleased that, yes,
in fact, the Department of Justice did get it right. It did wind its way through a number of court decisions. There have
been some modifications, but today it is a crime to possess child pornography. Again, as I urged my colleagues back in
early 1992, ``Let's go for it.'' We have the imprimatur of the Department of Justice. They have looked at this carefully,
so let us move forward. We should do this for Canadians.
Senator Oliver: In terms of the dangerous offender component of the bill, how will Bill C-2 change what the law is
now with respect to dangerous offenders? The determining issue appears to be not the offence or the offences that have
been committed but the offence that he or she is likely to commit. Could you elaborate on how that is determined in
Mr. Nicholson: It does several things. I mentioned in my previous answer to you the Johnson case, which has led to
some confusion with respect to the section. One of the tasks that we set out to correct was to clarify the relationship
between the long-term offender provisions and the dangerous offender provisions of the Criminal Code.
Have there been changes beyond just clarifying that? Yes. I indicated in my opening remarks the requirement on the
Crown to address the question of whether he or she wants to bring forward an application when a third serious offence
is involved, and we list those offences for you, again shifting the onus to the individual who has been convicted. We are
not talking about someone who has not been convicted or is innocent, but someone who has been convicted of these
offences. We are shifting that onus, which is a major change, to that individual to show why he or she should not be
designated a dangerous offender.
If you remember in my opening remarks — and I made that clear — that this is a rebuttable presumption, and the
judge has the absolute discretion with respect to the designation of a dangerous offender or to some other sentence.
Tying back into your previous question, I believe the constitutional protections that are necessary in all Criminal
Code legislation are available and are part of that particular section, but, again, it does a couple of things. I am urging
you to pass that.
Senator Joyal: Mr. Minister, if I may be candid with you, I was a little surprised with your comment that if the
Senate does not behave in a certain way you will report to the Prime Minister. That reminds me of section 51 of the
Criminal Code, which is entitled ``Intimidating Parliament''; compelling Parliament to do something, otherwise you
will incur the wrath of God.
You are in the Standing Senate Committee on Legal and Constitutional Affairs of the Senate. We have a specific
role when we review legislation. As much as we pay attention to the witnesses who have appeared in the other place,
the substance of their arguments, the interventions that have been made by the members on the other side and on the
amendments brought to a bill, an omnibus bill is always a nightmare because it puts together a variety of elements that
most of the time have nothing in common and are difficult to understand and measure in terms of their long-term
implications. In the other place, they are very much concerned with the impact of decisions and discussions on the
electorate. In this place, we are more concerned with the long-term implications of those measures. That is what we are
more interested in measuring and understanding.
Could we get from you and from Ms. Kane a list of the studies that you made on the impact of minimum
sentencing? You know very well that there are different views on that matter. I read in the other place that some studies
were alleged to conclude that they are effective and that they have a deterrent effect. However, when one reads those
studies, the conclusion is a little different. Could you give us a list of studies that have been conducted in the
Department of Justice that concur on the effectiveness of minimum sentencing?
Mr. Nicholson: Thank you very much for that question. You have raised a couple of issues.
Of course, I am very aware of the constitutional responsibilities of both chambers. You were candid with me and I
will be candid with you. You can do anything you want. You can debate this and study this thing for the next year, if
that is your wish, but I have a responsibility to the people who want to see this bill passed. Again, mine will be a
recommendation to the Prime Minister at some point, and I indicated to you it would be at the end of this month if we
are unable to expedite this and move this through. That would be my advice to him in as much as this is a cornerstone
of what we are proposing to the Canadian people. That is always our option, is it not? It is our option to go to the
people of Canada and ask them to decide on this or on other major questions. It is like a budget. Parliament has the
right to not pass a budget, but in our parliamentary system, as you know, the Prime Minister then is required, by
convention, to say, ``Okay, they have spoken, and now I will take it to the people.''
With respect to the effectiveness of long-term offences, it is very difficult to prove any prospective human behaviour,
as you would guess. However, I am quite certain that this bill will send out the appropriate message to individuals who
are contemplating this type of activity or getting involved with this kind of activity. Again, my take on it is anecdotal in
terms of law enforcement agencies that approach me or talk to me. Everywhere I go in this country, they tell me that
gang-related gun violence in this country is a problem, in particular in the major cities. That is why we have come
forward with this bill.
I believe Ms. Kane wanted to make one comment in that regard.
Catherine Kane, Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: Senator
Joyal, you asked about studies that the Department of Justice Canada conducted. There are a few studies on the
Government of Canada and Department of Justice website of which you may already be aware. For example, Julian
Roberts did a report on mandatory sentences of imprisonment in common law jurisdictions. This is a comparative
study that focused on the different minimum sentencing laws in place in common law countries. His conclusion was
that very few of the countries studied had examined the effects of minimum sentencing regimes on their crime rates.
Another study was done by Professors Thomas Gabor and Nicole Crutcher at the University of Ottawa. It was a
report on mandatory minimum penalties and their effects on crime, sentencing disparities and justice system
expenditures. That was a review of relevant social science and legal literature to assess the aspects of mandatory
minimum penalties. They concluded there were several methodological flaws in that area of research but that the
bottom line was that enhanced sentences for firearms infractions did show some promise.
Another one is the Meredith, Steinke and Palmer research on the application of section 85 of the Criminal Code.
That is an existing firearms provision with a mandatory minimum sentence of one year for using a firearm during the
commission of an offence. The authors there concluded that through the incapacitation aspect, the mandatory
minimum sentence did have a modest impact on crime rates for those particular offences.
Mr. Nicholson: I hope that is of some help to you, senator.
Senator Joyal: I concur with you that some studies have said that they do not know because the methodology was
not appropriate or comparable. They used different sets of statistics and different approaches.
Others have said that it is very difficult to come to a definite conclusion. Some have said that it might have an
impact. However, there is no burden of evidence from the studies that I have been able to look into that concludes in a
specific and compelling way that that approach to fighting crime is the most effective one in terms of reaching the
objective of creating a safer society and safer streets. If you were to tell me that there is a need for further studies and
that you are involved with managing that kind of statistical data to be collected and shared with us, I would agree with
that approach. However, from what I have been able to read — the studies that you quote and the others that have
been alleged in the discussions in the other place — there is no compelling evidence outside the belief.
I respect the belief — everyone believes whatever he or she wants to believe. However, that does not change the
reality or the impact of the measures when we want to change something fundamental in the principles of the criminal
law in this country.
At this stage, are you considering conducting studies on the impact that the measures you are proposing will have in
terms of reducing the crime rate in Canada?
Ms. Kane: When these amendments are passed, we will certainly be monitoring their effectiveness over time. The
data will be gathered now and into the future so that we can measure the impact that these minimum penalties have
had on firearms and other offences.
As the minister indicated, it is very difficult to pinpoint specific factors that impact on human behaviour.
Criminologists — and I am sure some will appear before this committee — will likely say that a variety of factors will
impact the rate of recidivism. Certainly, sentences are one of many of those factors, crime prevention being another,
along with a variety of programs, all of which the government is engaged in to have a comprehensive strategy to reduce
The Chair: If I may interrupt briefly, the minister's time with us is limited but the officials will be staying on. If we
could direct questions to the minister as long as we have him here, I would appreciate it.
Senator Joyal: My other question relates to the principle of proportionality in sentencing. You are aware that the
Criminal Code and the principle of sentencing established the principle of proportionality, which has been interpreted
in the Supreme Court in different circumstances and has been adjudicated. What brings you to the conclusion that
what you propose on those sentencing aspects of this bill meets the test of proportionality that the Supreme Court of
Canada has established in various cases? I have cases in front of me to that effect.
Mr. Nicholson: That is always a judgment call, is it not, senator? Every time we bring in a piece of legislation, we are
called upon to make that judgment call.
Over my 13 years as a parliamentarian, I was involved in dozens of changes to the Criminal Code. Every single time,
we have to make that judgment, whether something should be a two-year, five-year or a ten-year sentence. Sometimes
it is a result of changes in the crime; sometimes we criminalize activity that was not criminalized before — for instance,
the identity theft bill from the House of Commons. We are criminalizing some behaviour that has never been
Again, we draw conclusions based on the seriousness with which the problem affects society. Every time we bring a
bill forward, we try to put some parameters on it. Why something is a five-year maximum as opposed to a ten-year
maximum is a judgment call by those of us who are called upon to make those decisions, and we do it. We take that
into consideration in terms of other offences within the Criminal Code to ensure it lines up. That is a major challenge,
as you know. We do not just write the Criminal Code all at once. We have taken it and modified it. Every time we do,
we look to other provisions of the Criminal Code to see if that activity fits in proportionately with other activities. We
have a look at changes in the type of crime.
I mentioned identity theft as a perfect example of changes that are taking place in society. That is our challenge: to
try to keep up with those changes and to initiate legislation that is fair on either maximum sentences or, on a couple of
occasions here, minimum sentences. We try to have that proportionality to give guidance to the courts. I think that is
our role as legislators.
Senator Joyal: Could you give us the study that you used to establish the scale that you are proposing in this bill in
relation to other offences in the Criminal Code?
Mr. Nicholson: It is not a study, senator. It is the usual practice that we do. Any time that we make changes to the
Criminal Code, we look at these things very carefully and then we proceed. Again, we look at each of them to see that
they comply with the Charter and the Canadian Bill of Rights. We do that as part of our drafting.
Senator Joyal: It is not part of an analysis of comparable offences and levels of proportionality in terms of what
existed already in the code, is that it?
Mr. Nicholson: Of course it is. We study each piece of legislation that we have and try to ensure that it will fit into
the existing Criminal Code. Of course, we look at others. I gave you the example of identity theft. For the individual
who is collecting people's personal data, we have a look at the offence of actually using the phoney credit card or using
that information and try to make it proportionate. We do that by our analysis of every single piece of legislation we
bring before Parliament, and we will continue to do that because that is the way it has always been done. It has worked
Senator Joyal: You cannot share with us the studies that you have done?
Mr. Nicholson: No, I have no study for that.
Senator Andreychuk: Some of the charm of being later on the list of questioners is that one can respond to one's
colleagues as one puts a question to the minister.
Senator Carstairs has pointed out and tracked how these bills work their way through the House of Commons. In
this place, we take pride in our long-term studies, our tracking of legislation and the expertise we gain by sitting day in
and day out and year in and year out. No doubt you respect that, so I will not belabour the point.
We have studied a lot of criminal bills in my time here. We have also put a lot of emphasis on tracking data to find
out whether the government of the time is right. They choose an option and then we want to know if they are right.
We put pressure on Statistics Canada to start collecting the data. In virtually every piece of legislation where we had
some doubts, we have put in a review mechanism for ourselves. I must say that we have not always followed up on our
own mechanisms, and we should perhaps do a better job in that regard. My concern is that we have used the legal
answer to any societal problem. There is always a legal element but there are also other types of elements.
When you started speaking, I was intrigued when you said you are tracking violent crime. You are separating, as I
understand it, violent crimes and putting your emphasis on that in a legal aspect. Can you elaborate, first, on whether I
have that right?
Second, young people are no longer facing the situations you and I did. I have some idea of your age, so I will
identify myself with you. I think we live in a different world now. Cyberspace has made a difference, the threats are
different and so on. Do you have a corresponding balance on preventive services and issues? You want to track violent
crime so that we can put our emphasis on criminality. Do we have something to balance it?
Mr. Nicholson: There is no question about that, senator. Thank you for raising that point. You must have a
comprehensive approach to these issues, and I am pleased that we do. You would know that many times these
questions of guns and gangs and drugs are also part of that component.
Last June, when our Prime Minister announced the National Anti-Drug Strategy, I was pleased that two thirds of
the new money going into that program was for prevention and education. This has to be a part of it. I appear before
you generally as one component of this strategy, fixing the penalties to ensure that they are appropriate for the type of
activity, but I am pleased it is a part of a greater whole.
We do not want people mixed up in gangs. We do not want them to be mixed up with illegal firearms and drugs. All
of society benefits when people take a different path. Again, that is an example of what we are talking about. It is like
the drug courts. I am a supporter of that. If we can get people who become addicted or people who get caught with an
illegal drug out of that milieu, we all benefit. They benefit particularly, but of course society benefits.
This particular bill zeros in on violent crime, and that is appropriate. You are quite correct. You have had the
provisions with respect to firearms in the Senate, and it is a part of this. Even the one that I talk about, protecting 14-
year-olds and 15-year-olds, has been before the Senate. I am not suggesting that you have not had a look at these
issues. I know you have, and I welcome that. I am glad you have had the opportunity to look at a number of these
issues, and I trust in your experience and am looking forward to support.
Senator Andreychuk: I have one more question on dangerous offenders. There certainly was discussion and I have
received emails about the impact on the Aboriginal community. In my province, the victims are often Aboriginals. As I
understand, this bill in no way changes our law in that the designation of dangerous offenders will apply to all. In other
words, the criminal law applies to all, but we have put into our Criminal Code a sentencing provision to take into
account the background of the Aboriginals. Again, that is at the sentencing stage. However, as I understand it, under
the dangerous offender provisions there is a rigorous approach to go through to make a dangerous offender
determination. There is equal applicability in the sense that victims are victims are victims, and the community needs
the same protection. In other words, you are not making distinctions. Sentencing under the criminal law is equal for all
Mr. Nicholson: I should point out that the existing sentencing principle that particular attention must be paid in
circumstances of an Aboriginal offender is not altered in any way.
You also made a very good point with respect to victims of crime. As you know, we appointed the first federal
ombudsman for victims of crime. That is consistent with the message that we are trying to put forward, which is that
we will stand up for victims. We are worried about victims in society. You are quite correct that they cover all ethnic
and racial groups in this country — city, urban and rural. Anyone can be a victim in this country, and there is no
discrimination there. You have raised an important point.
Senator Milne: Mr. Minister, I quite agree with you that we are all very concerned about violent crime. However, if
you are tracking violent crime, as Senator Andreychuk has said and you have agreed, then I hope you can answer some
of my questions about the bail reform clause in this bill, the reverse onus clause, clause 37.
I understand that when introducing this initiative in the House of Commons, the Prime Minister used the statistic
that in Toronto nearly 40 per cent of crime involving firearms in 2006 was committed by someone who was on bail,
parole, temporary absence or probation. I believe that figure is true.
However, when he was testifying before the committee in the other place, Anthony Doob, a criminologist,
concluded that the data used to produce that particular statistic would also be able to tell us how many of this nearly
40 per cent of gun crimes were committed by people who had been released on bail for previous firearms offences. This
is the particular offence that is addressed by clause 37 of this bill. Of that 40 per cent, how many would the reverse onus
clause in this bill have applied to?
Mr. Nicholson: I do not have those statistics, but the Prime Minister was underlining the fact that this is a major
problem. Quite frankly, one of the by-products of this has been related to me. You mentioned Toronto. Police in
Toronto tell me that if an individual who has a record of firearms problems or is in breach of the recognizance orders is
immediately sent back out onto the street on bail because he or she is facing another crime, it sends out exactly the
wrong message. They tell me it is a wrong message to the person who, for instance, has been wounded. They are always
looking for witnesses to come forward. Well, if the guy is back on the street in three hours, they tell me that is
intimidating. This is what I have been told anecdotally from the police.
Senator Milne: I would agree with that.
Mr. Nicholson: We are saying to you that this bill is a step in the right direction. It actually sends the right message
out to a neighbourhood. If someone who is repeatedly getting involved with firearms problems is off the street, that
sends a message, and it is just the opposite if they are out on bail. Yes, I think it is a step in the right direction, one that
Senator Milne: I quite agree with you, sir, but with all the polling that your department is doing, and the Prime
Minister used this statistic, surely your department has access to how many of those 40 per cent of gun crimes were
committed by people out on bail for firearms offences. This is something that I believe we should know. That was
quoted 10 months ago. You have had 10 months to think about it and to provide those statistics.
Ms. Kane: Senator Milne, I could add —
Senator Milne: I would prefer the minister to answer because we have such limited time with him.
The Chair: Precisely. Ms. Kane, we will be interested in what you have to say later.
Mr. Nicholson: I do not have a breakdown of those statistics with me, senator. If it is available, I will certainly
forward it to you. If it means you may be supporting this bill, I will work very hard on this, if it is critical to you.
Again, I think this is an initiative and a section of the bill that will stand on its own. As I say, I am sure you will hear
from people in the law enforcement community that this is just the message that needs to be sent out.
Senator Milne: As a matter of principle, I quite agree with you that we have to get these violent people off the street.
Gun crimes horrify me. However, reverse onus also gives me great pause to think.
Is it true that your department commissioned EKOS Research Associates to perform an in-depth 160-page study of
justice issues in Canada in March of last year? I believe that 4,500 Canadians were surveyed on that issue, but you did
not ask them how they felt about reverse onus or any aspect of the bail regime. Why not?
Mr. Nicholson: I have been told by Ms. Kane that we actually did not commission the study you are referring to.
The 40 per cent actually comes from the Toronto police. There may be a mix of the two things. I will not be here much
longer, and I hope you will pursue it with the officials.
Senator Milne: Since the department has done 14 public opinion research projects worth over $600,000 in 2006 and
2007, it is quite likely that it was one of the other ones rather than the one that came from the police. It was the EKOS
one in March of 2007.
It has been well documented that many of Canada's prisons and detention centres are currently overpopulated, so
you can reasonably predict that with these new bail provisions and this new act there will be quite an increase in our jail
population. Your government has remained silent on committing additional funding for the correctional system in
Canada. How effective will these changes be if we have nowhere to house these people?
Mr. Nicholson: Senator, I truly hope people get the message and will not get involved with activities that will require
them to be detained. That is one point. I have been assured by my colleague Stockwell Day that we have the capacity to
handle the changes. I encourage you to make those changes and we will monitor them carefully because we want them
Senator Baker: Minister, you have given us until the end of the month to finish consideration of this bill. In fact, you
want us to pass everything by the end of February. I presume you are demanding that we spend all of our time on this
Mr. Nicholson: Senator, I know you are up to the task. You have had great challenges in your career. Remember the
free trade agreement in 1988? We worked around the clock and did what it took. There were a number of bills that you
would be aware of that put demands on the time and resources available. I have every confidence that you will meet
that challenge, as you have these last 24 years.
Senator Baker: I trust we will not be given any more bills with a deadline over the next couple of weeks that will
interfere with the examination of this bill.
Mr. Nicholson: I am so focused on Bill C-2 and nothing would make me happier than if this bill gets Royal Assent in
the next three weeks. I think there will be celebrations in this country among people who look at these things.
Senator Baker: You said recently in the House of Commons that we have to pass another bill that we do not even
have yet by February 23.
Senator LeBreton: We do have it.
Senator Baker: When did it arrive?
Senator LeBreton: This afternoon.
Senator Baker: I see. Therefore, we have to pass that by February 23, but the minister has told us we have to spend
all our time on Bill C-2. Is there not another one as well?
Senator LeBreton: That is in the Special Senate Committee on Anti-terrorism.
Senator Baker: We will obviously have to deal with some bills without much consideration, certainly not sober
First, I have an observation, Mr. Minister. I examined some of the minimum sentences and found them to be within
the normal sentences given in judgments concerning these cases. However, leeway has to be given to a judge in certain
circumstances. For example, a firearm under the Criminal Code is described as a barrelled weapon that shoots a
projectile. Therefore, the courts have interpreted that to include a BB gun. A weapon is not just a baseball bat but also
this pencil I may throw at you.
I think ordinary Canadians are interested in the new law to which they will be subjected, especially senior citizens
who are on prescription drugs. The new provisions regarding drug-impaired driving include not only illegal drugs, but
prescription drugs as well.
The indicia established in law of someone who would be pulled over at roadside to be examined under this section is
someone who may be driving slowly and taking turns slowly. I have read a lot of case law on this. That person under
this new legislation will then be subjected to a physical coordination test at roadside. I am wondering if you can tell the
committee what these tests will be.
We understand that a senior who may be on medication and may be drug impaired while driving will have to subject
him or herself to a hopping test in a straight line. Could you verify that and provide to the committee the tests that will
be given? Surely you know this. Surely you have been before the House of Commons committee that has spent a lot of
time on this and have given them a copy of the tests that will have to be done at roadside. Surely you will not tell the
committee that you have not even been asked the question before. What types of tests will these seniors have to go
through at roadside?
The bill says that all this will be televised, that there will be a camera just like in the U.S. The U.S. does not have
section 9 of the Charter, arbitrary detention. The other provisions you referred to regarding impaired driving violated
the Charter but were found satisfactory under section 1 of the Charter because of the carnage on our highways.
This is a longer exercise on which you are about to embark. If the senior citizen in this particular case cannot
perform that test, then they go on to do urine analysis at the police station. If they are unable to perform that, then
they are guilty of the offence. Should they refuse to do the hopping exercise — which some of us have called the Harper
hop since it is his legislation — they are found guilty of the offence under this legislation. That is not new because
under the old legislation, if you refuse, you are found guilty.
Could you tell us the tests that the person has to do at roadside, what hoops they have to go through, what exercises
they have to perform, physical coordination tests, et cetera?
As I understand if, I would not be able to do them at roadside.
Mr. Nicholson: I do not know about that.
Senator Baker: Could you tell the committee what those tests are?
Mr. Nicholson: You covered a lot of ground there. I would not presume to comment on the questions I received
before the House of Commons, just as I would not comment on questions I received before the Senate. Both chambers,
as you know, take these pieces of legislation seriously.
I know you are probably aware that the provisions with respect to impaired driving were introduced by the Liberal
government that preceded ours.
Senator Baker: Together with the decriminalization of marijuana.
Mr. Nicholson: As sometimes happens, legislation does not get through Parliament, and I know it is a challenge for
every government and particularly for a minority Parliament. Therefore, sometimes it is incumbent upon a subsequent
government to reintroduce elements of that legislation that are in the best interests of Canada.
Senator Baker: Half the legislation.
Mr. Nicholson: Talking about impairment, age does not matter. Tests are available, as you have indicated, that help
in determining that. I know they will be done in a sensitive, reasonable manner at all times. Mothers Against Drunk
Driving recently came out and encouraged us to move forward on this as the measures are a step in the right direction.
Do I or does anyone say this is perfect? Nobody says these things are perfect, but they are substantial improvements
on what we have. Drugs alone, or sometimes in combination with alcohol, come into play and we need a regime to
address it. This regime, as I indicated in my opening remarks, has been in the United States since the 1980s and was
introduced in Canada in the late 1990s. It exists now, but this codification is a step in the right direction.
Senator Fox: I have three questions for the minister. My first question deals with your opening statement. I would
like to have a better understanding of your view of the constraints on this committee. In your statement, you said that
you were opposed to crime. I, too, am opposed to crime, as is everyone in the room. We are opposed to violence and to
street gangs. We all want to keep society safe, we would like to see fewer victims and, to the extent possible, to see the
people who commit these offences rehabilitated.
When a bill is presented that deals with human behaviour, there can be different points of view about the best way to
In future hearings, we will be hearing from witnesses who do not at all share the minister's view of the best way to
Is the minister telling us in advance that he would not accept amendments from this committee should we succeed in
pointing out gaps, shortcomings or undesirable consequences in his legislation?
Mr. Nicholson: That is a fair comment. The bill and its provisions have been in the public forum for almost up to
two years. I believe we have got it right, and I am asking you to pass this bill without any substantial amendments.
Senator Fox: Let me ask my second question, Mr. Minister, so that I can better understand your point of view. As
you presented the bill, you quoted associations of chiefs of police and the premier of Ontario in some detail, and, to
attain the objectives of the bill, you are advocating the ex post facto approach of punishing those who have been
convicted. I am surprised that you do not quote, for example, the Canadian Association of Chiefs of Police or the
national assembly of Quebec, both of whom support gun control.
Why do you reject the opinion of police chiefs in one matter and not in the other? Why not accept the police chief's
view that gun control would be very effective in reducing the number of criminal acts?
Mr. Nicholson: I will go back over my opening statement. I think you said I quoted at length the police chiefs and
the Premier of Ontario. I do not remember quoting them at length, but I certainly indicated that both — in one case the
organization and in the other the Premier of Ontario — are urging the passage of this particular bill. Again, it may be
the case that there are disagreements on certain aspects between various organizations. Firearms are heavily regulated
in this country, as you know, at the present time, and we are building on that with this piece of legislation. I can tell you
it has received widespread support. People tell me that everywhere I go.
However, if you are talking about the long gun registry, I agree with you that there is some disagreement on that.
Senator Fox: I come back to the question of minimum sentences. At another stage of my life, I held other positions
and I had the opportunity to visit some penitentiaries in Canada, including the prison for women in Kingston. There, I
met some Canadian university girls who had been sentenced to seven years for importing small quantities of marijuana.
They had crossed the Canada-U.S.A. border with a small amount of drugs and the judge had no choice but to send
them to prison for seven years.
This situation clearly demonstrates the problem that is inherent when we lack confidence in appeals court judges
and impose minimum sentences. That example made a real impact on me; it raised doubts in my mind then, as it does
today, about the decision to impose minimum sentences rather than to rely on the wisdom of the judges whom you
Mr. Nicholson: With respect to drugs, I believe that particular section has been struck down by the courts. I
understand your point, but I think what you will get is a mandatory prison term bill on drugs as well, and that sends a
clear message out to people who are importing or exporting.
With respect to our role as legislators, for many years I was involved with criminal law legislation, and we had to set
a maximum. I suppose you could say to me, ``Why did not you just leave it up to the judge? The judge can decide what
the maximum is.'' However, I felt it was a reasonable part of the responsibility of a legislator to classify certain offences
by putting in a maximum. I say the same thing with respect to minimums. We are giving those guidelines to the courts,
and it has been a long-established tradition.
With respect to the minimum sentences, they have been around for at least 30 years in this country, and with respect
to the maximums, of course, they have been with us much longer. The guidelines we give are our responsibility as
legislators, and I welcome that responsibility.
The Chair: Thank you minister. We did manage to squeak in a goodly number of senators on that first round with
you. For that we are grateful because you stayed a little longer than was originally planned, and that is certainly
The minister has to leave now, but Ms. Kane will remain with us, and she will be joined by Carole Morency, Acting
General Counsel, Criminal Law Policy Section; Doug Hoover, Counsel, Criminal Law Policy Section; Julie Besner,
Counsel, Criminal Law Policy Section; and Greg Yost, Counsel, Criminal Law Policy Section.
Senator Joyal: My question is for Ms. Kane, but other witnesses might want to follow up.
In reference to the drug-impaired driving section of the bill, I understand that a study in relation to the impact of
minimum sentencing was done by David Paciocco and Julian Roberts from the Canada Safety Council, in February
2005. In that study, they conclude the following:
. . . there is little correlation between the severity of sentences and number of offences. What has the greatest
impact on patterns of offending is publicizing apprehension rates, or increasing the probability of being caught.
In other words, it is through education and prevention that the greatest deterrence exists.
In addition, increasing the severity of punishment as a means of deterring crime assumes that offenders are aware of
and respond to the sentence for a crime they are planning to commit. In other words, we come back to the same
elements of information.
On which study in particular did you base your conclusion that what you propose in the bill would have, in the
longer term, an impact on the reduction of drug-impaired driving?
Ms. Kane: The provisions with respect to drug-impaired driving are aimed at doing a variety things, not only to
increase the penalties. The increases in the penalties in the regime are quite modest. They are to bring in line the
minimum penalties with today's standards because the penalties have been unchanged for many years.
However, the main thrust is to permit the police to have the tools they need to better detect drug-impaired driving.
As have you noted in that study, at the front end, a greater opportunity to be apprehended and stopped from your
drug-impaired driving will have a better benefit in the long term, and the drug-impaired driving provisions will give the
police those tools.
I would like to call upon my colleague Mr. Yost because he is our expert on impaired driving and drug-impaired
driving. He can add more.
Greg Yost, Counsel, Criminal Law Policy Section, Department of Justice Canada: With respect to the sentencing, the
minimum fine goes from $600 to $1,000. A second-time offender goes from 14 days to 30 days and a third-time
offender goes from the current 90 days to 120 days. In each case, those are not major changes. The most significant is
probably the increase for third-time offenders because they will not now be eligible for an intermittent sentence.
These proposals were developed in response to a view held by many in the law enforcement community and
elsewhere that for second-time and third-time offenders 14 days for impaired driving is a slap on the wrist, as impaired
driving causes more injuries and deaths than any other criminal offence in Canada.
Drug-impaired driving is just a form of impaired driving. The legislation will make it clear that a combination of
drugs and alcohol can produce impairment. We have many studies that show that small amounts of marijuana, in
particular, and small amounts of alcohol can produce severe impairment. We have the Drug Recognition Expert
Program in Canada and it has been accepted in the courts. The International Association of Chiefs of Police currently
runs it. They have a committee of medical experts that advises them on what should be looked for and what the
training should be. Our problem is that as the legislation exists today it is silent and there is no way to compel a person
who is believed, on reasonable grounds, to be drug impaired to go through these tests in order that the drug
recognition expert can make a call on what kind of drug is causing the impairment. There is then a toxicological test
that will confirm or disprove the suspicion of the drug recognition expert.
The main change in the legislation is that when people are asked by a police officer to go to the station to be looked
at by an expert to determine whether they are using drugs, they will no longer be able to refuse, as they can now.
Senator Joyal: Can you give us the citations of the studies to which you referred that you say measure the impact of
drug consumption? You spoke of the impacts of the combination of marijuana and alcohol.
Mr. Yost: In my office I have a CD from the International Conference on Alcohol, Drugs and Traffic Safety held in
Seattle this year. An entire section was devoted to marijuana and its effects on driving. I will print that and provide it to
the committee clerk.
Senator Joyal: Those studies were concluded after the bill was tabled in the House of Commons.
Mr. Yost: Most of those study results have been well known among a limited number of experts, including Canadian
experts in the field. Some of the information was new, but some of the tests have been run for a few years. It is building
on information that we had before.
Senator Joyal: Are you aware that there are studies that come to different conclusions than the ones you spoke of
Mr. Yost: The material I will provide to you includes information on studies done in early times, including dosages
and the conditions under which the studies were carried out. You will recall that when the Senate was considering the
decriminalizing of marijuana, it was suggested that a level of .04 of marijuana would constitute an offence; so it has
been known for some time that marijuana plus a small amount of alcohol produces a serious amount of impairment.
Senator Joyal: Are there no other studies in the department than the one to which you referred that came from a
seminar in Seattle?
Mr. Yost: The Department of Justice Canada does not carry out these kinds of studies into the effects of drugs.
Those are done by researchers at universities, generally under health grants and such things. No direct study has been
done by the Department of Justice.
Senator Joyal: The Department of Justice commissioned no studies on the conclusions of which it based the
proposition of these provisions in Bill C-2?
Ms. Kane: The Department of Justice has a long relationship with the Canadian Society of Forensic Science that has
both an alcohol test committee and a drug committee. The drug committee has been providing advice for
approximately 12 years about the need for a scheme to address drug-impaired driving. They have provided a great deal
of information over the years about the scientific evidence on the impairment abilities of drugs.
The issue is not simply the presence of a drug in a person's system, but rather the fact that that drug has impaired
them. The preliminary tests that are done will be used as part of the evidence to show that not only did that person
have a drug in their system — that is merely confirmatory — but also that they were impaired by that drug. It is a
traffic safety issue. If you are impaired by a drug or by alcohol, you should not be driving.
Senator Joyal: The Canada Safety Council has run some evaluations of the impact of drug consumption versus
alcohol consumption. Do you have studies that justify the position you are espousing? I understand your rationale, but
there is another rationale in this context, which is why I am trying to get helpful information rather than only belief.
Everyone has belief and perception, but we are not here to talk about belief; we are here trying to understand the facts.
We need statistics based on real investigation rather than a perception that this will work. Putting someone in prison
works because it takes the person off the street, but putting that person in prison does not solve the problem at all. It
deals with the problem temporarily, but when the person leaves prison, the problem is bigger.
That is why we want the Department of Justice to reveal the rational evidence upon which it has concluded that this
is the correct solution. I am labouring to get something from you, but it is very difficult.
Ms. Kane: Your committee may be hearing from the police, who have a lot of first-hand information about the
drug-impaired aspects of alcohol. The Canadian Centre on Substance Abuse, the Traffic Injury Research Foundation
or members of the Canadian Society of Forensic Science drug and alcohol committee would be good witnesses to
explain the underpinnings of why this is so important. Our task is to develop the legal regime for the Drug Recognition
Expert Program and the drug-impaired driving provisions.
Senator Stratton: The Special Senate Committee on Aging heard a presentation by the Insurance Bureau of Canada
expressing their concern about people driving under the influence of drugs. They want something done about it. I think
there is a push on that side as well. We must be cognizant of that fact as we go down this road.
Senator Joyal: Thank you, senator. What you said makes sense. There is no question that there are different
circumstances. For example, we have raised the issue of identity theft many times at this committee. There is a
provision in this bill dealing with identity theft, which everyone will welcome.
However, once we have identified that there is a need to intervene, we need to understand the methods of
intervention and the approach to sentencing, with the accumulation of penalties and so on. Those are the overall
elements of the system you want to put in place and the one that we want to understand.
It seems difficult in relation to this and other sections of the bill to get the objective information or the data that
justifies or explains coolly, outside the political debate, that those are inescapable facts and that is how it could be best
approached and addressed. That is essentially what I am trying to ask.
Senator Stratton: You and I could debate that forever. The witnesses are here and I wanted to clarify that because
we could go on forever. For example, there is mandatory testing for seniors in one Scandinavian country; in another,
there is no mandatory testing when you get older. Guess what? The statistics are no different. You can get all the data,
but you must make decisions. Anyway, I have gone too far.
The Chair: I have a supplementary question on this issue connected with prescription drugs. We all know that some
drugs can have a profound effect on a person for whom they have not been prescribed. They can impair that person.
However, the same drug, taken under medical supervision, can simply restore another person to normal functioning. I
would love to have you tell me I am wrong, but as I read this bill, that kind of defence is no longer available. Am I
Ms. Kane: I would begin by saying that this is about driving while impaired. If you were taking a drug that restores
you to being perfectly fit and having all your capacity, you would not be impaired. If someone else was taking that
drug, it might impair them.
The Chair: The drug would still be in my bloodstream.
Ms. Kane: You would not be subject to the testing if there were no indicia of impairment before you got to that
point. Perhaps Mr. Yost can take you through the quick steps of the process and how that would unfold from the time
the police officer would stop the car to the time the sample would be demanded. Would that be of assistance?
The Chair: I think he has done a bit of that. We can all read the documentation and the bill itself. However, I remain
concerned. I am wondering why that element of defence is gone or if, as I read this bill, it is gone.
We all know that things can happen where police will stop you even though you might not be impaired. Maybe your
car skidded on a patch of black ice and the policeman did not see the black ice. I would like a bit more explanation of
the reasoning behind the way this all fits together.
Ms. Kane: If you are stopped for a reason other than being suspected of impaired driving, the police officer will still
have to observe — after he asks you some basic questions about why your car went off the road — some evidence of
impairment that gives him a suspicion to make the next demand that you do the roadside sobriety tests. It will not be a
random request for you to undergo the tests; he will have to have that suspicion before he proceeds to the next level.
If you go through these roadside field sobriety tests and there is further belief on the part of the police officer that
you are impaired, but you do an alcohol screening device and it does not indicate you are impaired by alcohol, that
leads to the notion you may be impaired by a drug. Then you are off to the next step for the drug recognition expert,
who will administer a battery of tests and will even come to a conclusion as to the type of drug causing the impairment.
The training that is done for these officers has been evaluated. It has shown that, once trained, they are very precise
in determining if you have consumed a barbiturate, narcotic and so on. The sample that is then demanded as the last
step confirms what drug you have in your system.
That leads you to the charge of impaired by drug or impaired driving. It does not deny you of a defence if you have
some other defence. The defence may not be that you were allowed to take those drugs and it was a prescription, if they
impaired you. However, it is not denying you other defences that you would otherwise have. As I am sure most of us
have observed, when you receive prescription medication, often there is a clear warning on the label to tell you not to
The Chair: I will be interested to see how this all plays out as we move forward.
Senator Andreychuk: This is reminiscent of when we started the impaired offense. I am old enough to have been
around before Breathalyzers. It was always the physical test. We would say it is not reverse onus, but often the accused
had to say, ``I was on something else,'' or ``I did not know there was booze in my drink.'' We then had to go through a
series of tests before we got the bottom line — the training, et cetera.
We are starting again, really, in this drug field in the same way because there is a notice on you to take your
prescription drugs as you are directed. You cannot say, ``I have a prescription drug and am therefore exempt.'' We will
probably have some period of uncertainty as we go through some testing. We are really reopening the old pre-machine
testing. It is a judgment call by officers who need to be trained.
Ms. Kane: It is certainly an evolution in the ability of the police to better detect impaired driving, but there is
nothing new about the offence of drug-impaired driving. It has always been an offence — impaired by alcohol or
Police have been using these Drug Recognition Expert Programs on a voluntary basis for a number of years, but
they are relying on a voluntary consent of the driver to provide the confirmatory sample. That sample will now be
mandatory. The program will become more national. As you noted, it will become part of the way of life — police
enforcement of impaired driving. The officers are very carefully trained.
Senator Milne: This all raises questions in my mind as to what would happen if my car slid on black ice and I was
stone cold sober. I am extremely arthritic. I am on medication for arthritis, and there is no way on God's green earth
that I could do the Harper hop — I do like that term.
Senator Baker: You will be stopped when you leave this room.
Senator Stratton: So will I.
Senator Milne: In many cases, there is no way that people can walk a straight line — I stagger. I have some concerns
My main concern about the bill, following on from what Senator Joyal talked about, stems from all these public
opinion research projects that have been done, yet you still cannot provide us with the facts and figures to back up the
necessity for some of the sections in this bill.
The minister said he would be glad to provide me with anything that would help me come to a positive conclusion.
Since the Prime Minister quoted this study that you seem to think was a Toronto police study, could we have a copy?
Ms. Kane: I am not familiar with the specific quote that you are attributing to the Prime Minister. With respect to
the bail-firearms issue that you raised, we are aware of comments made about a year ago by the Toronto police about
their experience. However, this was not nationwide data and did not indicate offences committed by someone on bail
for a firearms offence. It was more generic — offences committed by a person on some sort of supervision order. We
were not aware of what that supervision order was for and whether or not the previous charge had been firearms
related. Our information about that is only as we had read it as well. It was not a study that the Department of Justice
Canada had commissioned.
The Canadian Centre for Justice Statistics is working with us to collect some data now that provinces will contribute
to, but we do not have any data at the moment that would pinpoint the number of people who are charged with
offences while they are released on bail or what their previous charge was.
Senator Milne: The Prime Minister used this figure when he introduced the bill, I understand, on a platform with the
Mayor of Toronto and the Premier of Ontario. This was in October 2006. We are now a year and a half later and we
still do not have some of the facts and figures that back up how many of these 40 per cent of gun crime offenders
actually were out on bail from their previous gun crimes.
Ms. Kane: I understand that, but that is not the type of data being collected nationally by the Canadian Centre for
Senator Milne: We will be hearing from them, but what about the 14 public opinion research projects that the
department has done?
Ms. Kane: When I return to the office, I will check what is publicly available in relation to public opinion research
projects, but they would not likely indicate data. If it is public opinion research, it would be the views of the public
about what it is important to focus legislative reform on.
Senator Milne: This is a question that I should have asked the minister and I would have asked him had he been able
to stay longer. Are you telling me that the reverse onus clause in this bill is really based on political expediency rather
than on facts?
Ms. Kane: The reverse onus in the gun crime situation?
Senator Milne: Clause 37.
Ms. Kane: That provision is quite targeted. It will reverse the onus in a small number of situations where we are
dealing with serious firearms offences. My colleague Ms. Besner can explain to you how narrowly focused that
Julie Besner, Counsel, Criminal Law Policy Section, Department of Justice Canada: Some of the reverse onus
situations proposed in Bill C-2 mirror those that currently exist under the bail regime. For example, there is currently a
reverse onus for drug trafficking and drug smuggling. There is a proposal in Bill C-2 to provide such a reverse onus for
gun trafficking and gun smuggling. There is also a reverse onus provision proposed for select serious firearms offences
such as attempted murder and robbery with a firearm. There is also an expansion of the considerations the court
should consider around whether or not an offence is very serious and queuing the courts to consider the alleged use of a
firearm in the commission of the offence.
Senator Milne: Clayton Ruby said that reverse onuses do not generally make much of a difference because judges
tend to take into account the circumstances of the alleged offence and the accused. It sounds good, which makes for
good politics, but it does not make much difference. That leads me back to my premise that this is probably politically
based rather than based on data.
The Chair: That was a declaration of political perception, but if the officials do not wish to comment on it, we will
not try to press them.
Senator Baker: The witnesses have placed great reliance upon the drug recognition test, which they say is operative
in certain parts of Canada now without the importance of having it codified.
As recently as this morning, I checked to see if I could find a recent case in Canada in which the drug recognition
test was actually accepted by a court. The most recent one is R. v. Woods, the Court of Queen's Bench of Alberta, a
superior court, and of course they rejected the results as other courts have done. Why? The headnote in Carswell says
that the drug recognition test is not sufficiently reliable to meet an acceptable standard of relevancy; accuracy rates of
the tests fell below the acceptable paradigm of reliability on issues of critical importance in criminal proceedings.
After examining all of the literature, the Alberta Court of Queen's Bench four months ago concluded that DRE
accuracy rates between 44 per cent to 76 per cent fall far below the acceptable level in criminal proceedings. Do you
have anything to say about that?
Ms. Kane: We are very familiar with that case. We think it is anomalous.
Senator Baker: I will read you a Newfoundland case, but go ahead.
Mr. Yost: With respect to the Woods case, the Alberta prosecutors, with whom we have been in touch, have decided
not to appeal that decision. They believe that they have a severe problem because they cannot bring in new evidence on
the appeal, which would be the most recent studies and the up-to-date analyses of the accuracy of the drug recognition
expert. It was not available. The prosecutor unfortunately was not aware of them. Certainly, we were not contacted.
The RCMP was not contacted with respect to providing the evidence.
The Canadian Centre for Substance Abuse, which is evaluating the accuracy and checking how accurate Canadians
are in this regard, has come up with a figure of over 96 per cent accuracy, and they were not involved in that case. We
do believe it is an anomalous case. We believe there will be ample support from the scientific community for the
accuracy of this program.
We are aware that the National Highway Traffic Safety Administration in the United States has repeatedly done
tests of accuracy as the program has gone from one state to another, and normally they get well over 90 per cent
accuracy rates. We believe we can do at least as well in Canada.
That one case, the Woods case, was rejected as new science. We find that a little strange since this science has been in
place in the United States for over 20 years and other countries for over 10 years.
Senator Baker: As you know, if the evidence was not available at time of trial, it can be reintroduced on appeal. If it
was not available at the time, you could put forward an argument that you could admit new evidence on appeal to the
Court of Appeal.
Mr. Yost: I can only tell you that our contacts in Alberta who are aware of this decision do not believe that they
would be able to do that. The evidence, in a sense, was available because it is public, but this prosecutor and the expert
called by that prosecutor were not aware of the latest research.
Senator Baker: Ms. Kane, in answer to a question by one of the senators, said that the evaluator, through
questioning of the person, may be able to determine what drug was used or which drug was responsible for the level of
drug impairment. Did you say that?
Ms. Kane: I do not think I said that, not through questioning. There is the drug evaluation program. The roadside
sobriety tests lead the officer to demand that the person accompany them to the station for the 12 steps, or whatever, of
the drug evaluation. After that evaluation, which is a number of different tests, in many cases the officer is able to
conclude on the basis of that the family of drugs that the person has consumed. It is not a discussion; it is a variety of
Senator Baker: This program is new to Canada, but it is not new to the United States. They do not have the Charter
there. They do not have subsection 10(b), and 10(b) surely must have been of consideration. As senators know,
subsection 10(b) says that at the time of detention, an individual has the right to counsel — at the moment of detention.
The Supreme Court of Canada has judged that under section 1 of the Charter the test involving the roadside
instrument device that an individual blows into to record a fail or pass must be administered in a relatively short period
of time. What you are proposing here is a rather elaborate procedure at roadside which, if you read the judgments of
the Supreme Court of Canada, would never pass the requirement outlined in subsection 10(b) of the Charter.
Therefore, I presume your conclusion is that you are hoping it will pass. Of course, it will be judged a detention, but
I would guess you are hoping that the violation of the Charter in administering roadside physical coordination tests for
prescription drugs such as arthritis medication will be saved by section 1 of the Charter. Is that the presumption?
Ms. Kane: There is nothing new about roadside field sobriety tests. They happen routinely now. This is not a new
procedure. Police do that now.
Senator Baker: This is not elaborate at all, so this will only take what, five minutes? How long do you think it will
Ms. Kane: We have to distinguish between the roadside field sobriety test and the next step, which is the Drug
Recognition Expert Program.
Senator Baker: Absolutely.
Ms. Kane: I believe that is what you were referring to in terms of the elaborate scheme. It is not what happens at the
roadside because that is quite expedient.
Senator Baker: At what time are you given rights to counsel?
Ms. Kane: I will let Mr. Yost again go through the process. There is no doubt in our mind that it is a constitutional
regime and that we are not attempting to violate anyone's rights to counsel or anything else.
Senator Baker: No, I am not interested in him going through the steps. I asked the minister for the physical
coordination tests that will be given and have I not received an answer yet. I do not think you will give them to the
Ms. Kane: Those will be prescribed by regulation and they can be provided to the committee.
Senator Baker: Surely you have trained people; you know what tests they will be doing now. You say they are
already in effect in some jurisdictions.
Ms. Kane: The police are doing it now. There is an elaborate training regime and they will indicate to the committee
exactly what those tests are.
Senator Baker: So you do not know what those tests are.
The Chair: Excuse me, Ms. Kane. Did you say that descriptions of the tests could be made available to the
Ms. Kane: I understand that is correct. I would like Mr. Yost to have an opportunity to answer.
The Chair: Will you provide that material, please?
Ms. Kane: I would like Mr. Yost to answer because he is most familiar with the regulation in progress.
Mr. Yost: We are in about draft four of the regulations. They have been circulated to the provinces and to police
forces for their comments. We have to have these regulations in place at the time the legislation comes into force so
when we say ``a standardized field sobriety test'' we will know what they are.
I am certain that we will provide you with them, it being understood that we are still drafting and are trying to get
them right, but the tests are known.
The Province of Manitoba has standard field sobriety test regulations under their Highway Traffic Act and has had
it for a couple of years now. Our tests will look much like theirs. They will be about the same tests because we are using
the tests that are prescribed, if that is the right word to use, by the International Association of Chiefs of Police.
They take a few minutes to do. There will obviously be wording in the regulation to the effect that ``to the extent a
person is capable of performing them,'' so if a person is arthritic and cannot walk in a straight line, that will be
understood. These situations have been dealt with in the United States and, for that matter, in Canada on a voluntary
We have tried to track the Supreme Court's decisions with respect to alcohol here. First, the police officer must have
some reasonable suspicion that there are drugs in this person's body. Before they can go to the DRE, they must have a
reasonable belief that the person is impaired by a drug, which has to be based on some evidence of the driving that the
person has done. Normally these situations arise because a person is driving badly. The police officer notices something
strange, such as very dilated eyes. There is no smell of alcohol or there is a smell of alcohol but the person passes the
ASD test, and then the police officer will be able to ask the person to do these tests. Yes, there is a walk-in-a-straight-
line test. There is no hopping test that I have ever heard of.
Senator Baker: What else is there, then?
Mr. Yost: I have those all back at my office, but I would not want to go off and get into each of them. I understand
that one test is holding one foot six inches off the ground and counting to 30 is another one.
Senator Baker: Holding one foot off the ground; I see.
Mr. Yost: I would say that I have managed to do these tests quite easily except after I, under scientific
circumstances, had some alcohol, whereupon I failed them rather badly. They work for alcohol just as well. They show
impairment — an inability to do what you should be expected to be able to do when you are driving.
In the end, the evidence will be some driving that is below the standard one would expect and the officer's
reasonable suspicion that there drugs are involved, which may be based on seeing drugs in the car, on physical
symptoms or on the person saying, ``Yeah, I have been smoking marijuana, so what? Big deal.'' Then there will be the
reasonable grounds. The DRE officer will then perform the necessary tests — physical observations — in order to
determine which class of drugs has caused this impairment. If everything falls into place and he culls cocaine and
cocaine is found in the person's body, we have now established a drug that could have caused this kind of impairment.
You need proof that there are drugs in that person's body. If you do not have the admission, it will be very difficult.
That is why you need to take the bodily fluid sample at the end.
The Chair: I want to be very sure that we will be able to get some material indicating the nature of these tests.
You said you were on draft four. We would understand if you were sending us draft material stamped ``draft'' on
every page. We would probably also be grateful to receive material regarding what is used in Manitoba. I do not know
about my colleagues, but I have never had to do one of these roadside tests. I would like to know what is involved. I
trust you will provide that material even though we will understand that a draft is a draft.
Senator Andreychuk: I do not want to be on the road with someone who is impaired. The risk of becoming a victim
or a fatality is what we are after. I will say it again: At one time we did not have Breathalyzers, but we started to say
that impairment and driving do not mix. We had roadside tests and it was very much the judgment of the policeman
and his training that would either be a winning case in court or not.
As much as I felt in those days that perhaps people were impaired on other things, but you had to have an ironclad
case before you could convict them in court. Then we got Breathalyzers. Now society is saying that drugs is an
increasing important issue, and we all know that. If we do not go down this route of roadside tests, is there an
alternative to get at people impaired by drugs? Are we missing another way of getting impaired people off the road?
I am not talking about those who say they take prescription drugs and are supposed to read all the labels and maybe
there are some unintended consequences. I am talking about those people who wilfully know what they are doing or
recklessly do it.
Is this the best that we can do? Have we come together and said this is the way to go, or is there something in
Sweden or Britain or in Canada that we should do other than this roadside test?
Ms. Kane: We believe this is the best approach to deal with drug-impaired driving at the current time. In 20 years
there may be something better. Certainly now our colleagues who do the prosecutions tell us that it is very difficult to
successfully prosecute drug-impaired driving because they are relying on evidence such as observable signs of
impairment knowing that they are not caused by alcohol.
Mr. Yost: In the committee in the other place there was a great deal of interest in whether there was a silver bullet,
something that would be the equivalent of the Breathalyzer for drugs. The witnesses from the Drugs and Driving
Committee of the Canadian Society of Forensic Science, who advise the Department of Justice, told the committee that
thus far there has not been anything. The Europeans have tried a number of systems for taking swabs of saliva, and
they have had real problems with false positives and false negatives. They are nowhere near the reliability that Senator
Baker was referring to, for example. That does not work.
Some countries — including many states in the U.S. — now have a zero tolerance for any illegal drug. If they catch
you driving and you are found with some cocaine or some marijuana, they deem you to be impaired. We do not believe
that is something that would be appropriate under the Charter. That is one of the real problems with drugs. There are
so many out there and different amounts affect people in different ways. The combination of drugs can have a big
difference. The advice we have received from the Drugs and Driving Committee is that this is the best tool available
Senator Baker: I am not concerned and I do not think any senator or MP is concerned about prosecuting someone
who has an illegal drug in their body. That is not the point. We have an aging population in Canada. People are taking
prescription drugs. In that case, if the officer suspects that the person has drugs in their body — and that is the law —
the first question the officer will ask when someone is driving slowly is, ``Sir, are you on medication or do you have any
drugs in your body?'' The fellow will have to say, ``Yes, of course I do.''
Under this law, then, the officer may ``suspect'' — not ``believe''; it is a very low threshold — that the person should
at least do the test. That is what the law says. What do you expect a police officer to do? You know he will say, ``Let's
do the physical coordination test.'' This law says that if you refuse or you cannot do it, without reasonable excuse —
that is what it says — then you are guilty of an offence.
The fellow says, ``I am taking medication for arthritis.'' What does the officer then do? He still has some suspicion.
The officer then goes through the procedure of giving the fellow his rights to counsel if the demand is given that he then
somehow supply a sample of his urine or some bodily fluid. However that has to be given in a setting.
It is like being charged with impaired driving; when you go to a washroom you are accompanied by a police officer.
If you phone your counsel, they have to see you through a window to make sure you are not ingesting something. Some
people cannot urinate in front of someone else. Again, you have not satisfied the requirements of the act.
We are concerned that this proposed law may capture someone who is perfectly innocent. As the old saying goes —
and Senator Joyal has said — it is better to let ten guilty people go free than to convict one innocent man. That is the
fear here, simply because these are extraordinary measures for someone who is taking prescription medication.
Do you think it would be unusual that a gentleman in that predicament would at the end of the day have the right to
say, ``I demand that I be able to give a sample of my blood to prove I am innocent''? Under the existing law you cannot
do it. The police officer determines whether or not someone shall be asked to give blood.
Perhaps in some cases that might correct an injustice.
Mr. Yost: The legislation calls for a bodily fluid sample. Obviously that covers blood as well as urine. I have my
doubts that the circumstances you are talking about happen very often.
However, the DRE Program has been run by the RCMP for a number of years. I would suggest that the committee
might want to hear from Corporal Evan Graham, the national director, as to how it works, the test done and what they
do in circumstances if someone is arthritic and cannot walk a straight line or says they just cannot pee. I cannot answer
I am confused, senator, because in your remarks you seem not to have made the point there that the person was
driving impaired, that their driving was bad. We need the evidence of impaired driving.
Senator Baker: Just a second, sir. You can be charged if you are just sitting in the driver's seat and not driving.
Under subsections 253(a) and (b) of the Criminal Code, if you are sitting in the place —
Mr. Yost: Care and control.
Senator Baker: Yes, care and control — exactly. You do not have to be driving. You are in care and control of the
Mr. Yost: Where is the impairment?
Senator Baker: That is another issue. If you want me to go down that road, that will take longer.
If someone is driving slowly at 20 kilometres an hour in a 50-kilometre zone and taking turns very slowly, that has
been shown in case law to be an indicia of impairment.
Mr. Yost: Absolutely, yes.
Senator Baker: If someone is driving slowly, they are old, perhaps. They are too careful. Should we be capturing
people driving very slowly?
The Chair: Senator Baker, your line of reasoning is clear. Can we have final a response? No final response?
Senator Carstairs: In relation to the age of consent, the minister has consistently said that these provisions are meant
to protect youth against sexual exploitation by adult predators, but that is in fact not what the bill does. The bill
increases the age of consent for non-exploitive sexual activity — not for exploitive activity because that was covered in
a bill we passed in 2005. What is included in these provisions?
Ms. Kane: My colleague Ms. Morency is our expert on child sexual offence provisions.
Carole Morency, Acting General Counsel, Criminal Law Policy Section, Department of Justice Canada: As you have
noted, the Criminal Code was amended a few years ago to broaden the category of what is considered to be exploitive
sexual activity. Within that category, young persons over the age of 14 and under 18, even if they in theory say they are
consenting, the law does not recognize their ability to consent. The law is saying they cannot be considered to have
given valid legal consent to the activity; therefore, it is a sexual assault.
Bill C-2 continues down that path. It is not changing the age of consent when you are dealing with prostitution,
which is 18. When you are dealing with child pornography, it remains at 18. It is not changing age of consent when you
are dealing with a relationship of trust, dependency, authority or is otherwise exploitive, as was amended in 2005.
For 14-year-olds and 15-year-olds who now could consent to engage in sexual activity with a partner, irrespective of
the age, Bill C-2 is saying, no, if the partner is five or more years older, that consent is not valid. It will be sexual
Under the Bill C-22 reforms from 2005, it is not clear or certain that that would necessarily be the result. Under
those amendments that you raised in your question, the court is directed to look at all of the circumstances after the
fact to determine the age of the young person, the age difference between the young person and the older person, the
nature of relationship, how did it develop or evolve, and any degree of control or influence.
The current Bill C-2 is saying that when you are dealing with a 14-year-old or a 15-year-old, it does not matter. If the
person is five or more years older, the law would say there is no capacity to consent. It is illegal: a sexual assault.
Senator Carstairs: I want to know what is encompassed in sexual activity. Obviously we can skip ``sexual
intercourse.'' What else is included? I went on the website and it seems to imply kissing.
Ms. Morency: The Criminal Code now addresses all sexual activity without identifying the nature of the activity. We
used to have criminal laws that talked about rape, and all of that was reformed in the 1980s, including for children in
We have general offences that apply to sexual assault for all victims and we have specific sexual offences.
Throughout the case law, the Criminal Code is clear that you are dealing with a range of sexual activity that violates
the sexual integrity of the victim; that is from the Supreme Court of Canada decision in R. v. Chase. You are correct; it
does cover a range of activity from sexual touching through to and including intercourse.
Senator Carstairs: Here is a hypothetical situation. In some provinces, high schools go from grade 8 to grade 12, so
you have kids as young as 13 and kids as old as 19. It is a graduation ceremony, and the 13-year-old and the 19-year-
old kiss to congratulate him on his graduation. Can he be charged?
Ms. Morency: The way Bill C-2 is drafted is to recognize that there will be relationships between peers. In the
majority of relationships, sexual activity is between peers and is within the five years that is being proposed by Bill C-2.
Yes, if there is a difference of five years or more, it is a sexual offence under Bill C-2.
However, the standards that will be applied will always be the same as they are for all offences. The police will
always consider whether there are reasonable grounds to believe that an offence was committed. Is there a reasonable
prospect of conviction? Is it in the public interest to prosecute that case?
There will still be the defences that exist today for an accused who believes that the young person was of age and
that he took reasonable steps. The due diligence defence that exists now for those under the age of 14 will still exist for
the new higher age of protection. Bill C-2 takes the protections that exist right now for those under the age of 14 and
makes them available for the accused in that other situation. Again, if the accused can say he took reasonable steps to
satisfy himself that she was of age to engage in sexual activity, there will be a defence.
The onus under Bill C-2 is very clear; it is on the offender. If there is five years or more difference, it is an offence.
Senator Carstairs: I taught senior high school for 20 years. I saw 14-year-olds who were wearing so much makeup
that they could very easily pass for 21 or 22 without any difficulty at all. Where is the protection for young men in these
A girl may decide to portray herself as much older. We all know this happens in bars all the time; kids say they are
19. They even steal ID to be 19, or 18 as it is in some provinces. We know this goes on. Where are the protections for a
person who is clearly non-exploitive and yet finds himself in this position? It could be reversed; it could be a boy that is
in this non-exploitive situation. Where are the protections?
Ms. Morency: Protections are in the defence I described to you, the due diligence defence that exists now — and will
be available under Bill C-2 if those reforms are passed — for accused involved with 14-year-olds or 15-year-olds. There
is a lot of case law that interprets the due diligence defence and provides a lot of guidance to law enforcement and
prosecutors dealing with this matter.
It is quite straightforward. One step an older person could take is to ask how old is the young person. The courts will
look at what else was available. How did the young person present? How were they made up? How were they dressed?
How did they act? What was their comportment or that of the group of friends they were hanging out with when the
older person came upon them?
Case law is very clear in describing quite a range of activities. It is not prescriptive that in every case it must be all of
those steps; but it is what is reasonable in the circumstances. The courts are very clear in dealing with that and they do
look to all of those factors.
The test is available now; the defence is available now. Bill C-2 will make it available at the higher age of consent as
Senator Carstairs: I find it extremely strange that we want to raise the age of consent for non-exploitive sexual
activity because — and I think this is the argument — you do not believe that the young person, be it male or female, is
truly giving consent. In order to protect them, they get this added protection. However, we say it is perfectly acceptable
to say that a young child of 12 knows exactly what they are doing when they commit a criminal act. If they know what
they are doing when they commit a criminal act, why do they not know what they are doing when they engage in a
Ms. Morency: Bill C-2 is proposing to build on what already exists in the Criminal Code. The Criminal Code already
has said that we do not accept a young person's purported consent to engage in certain types of activity — prostitution,
child pornography, a sexual relationship with a teacher. Canada, the government, Parliament have already decided we
do not accept that behaviour. Bill C-2 is exactly within that same realm.
The consequences of the exploitation are significant; they can be lifelong. Bill C-2 accepts that and builds within the
framework that is right there, right now, in the Criminal Code. It says there is more we can do as a society to protect
youth against those adults who actually go out and look for the 14-year-olds and 15-year-olds.
Senator Andreychuk: The Youth Justice Act and all of the acts before recognized that these were maturing persons,
not fully adult; otherwise we would not have had a separate youth justice system. I do not find it is a compelling
argument to say, ``Why can you be charged at 12?'' We do not charge them in criminal court; we charge them in a
separate court. One can argue that we should not have a system whereby we can raise an offence to adult court, if you
follow my line of thinking.
I want to look at the issue from the other side. We have the Convention on the Rights of the Child. We recognize
that children are on a continuum of maturing. We recognize the responsibilities of adults; we put the rights of children
in there. Why would you pick 16 and not 18? I know we are not bound yet. A particular committee that I serve on has
recommended that we be bound by the Convention on the Rights of the Child. Thus far we are only in conformity, but
we are not bound by it. Why would we not go to 18 instead of 16?
Ms. Morency: First, the Convention on the Rights of the Child defines ``child'' as being a person under the age of 18,
unless otherwise prescribed.
Senator Andreychuk: I appreciate the legality; I am talking about the philosophy. We want to protect people who are
still maturing and are exploited. That is what we are getting at here. They are exploited by someone deemed already to
be an adult and these young people are still maturing, so we are yielding to protect them. That is where the balance was
struck in the 2005 bill, if I understood why the government put that measure into the legislation at that time. Why do
we not go to 18?
Ms. Morency: To return to the minister's remarks during his appearance, the government's commitment all along
has been to raise the age to 16. If we look to other like-minded countries, you will see a range of what ``age of
protection'' is. It may vary depending on whether you are dealing with exploitive activities such as child pornography
or prostitution or with Bill C-2 in terms of the consensual aspect for those below, but to set the line above the five-year
mark as saying that is exploiting a young person.
Again, there is a range of ``age of consents'' around the world. Canada's will fall where the majority set it, which is at
16. The provisions in Bill C-2 recognize that there will be normal sexuality activity between peers, the majority of which
will fall within that five-year, close-in-age exception.
The reforms enacted in 2005 basically expanded the sexual exploitation category to include a relationship of trust,
dependency or authority, or that is otherwise exploitive when you look at the age difference. That will still be available
to protect 16-year-olds and 17-year-olds.
With respect to the level of maturity, there are differences, obviously, between 14-year-olds and 15-year-olds being
able to make choices. If you look at their development, they are at a different level in their capacity compared to 16-
year-olds or 17-year-olds. Protections will still be there under the 2005 amendments for the 16-year-olds and 17-year-
Senator Joyal: It has been referred to repeatedly that the changes brought in back in 2005 were to limit exploitive
relationships. Did you make any study or evaluation of those changes to come to the conclusion today that you need to
move forward in the context of what Bill C-2 proposes?
Ms. Morency: Unfortunately, in the time from 2005 to even today, it takes a while for the cases to work their way
through the charges and prosecutions to the reported case law stage. We do monitor cases. We are either contacted by
Crowns in the provinces or we see reports about the cases. However, I have only seen one reported case to date that
dealt with that reform. That case involved a 17-year-old who became an 18-year-old and who was engaged in a
relationship with a teacher double her age. He was convicted.
The bulk of the cases we see reported, compared to the other general sexual assault offences, deal more with the
classic teacher/14-year-old scenario. I think everyone around the committee table today acknowledges that this is
clearly an issue. Bill C-2 is saying that this will remain prohibited. However, as in the example from the minister, it is
the 40-year-olds and 50-year-olds coming from another jurisdiction — Texas, for example — to engage in a sexual
activity with a 14-year-old here because it is not legal where he comes from.
Senator Joyal: If a young person of 14 or 15 is attracted sexually by an older person, which can happen, and that
young person presents himself or herself as being older than 14 or 15 and enters into a sexual relationship, whatever the
sexual relationship is, as defined by the code, what are the legal consequences for that young person?
Ms. Morency: For the young person?
Senator Joyal: Yes.
Ms. Morency: If Bill C-2 were to be passed and the relationship is established only after the new age of protection
comes into force —
Senator Joyal: No, I mean between 14 and 16, as it is now. The young person is 15 and wants a sexual relationship
with a person of more than five years age difference. He or she is attracted for whatever reasons. Under Bill C-2, what
happens if it is proved that there was a sexual relationship between that young person and someone older than him or
her by five years or more?
Ms. Morency: The answer is very clear that the older person would be committing an offence against the young
person who would be the victim, the complainant in that case.
Senator Joyal: It would not be the young person who would complain. Someone else would be aware that there was
a sexual relationship between that young person and an older person. The young person is not complaining. The young
person wants to have that sexual relationship for whatever reason; he or she may be attracted to older persons. It
Ms. Morency: We have to consider who the witness is in the case. If the witness is a doctor and the young person is
their patient and information comes to his or her attention that the 14-year-old or 15-year-old is engaged in an illegal
sexual relationship with a 50-year old person, that child is, under Bill C-2's reforms, the victim of a sexual assault.
There are reporting obligations.
Provincially, under child welfare and child protection legislation, again depending on who the person is — for
example, a teacher or another person who might have a mandatory reporting obligation — there might be an
obligation to report that to the authorities.
There is not necessarily the same type of a mandatory reporting obligation on Canadians at large, but under every
provincial and territorial child protection legislation there is always the ability to report suspected child abuse.
However, Bill C-2 is taking the system that exists right now. If a young person under the age of 14 is a victim of a
sexual assault based on the way age of consent is defined now, the same obligations that exist now for those young
persons under the age of 14 would apply under Bill C-2 for 14-year-olds and 15-year-olds. There is no question that if
Bill C-2 reforms are passed, the law would be changed to draw a very clear line. If the person is more than five years
older than the young person, that older person, the accused, is committing a sexual offence against the young person. It
is an offence.
Senator Joyal: It creates an offence even though the young person has been the one to take the steps to enter into the
relationship with the older person. It happens sometimes that this is the way the relationship develops, for all kinds of
psychological reasons I do not need to explain here. What is the status of that young person in front of the youth
justice system? Could that young person be brought to a youth court and told that he or she is engaged in criminal
Ms. Morency: She is the victim or the complainant in a sexual assault trial.
Senator Joyal: She is presumed to be the victim. You establish that she is the victim, but if the person is the one who
wanted to create the circumstances in which there would be a sexual relationship, you are creating a legal fiction by
stating that at that age a person is not in a position to make any decision in relation to his or her sexual life.
Ms. Morency: Just to clarify one point, Bill C-2 will say that in a sexual relationship of the kind you just described,
the young person would not have the ability to choose to engage in the sexual activity then and there. Bill C-2, as
passed in the other place and in former Bill C-22 and as have you before you now, does provide an exception for
marriage on a permanent basis.
In those provinces or territories where it would be possible for a young person under the age of 16 to marry another
person, they could, if it is approved in those circumstances — the approval has to come from either a court in the
jurisdictions that allow it or, in three of them, from a minister. For permanent marriage, in the situation you are
describing, an exception exists in Bill C-2; otherwise, it is an offence.
Senator Joyal: Is it in the Yukon or the Northwest Territories where the age of consent to marriage is less than 16?
Ms. Morency: In the Northwest Territories and Nunavut it is 15. In three jurisdictions, a young person under the
age of 16 cannot marry: Yukon, Quebec, Newfoundland and Labrador. In the other jurisdictions, the minimum age
with parental consent and either with court approval or the minister's approval is 16, with the exception, as I said, of
the Northwest Territories and Nunavut, where it is 15.
In that situation, the court in the provinces and territories where marriage is permitted below that age must apply
certain criteria. In four of those jurisdictions, they would only be able to approve of the marriage because the young
girl is pregnant, which by the terms of Bill C-2 would be after the commission of a sexual offence. The court will
obviously look at a range of factors about what is in the interest of this young child. If she is a victim of sexual assault,
they will take that into consideration.
In the other jurisdictions where they look at whether they can approve of the marriage of a person under that age,
they have to look at what is in the interests of the child. If the Criminal Code says it is criminal conduct for a 60-year-
old and a 14-year-old to be married, is it in the best interests of a young person to approve of the marriage?
Senator Joyal: There is some illogic in this bill. In some territories you can get married at 15. It is presumed that you
can give full consent to marriage and sexual relationships. However, this bill establishes that between the ages of 14 and
16 you cannot consent to sexual relations with someone who is five years and two days older than you. There is
something illogical in this proposal. We know that such relationships exist consensually and within the framework of
Ms. Morency: Bill C-2 says that the young person you described cannot legally consent to engage in sexual activity.
She could seek to marry that partner, which would have to be vetted and approved, as I described. There is a different
process in place for that exception; a higher authority looks at it from the outside. That is different from the situation
where the 14-year-old meets a 60-year-old and decides to engage in a sexual relationship. There is no question that if
you change the age of consent, you change the line regarding when an offence is committed and when it is not.
The Chair: Senator Joyal, would you mind if I asked a supplementary from a slightly different perspective on the
matter of the age of consent and marriage?
Senator Joyal: Certainly.
The Chair: I believe that this bill originally contained a grandfather clause for people who were legally married at the
time that the bill would receive Royal Assent. That grandfather clause was removed during the study in the House of
Commons. It seems to me that to provide the permanent exemption that you refer to would be a massive
encouragement, given the new constraints being built into the law in this bill. At the extreme, one can imagine, for
example, a sex tourist going to one of the countries where we know that young people are exploited in this way. A 50-
year-old could cross the Pacific and come home with a 14-year-old bride. He could divorce her two years later and go
back and get another one.
I appreciate the difficulties of having a single, arbitrary national age when there are different provincial or territorial
ages for marriage, but why is the exemption built in to allow permanent marital exceptions in those places where
marriage of people of this age is not permitted, those being Quebec, Yukon, Newfoundland and Labrador? I do not
understand this. It seems to go against what I had taken to be the fundamental philosophy of this bill.
Ms. Morency: The government's position was not to support making the transitional marriage exception available
on a permanent basis. The government opposed it at committee.
We know that there are currently young people aged 14 or 15 involved in both married and common law
relationships. Bill C-2 anticipated that and proposed two transitional exceptions to deal with those relationships that
met the definition of common law when the new age of protection came into force. That remains unchanged.
The government proposed a transitional married exception in the first place, but a motion was moved and
supported by the opposition at committee. The government put on the table a number of concerns about making it a
The transcripts of the committee proceedings will show what influenced or seemed to be important to the opposition
members who supported that amendment. They seem to have been comforted by the fact that in those provinces and
territories where a person under that minimum age of consent could marry, the court or a minister of the Crown must
review the case before approving the marriage. There is a process, conducted by the courts in most cases, to determine
whether it is expedient and in the best interests of the young person to approve the marriage.
I understand the concern about someone flouting the marriage exception defence and starting to marry people. We
have not seen evidence of this. Case law indicates that adults who want to sexually exploit 14-year-olds or 15-year-olds
may travel from one country to another where they have lured someone online in order to have a sexual encounter with
them. However, I have not seen any cases where someone goes to the extreme of going abroad and marrying.
Under the existing Immigration and Refugee Protection Act, the age of consent for recognizing the marriage of a
young person to a foreign national is 16. The act does not recognize a marriage below that age as a valid one.
The government was faced with that opposition motion.
The Chair: I understand. This is a minority government. If they do not have the numbers, they do not have the
numbers. I was simply trying to understand the rationale, and you have helped me with that.
I will return to the dreaded question of drug-impaired driving and the sentencing provisions. I am referring to the
sentencing regime proposed for someone refusing to provide a breath, saliva, urine or blood sample while they know or
ought to know that their operation of a vehicle could cause an accident resulting in death or bodily harm.
I am not saying that it is okay to commit the offence of causing the accident and causing bodily harm or, heaven
forbid, death. I am in favour of throwing the book at impaired drivers. However, to be imprisoned for 10 years or even
life simply for refusing to provide a blood sample strikes me as very harsh and disproportionate to the nature of the
offence, given that the person will be punished anyway for having committed the fundamental offence of causing the
Mr. Yost: For some time the policy of the Criminal Code has been to treat identically in terms of punishment the
offences of impaired driving, refusal to blow and blowing over 80. However, the one exception has been where bodily
harm or death has been caused. It says that impaired driving is the only one there.
The situation now is that there is a strong incentive on a person who has been involved in an accident and has been
drinking not to provide a breath sample. They will face the refusal, but it is a simple refusal and the maximum will be 5
years. If they provide the breath sample, the breath alcohol certificate can be entered into evidence and a toxicologist
will be called to provide testimony that a person's ability is impaired beyond a certain level of blood alcohol. This
legislation creates an even playing field wherein the person involved in an accident who has been drinking gets no
benefit by refusing. The offence is refusing the test knowing they have been in an accident that may have caused bodily
harm or death, and that is based on the same guidelines we have for people fleeing the scene of an accident. They know
they have been in an accident and are trying to get away from the police.
There is more than one thing to be established. There is the refusal, but you also have to establish that the person
had some reason to know. We understand from the police that this is a situation that happens frequently. They arrive
at an accident and have suspicion of alcohol or have good reason to believe the person is impaired. They demand a
breath sample. The person refuses to provide it and they try them using the impaired causing bodily harm law, but they
will not have the alcohol certificate which would be important evidence that the person was in fact impaired.
The Chair: I am not suggesting that there ought not to be some penalty. If you are far enough into the system to be
at the point where you are supposed to take a Breathalyzer test or give the blood sample, it is serious, but is life
Mr. Yost: Life is the sentence that is given now for impaired driving causing death.
The Chair: I am not saying you stop imposing a life sentence for impaired driving causing death. It is in regard to the
refusal of the test. Should it warrant a life sentence?
Mr. Yost: This is a refusal; a person knows they have been involved in an accident that may have caused bodily
harm or death. It is a pretty serious accident where you could have caused a death.
Senator Joyal: Is there a life sentence for having caused bodily harm?
Mr. Yost: No, the sentence for bodily harm is 14 years. It is life for having caused a death.
The Chair: A life sentence is given for causing the death. Would one then get another life sentence for refusing the
Mr. Yost: If the judge can find you impaired, they will only impose the one life sentence. They will find you impaired
and that will be it. They will not impose two life sentences.
However, this would be useful in some circumstances where police arrive late and there are no witnesses as to what
happened. There are bodies to take care of, ambulances to call, et cetera. The driver is reeking of alcohol and the police
say they have reason to suspect the driver is under the influence of alcohol. They ask the person to provide a screening
and the person says no.
They may not get away with it. The judge may be able to find them guilty on impaired driving causing death, but the
incentive to refuse to blow will be taken away by this legislation.
Senator Baker: To refuse to blow —
The Chair: Is this a supplementary, Senator Baker?
Senator Baker: Yes.
The Chair: I do not know that Senator Joyal had finished.
Senator Baker: It is a clarification of what you are asking. Are you saying if someone refused to provide a breath
sample that they would be guilty?
Mr. Yost: Yes.
Senator Baker: You could outright refuse or you could try and not be able to.
Mr. Yost: Yes.
Senator Baker: Are you saying someone with asthma — does the section of the legislation say without reasonable
Mr. Yost: Allow me a few moments to find it.
Senator Baker: I would say that it would not be as simple as only refusing to provide a breath sample. For example,
you try to provide a sample and cannot, but the officer is saying you are not trying. If the person has breathing or other
lung problems, which often is the case, they may be judged to have refused to provide the sample. Under those
circumstances, I would find there would be some question. Normally, it is in the other sections of the Criminal Code.
Sections 253 to 258 say without reasonable excuse, which is a medical condition.
The Chair: While Mr. Yost is seeking the text, Senator Joyal, were you wishing to pursue a line of questioning with
Senator Joyal: I wanted to question Ms. Kane. I am not sure I understood the answer given to Senator Andreychuk.
I would like Ms. Kane to refer to section 718.2(e) of the Criminal Code which deals with sentencing principles with
regard to Aboriginal offenders.
When a judge has an Aboriginal offender found guilty of an offence for which there is a mandatory minimum
sentence, does the judge have a capacity to modulate that sentence, taking into account the fact that the person is
Aboriginal, or does the judge have the strict obligation to impose the mandatory minimum sentence?
Ms. Kane: Where a mandatory minimum penalty is imposed, the judge does not have the discretion to go below
that. The MMP is the bottom line, the floor. In looking at how much above the mandatory minimum he or she should
go, all factors with respect to the purposes and principles of sentencing, including the specific circumstances of
Aboriginal offenders, would be taken into account.
Senator Joyal: In other words, if we add additional mandatory minimum sentences with this bill, considering the
Aboriginal population and their rate of incarceration in Canada, can we expect there will be more Aboriginal people in
prisons in Canada?
Ms. Kane: The mandatory minimum penalties in this bill are primarily with respect to firearms offences. It is
targeted to restricted or prohibited weapons used for serious firearms offences or in connection with criminal
organization or gang activity. We are not targeting any particular group in Canada other than those engaged in that
kind of firearm activity. The new minimum penalties would apply for those particular serious firearms offences.
Senator Joyal: You have answered indirectly.
In January 2002, the Research and Statistics Division of the Department of Justice commissioned a study from two
criminologists from the University of Ottawa and Carleton University entitled ``Mandatory Minimum Penalties: Their
Effects on Crime, Sentencing Disparities and Justice System Expenditures.'' You probably know that study.
Ms. Kane: That is one I referred to earlier by Thomas Gabor and Nicole Crutcher.
Senator Joyal: Yes. That study concluded generally that they do not support the use of mandatory minimum
sentences for the purpose of deterrence. Do you have other studies that are clearer on their conclusion that mandatory
minimum sentences have a real deterrent effect?
Ms. Kane: I could only reiterate what I mentioned earlier. There are three studies available presently on our website
that do not have anything conclusive about the effect of mandatory minimums on recidivism, but they do indicate
there is some promise. There is some impact on crime rates for targeted offences for the firearms offences, for example,
which was in the Meredith, Steinke and Palmer research. The Gabor report also indicated that there were some benefits
to mandatory minimum penalties but nothing conclusive.
Senator Joyal: Is there anything conclusive at this stage that you can share with us in respect to a study that would
show that this is a prime element to deter crime?
Ms. Kane: As I mentioned before, a variety of strategies need to be used to deter crime and sentences that make
people more accountable, sentences that reflect the need to keep people accountable for the serious crimes they commit
are one of those strategies. However, crime prevention, enhanced enforcement and programs at all levels are obviously
effective strategies as well. The research is difficult to pinpoint what, if anything, has had the benefit. It is a
combination of factors. This bill focuses on the need to have serious sentences for the most serious crimes.
Senator Joyal: In other words, this bill does not address all the other aspects of a policy to fight crime that might be
more effective because they would involve other factors — which the studies have mentioned — that are effective as a
whole to reach the result that one would want, which is to reduce crime in society.
Ms. Kane: The other strategies do not require legislation, per se, but the government is engaged on a variety of
fronts. The minister referred to the National Anti-Drug Strategy, which has programming measures, education
measures and treatment measures. The National Crime Prevention Centre provides funding to community groups
across Canada to pursue a range of crime prevention programs that target the most at-risk communities and people.
Law enforcement is primarily a provincial responsibility, and there is a variety of law enforcement strategies and
enhanced law enforcement task forces to target particular crimes involving gangs, drugs and firearms. All these
strategies are being implemented across the country through the collaboration of everyone responsible for the justice
system and for dealing with crime.
Senator Joyal: Not in this bill, though.
Ms. Kane: As I mentioned, those strategies do not require legislation. This bill targets five particular areas, as the
minister noted and as others have noted. They may seem to be unconnected, but they all have common goals to address
crime and to better protect society. Other bills are also working their way through Parliament to look at other aspects
of crime, and the government's agenda is to make some inroads to address crime.
Senator Joyal: I believe they are interconnected. There is a focus on prisons over other approaches that in my
opinion would have a positive impact, but that is for debate. I am not asking you to concur.
The Chair: Mr. Yost, have you found enlightenment?
Mr. Yost: On page 16 of the bill, I direct your attention to the new subsections 255(2.2) and (3.2), each of which
begins, ``Everyone who commits an offence under subsection 254(5),'' which are the subsections that make it a refusal.
The same defences of being unable to provide it would apply there.
The Chair: Does that answer your question, Senator Baker?
Senator Baker: It certainly does, yes, because that says ``without reasonable excuse, failed or refused to comply.''
Therefore, one would have to prove to the judge that one had an excuse for being unable to or for refusing. That excuse
would have to be justified with medical evidence normally before the court, which would be a doctor — a specialist in
the area of asthma, for example — not just a general practitioner, which is sometimes not accepted by the court. I
understand Mr. Yost's point.
The Chair: Since I raised this question, I am grateful for the clarification.
We do want to thank you all very much indeed. Your testimony has been extremely helpful. As we keep saying, this
is a complex, complicated bill. It is possible that we may be inviting you back, but in the meantime we look forward to
receiving from you the material that we all agreed upon. I guess I will not surprise you if I tell you we would like to
have that information sooner rather than later.
Honourable senators, when committees consider legislation, it is often customary to adopt a motion at the outset of
the study stating that no votes will be held until the witnesses have been heard. This is a standard motion. Members of
the steering committee think it would be appropriate in this case because it liberates our focus to be on the actual
content of the bill instead of always keeping an eye open in the event that someone calls a snap vote.
If you are in agreement, honourable senators, I would ask for someone to move the following motion. After I read it
out, we can of course have a discussion if anyone wishes.
It would be moved by an honourable senator to be determined:
That, any votes on any motions dealing with the final disposition in committee of Bill C-2 be held no earlier
than the completion of hearing all scheduled witnesses.
Senator Milne: I so move.
The Chair: Is there any discussion? All in favour?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions?
Honourable senators, I thank you very much indeed. Our next meeting will be held at 10:45 tomorrow morning in
this room, and when we shall hear from the defence and criminal lawyers' associations. It should be an extremely