Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 14 - Evidence for February 27, 2012
OTTAWA, Monday, February 27, 2012
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other Acts, met this day at 8:34 a.m. to give clause-by-clause consideration to the bill.
Senator John D. Wallace (Chair) in the chair.
[English]
The Chair: I call this meeting to order and I would like to welcome all honourable senators, and members of the public who are viewing these proceedings on the CPAC television network and members of the public here in this room with us today. I am John Wallace, a senator from New Brunswick, and I am chair of this Standing Senate Committee on Legal and Constitutional Affairs.
Today we are meeting to resume our consideration, and I believe our final consideration as a committee, of Bill C- 10. Before we proceed, I would like to take this opportunity to invite all of the committee members who have given a lot of themselves over the last four weeks, and in particular last week, to the study and consideration of this bill.
Senator Fraser, our deputy chair, I will begin with you, if you could introduce yourself.
Senator Fraser: How do you do, everyone? My name is Joan Fraser; I am a senator from Quebec and, as the chair said, deputy chair of this committee.
Senator Cowan: Jim Cowan. I am a senator from Nova Scotia and Leader of the Opposition in the Senate.
Senator Baker: George Baker, Newfoundland and Labrador.
Senator Chaput: Maria Chaput, Manitoba.
Senator Jaffer: Mobina Jaffer, British Columbia.
Senator Lang: Dan Lang, Yukon.
Senator Angus: David Angus from Quebec.
[Translation]
Senator Dagenais: Jean-Guy Dagenais from Quebec.
Senator Boisvenu: Pierre-Hugues Boisvenu from Quebec.
[English]
Senator Runciman: Bob Runciman, Ontario, Thousand Islands, Rideau Lakes.
Senator Frum: Linda Frum, Ontario.
The Chair: As each of you are well aware, Bill C-10 is a very comprehensive bill and it brings together into one comprehensive package elements of nine previous bills that were before Parliament and nine bills that were not passed in Parliament. Some of those previous bills have been amended in the form that they are now part of Bill C-10.
There are a number of issues that are covered within Bill C-10. Those include issues dealing with victims of terrorism, sexual offences against children, the Controlled Drugs and Substances Act, conditional sentencing or what is known as house arrest, parole, the granting of pardons, the international transfer of offenders back to Canada, youth criminal justice and immigration, and the protection of vulnerable foreign workers. There are obviously a number of issues and we are all well aware of those included within Bill C-10.
During the past four weeks, we heard from approximately 110 witnesses. We have held 11 meetings to date and have sat for approximately 50 hours of public hearings. We are now at the stage where the committee will continue to go through the bill clause by clause.
As you may remember, we began this clause-by-clause process at our last meeting with agreement that consideration of any clause could, upon request, be deferred until today for further consideration. With that in mind, we are here today to resume consideration of those deferred clauses and we will begin that process shortly.
Before we do this, I would like to remind senators of a number of points. If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure that at all times we all have the same understanding of where we are in the process.
In terms of the mechanics of the process, I wish to remind senators that when more than one amendment is proposed to be moved in a clause, "Amendments should be proposed in the order of the lines of a clause," as noted in Beauchesne at citation 697(2).
Therefore, before we take up an amendment in a clause, I will be verifying whether any senators had intended to move an amendment earlier in that clause. If senators do intend to move an earlier amendment, they will be given the opportunity to do so.
One small point: If a senator is opposed to an entire clause, I would remind you that in committee the proper process is not to move a motion to delete the entire clause but, rather, to vote against the clause as standing as part of the bill. I refer to Beauchesne citation 698(6), which notes:
An amendment to delete a clause is not in order, as the proper course is to vote against the clause standing part of the bill.
I would also remind senators that some amendments that are moved may have consequential effect on other parts of the bill. It is very important that the committee remain consistent in its decisions and that they be consistently applied throughout the bill. I refer senators, again, to Beauchesne citation 698(2), which notes the following:
An amendment must be not be inconsistent with, or contradictory to, the bill as so far agreed to by the committee, nor must it be inconsistent with a decision which the committee has given upon a former amendment.
In the spirit of this statement, it would be useful to this process if a senator moving an amendment identified to the committee other clauses in this bill where this amendment could have an effect. Otherwise, it would be very difficult for members of the committee to remain consistent in their decision making.
Staff will endeavour to keep track of these places where subsequent amendments need to be moved and will draw our attention to them. Because no notice is required to move amendments, there can, of course, have been no preliminary analysis of the amendments to establish which once may be of consequence to others and which may be contradictory.
If committee members ever have any questions about the process or about the propriety of anything occurring, they can certainly raise a point of order. As chair I will listen to argument, decide when there has been sufficient discussion of a matter or order and make a ruling.
The committee is the ultimate master of its business within the bounds established by the Senate and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.
As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend upon your cooperation and I ask all of you to consider other senators and to keep remarks to the point and as brief as possible.
Finally, I wish to remind honourable senators that if there is ever any uncertainty as to the results of a voice vote or a show of hands, the most effective route is to request a roll call vote which, obviously, provides unambiguous results. Senators are aware that any tied vote negates the motion in question.
Are there any questions on any of the above? If not, we can now proceed.
As I mentioned at the outset, and I know each of you is well aware, we began the clause-by-clause process on Friday. Certain clauses in the bill were carried and deferrals were granted in respect of others. The clauses that I will now lead you through and refer to are only those that were not carried on Friday; in other words, those that were deferred on Friday.
Colleagues, shall clause 2 carry?
Senator Runciman: I have a number of amendments related to the proposed justice for victims of terrorism act. I will move them shortly, but I wanted to indicate to members my intention to give a brief outline with respect to the justification behind the amendment. If there are any questions, Ms. Galadza, Senior Director, National Security Policy, is present and will respond to any questions the members may have with respect to the proposed amendments.
The Chair: That would be fine. Do you have copies of your proposed amendment?
Senator Runciman: I thought they were circulated.
The Chair: Everyone has them?
Senator Angus: Yes. They were circulated in both English and in French, as appropriate, last Friday.
The Chair: Yes.
Senator Cowan: Senator Runciman, are these essentially the same amendments that the government tried to introduce at third reading in the House of Commons?
Senator Runciman: That is my understanding. There was all-party agreement, but they were not able to be dealt with for procedural reasons.
Senator Cowan: Yes, because, according to rules there, they needed or should have been dealt with at committee or something?
Senator Runciman: That is right.
Senator Baker: Essentially.
Senator Fraser: Where they were proposed.
Senator Baker: There is quite a difference between "essentially" and —
Senator Runciman: You will have lots of opportunity.
Senator Cowan: No, exactly. I am not making any point here, I just wanted that clarified.
Senator Runciman: You wanted to put that on the record, yes.
The Chair: That exchange reminds of something that I will remind each of you. As we go through, I am sure there will be issues that you will want to respond to. I would ask you, as Senator Cowan did in now speaking to Senator Runciman, that if you wish to make any comment, would you direct it through me, please, and not back and forth through the table? It would be appreciated.
Senator Runciman: Mr. Chair, I move:
That Bill C-10 be amended in clause 2, on page 3,
(a) By replacing line 26 with the following:
"(a) any listed entity, or foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or other person that"; and
(b) by replacing line 29 with the following:
"(b) a foreign state whose immunity is lifted under section 6.1 of the State Immunity Act, or listed entity or other.
Mr. Chair, this is one of six amendments that would allow victims of terrorism to sue listed foreign states for not only supporting terrorism, which was the original legislation for not only supporting terrorism but also for directly committing an act of terrorism, essentially expanding the cause of action.
The Chair: Colleagues, are there any questions or comments regarding that?
Senator Baker: I would like to congratulate the mover of the amendment. It is an excellent amendment and I certainly will vote for it.
The Chair: Is it your pleasure, honourable senators, to adopt motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 2, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 3 carry?
Senator Runciman: Would you like me to move this now?
The Chair: Yes.
Senator Runciman: It is moved:
That Bill C-10 be amended, on page 5, by adding before line 10 the following new clause:
"3.1 section 2 of the act is amended by adding the following in alphabetical order:
"terrorist activity" in respect of a foreign state has the same meaning as in subsection 83.01(1) of the Criminal Code, provided that a foreign state set out on the list referred to in subsection 6.1(2) does the act or omission on or after January 1, 1985.".
This particular amendment defines in the State Immunity Act what is considered to be "terrorist activity by a listed foreign state." The amendment is necessary because the state community of listed foreign states would be lifted for their terrorist activity.
The Chair: You have heard Senator Runciman's motion. Are there any questions or comments?
Senator Baker: Again, I would like to congratulate the mover of this motion. It is a great amendment and I will support it.
The Chair: Thank you, senator.
Senator Runciman: I am getting worried, chair.
The Chair: Take it while it is still coming.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the motion carried.
Shall clause 3, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 5 carry?
Senator Runciman: Mr. Chair, I move:
That Bill C-10 be amended in clause 5, on page 7, by adding after line 8 the following:
"(11) Where a court of competent jurisdiction has determined that a foreign state, set out on the list in subsection (2), has supported terrorism, that foreign state is also not immune from the jurisdiction of a court in proceedings against it that relate to terrorist activity by the state.".
This amendment specifies in the State Immunity Act the listed foreign state's immunity is lifted not only for providing support to terrorism but also for committing terrorist activities, and this would allow a Canadian court to hear an action against a listed foreign state for these reasons, support and terrorist activity.
The Chair: Thank you, Senator Runciman.
Colleagues, you have heard Senator Runciman's motion. Are there any questions or comments?
Senator Baker: Again, I would like to congratulate the mover. It allows a court of competent jurisdiction in Canada to hear and decide on this matter. It is an excellent amendment, and it is one that should have been made in the House of Commons. I congratulate the senator for making it here, and I certainly am going to support it.
The Chair: Thank you, senator.
If there are no other questions or comments, is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried. I declare the amendment carried.
Shall clause 5, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, the clerk has just pointed out — and you may have been aware of this — that clause 3, which we have previously dealt with, involved the adding of a new clause as opposed to amending an existing one. I suspect you are well aware of that.
Colleagues, shall clause 6 carry?
Senator Runciman: Mr. Chair, I move:
That Bill C-10 be amended in clause 6, on page 7, by replacing line 15 with the following:
"that foreign state for its support of terrorism or it terrorist activity.".
This amendment would modify subsection 11(3) of the State Immunity Act to add that a listed foreign state does not benefit from immunity in respect of an action brought against it for its terrorist activity.
This means that a successful plaintiff could ask the court for an injunction, specific performance, or to recover land or property against a listed foreign state where a successful judgment was rendered against it for its support of terrorism or for its terrorist activities. Originally, Bill C-10 only allowed this for the listed foreign state's support of terrorism.
The Chair: Thank you, Senator Runciman.
Colleagues, are there any questions or comments regarding the proposed amendment?
Senator Baker: Again, it is an amendment that should have taken place in the House of Commons. It was rejected in the House of Commons. I am very pleased to see that the Senate is taking this initiative, and Senator Runciman. All members of this committee, I am sure, will support this amendment.
The Chair: Thank you, senator.
Is it your pleasure, then, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the amendment carried.
Shall clause 6, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 7 carry?
Senator Runciman: Mr. Chair, I move:
That Bill C-10 be amended in clause 7, on page 7:
(a) by replacing line 22 with the following:
"used by it to support terrorism or engage in terrorist activity;"; and
(b) by replacing line 31 with the following:
"support of terrorism or its terrorist activity and to property other".
Part (a) of this amendment would modify subsection 12(1)(b) of the State Immunity Act to allow the seizure of property under Canadian jurisdiction of a foreign listed state that is used or intended to be used for its terrorist activities. Originally, the bill only allowed for the seizure of property that was used or intended to be used by that listed foreign state for its support of terrorism.
Part (b) of this amendment would modify subsection 12(1)(d) of the State Immunity Act by adding a new circumstance where the property of a listed foreign state could be seized, namely, when the remedy is executed to satisfy a judgment issued against a listed foreign state for its terrorist activities. However, this subsection specifies that property having cultural or historical value could not be seized. Originally, Bill C-10 only allowed for such seizure where a judgment was issued against a listed foreign state for its support of terrorism.
The Chair: Thank you, Senator Runciman.
Colleagues, are there any questions or comments regarding the proposed amendment?
Senator Baker: Mr. Chair, I totally agree with this amendment. It expands the jurisdiction of seizure in these matters. As I say, this amendment should have been done in the House of Commons, but it is great that we have the Senate here in order to effect these needed amendments. I support Senator Runciman, and I am sure all members of the Senate will do the same.
The Chair: Colleagues, are there any further questions or comments?
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: Carried. I declare the amendment carried.
Shall clause 7, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
The Chair: Shall clause 9 carry?
Senator Runciman: I move:
That Bill C-10 be amended in clause 9, on page 8, by replacing line 32 with the following:
"that foreign state for its support of terrorism or its terrorist activity.".
This amendment would modify subsection 13(2) of the State Immunity Act to specify that the court could impose penalties or fines against a listed foreign state for failing or refusing to produce any document or other information in the course of proceedings before the court for its terrorist activity. Originally, the bill only allowed this for a listed foreign state's support of terrorism.
The Chair: Thank you once again, Senator Runciman.
Colleagues, are there any questions or comments?
Senator Baker: Mr. Chair, I strongly support again this necessary amendment to this act.
The Chair: Thank you, senator.
Are there any further questions or comments?
Senator Runciman: I want to thank Senator Baker for his strong support.
Senator Baker: Mr. Chair, this just highlights the absolute necessity of having the Senate to either correct a wrong that has been done by the House of Commons or to fill in the necessary amendments that were not made. I think this is an excellent example. I congratulate the members from the government side, especially the former Solicitor General for Ontario, for proposing these amendments. Let us hope that the House of Commons accepts them when the bill is sent back.
The Chair: Thank you, Senator Baker.
Are there any further comments or questions? Is it your pleasure, then, honourable senators, to adopt the motion in amendment?
Hon. Senators: Agreed.
The Chair: I declare the amendment carried.
Shall clause 9, as amended, carry?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, shall clause 21 carry?
Some Hon. Senators: Agreed.
The Chair: Carried.
Senator Fraser: Clause 21 is on page 12.
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 23 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 34 carry?
Senator Fraser: I call for a recorded vote on clause 34, our side being opposed.
The Chair: Yes.
Senator Angus: Without an amendment?
Senator Fraser: We do not like it at all.
Shaila Anwar, Clerk of the Committee: The Honourable Senator Wallace.
Senator Wallace: Yes.
Ms. Anwar: The Honourable Senator Angus.
Senator Angus: Yes.
Ms. Anwar: The Honourable Senator Baker.
Senator Baker: No.
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: Yes.
Ms. Anwar: The Honourable Senator Chaput.
Senator Chaput: No.
Ms. Anwar: The Honourable Senator Cowan.
Senator Cowan: No.
Ms. Anwar: The Honourable Senator Dagenais.
Senator Dagenais: Yes.
Ms. Anwar: The Honourable Senator Fraser.
Senator Fraser: No.
Ms. Anwar: The Honourable Senator Frum.
Senator Frum: Yes.
Ms. Anwar: The Honourable Senator Jaffer.
Senator Jaffer: No.
Ms. Anwar: The Honourable Senator Lang.
Senator Lang: Agreed.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: Yes.
Ms. Anwar: Yeas, 7; nays, 5.
The Chair: I declare clause 34 carried.
Colleagues, I next refer you to clause 39. Shall clause 39 carry?
Senator Baker: No. I would like to propose an amendment to clause 39.
Mr. Chair, there are some amendments to clause 39, so perhaps you would allow us to distribute them.
The Chair: We will take a moment to have them circulated.
Senator Baker: Did you want me to explain my amendment while they are being circulated?
The Chair: Let us wait until we have them in front of us.
Do all committee members have copies of Senator Baker's amendments, which he will now lead us through? Is there anyone who does not?
Senator Baker.
Senator Baker: Mr. Chair, I will do the first of the amendments, and then I would ask Senator Fraser to continue explaining some of the others, the remainder of the amendments to the section.
Senator Angus: On a point of order, just so we all understand, you said there would be several amendments to clause 39, but there is only one amendment to clause 39 in the package I have.
Senator Fraser: There is only one to clause 39.
Senator Baker: I am sorry, Senator Angus is absolutely correct, as usual. There is only one amendment to clause 39, but we did distribute the amendments that follow.
The Chair: At this point we are considering amendments only to clause 39, so if you could refer us to that, Senator Baker.
Senator Baker: Mr. Chair, this amendment says:
That Bill C-10 be amended in clause 39, on page 22, by replacing lines 30 to 33 with the following:
"designated substance offence within the previous 10 years and served a term of imprisonment of one year or more for that offence, or".
Mr. Chair and colleagues, this is to get over the problem that is inherent in this bill of someone being convicted and put in jail on a mandatory minimum sentence for a relatively minor offence. I suppose you could call it the Tylenol trap or the Atasol trap. As the present section reads:
. . . subject to paragraph (a.1), if the subject matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life . . . .
That is that if someone is convicted of trafficking in an offence. The definition of trafficking is to give someone or to sell someone, say, codeine, which is in a Tylenol pill. If it is prescribed to you, then you should not be giving it to anybody else, that is the law, and neither should you.
As I have read in the Senate, on occasion there are prosecutions made where someone has given another person Tylenol pills because the other person had a headache or a toothache. It is in case law. It happens from time to time.
The mandatory minimum sentence kicks in if the person was convicted of a designated substance offence or had served a term of imprisonment for a designated substance offence within the previous 10 years: in other words, if a person were convicted of a designated substance offence in the previous 10 years.
A designated substance offence is any offence other than section 4(1) of the CDSA: that is simple possession. If someone gave to someone else a marijuana cigarette and was convicted of that offence and perhaps received a fine of $50, perhaps that the person was discharged but they were convicted of the offence. If that happened and then within that 10-year period the person had passed codeine in a Tylenol pill, they would be subjected to the mandatory minimum sentence of one year.
There was some discussion here yesterday concerning whether you could have two marijuana cigarettes making out the offence. As learned counsel Paul Saint-Denis pointed out, it would have to be a large joint because that section is conditional on (a.1), which says the subject matter of the offence is a substance included in Schedule II in the amount that is not more than the amount set out for the substance in Schedule VII. As he pointed out, Schedule VII says you would have to have three kilograms of marijuana to effect that section, so that would be, as he pointed out, a pretty big marijuana cigarette.
However, it kicks in, because if the marijuana cigarette were the first offence made within the previous 10 years and then following on that comes the codeine in the Tylenol pill, then the person is subjected to the mandatory minimum of one year. If the offence is committed, it says here, in a university in which people frequent who are under the age of 18, a school, it would then be two years mandatory minimum sentence.
This is a very serious matter to me, and so my amendment would say, look, the mandatory minimum sentence would only apply if the person were convicted of a designated substance offence, that is anything outside of 4(1) in the CDSA, within the previous 10 years and had served a term of imprisonment of one year or more. The intent of the legislation, according to the minister and according to the Conservative members on this committee, is to catch the big- time drug dealers, the big-time traffickers. We hear this over and over and over again. Well, if it is, then let us reflect that in the legislation by saying that the designated substance offence within the previous 10 years caused someone to serve a term of imprisonment of one year or more for that offence. Now you have raised the possibility of getting to the actual drug traffickers and not capturing innocent people — well, not innocent people. You are giving someone a codeine tablet that was given to you by a dentist because someone has a toothache. It will take out any possibility of someone getting convicted for a relatively minor offence and having to be sent to jail for a year or perhaps two years and then having the consequence of a Charter argument and having the entire section struck down.
Mr. Chair, that is a possibility. You want to declare this entire exercise a waste of time? If this section goes through as is, perhaps it will not happen for a couple of years, the occasion I am sure will arise. I have read out to the committee case after case after case where drug squads go into places where young people are, they are dressed as young people, and it is a project. They call it by different names and they go and actually find out if people have any drugs on them, and they encourage the exchange and then they are arrested for trafficking because a simple joint has been given to them or one pill of this, that or the other.
The drug squad is doing its job. They are following the law. We are passing the law. In my opinion, and I am sure if we had members of the drug squad before this committee they would agree, it places them in an unfortunate position. As one police officer said to this committee, he said, "I would not charge someone if they only had one marijuana cigarette." In fact, he went further. He said, "I cannot understand a Crown prosecutor who would even prosecute the case." Well, I am sorry; I read out the cases, case after case after case. For that police officer to sit here and say that, that is fine, I agree with him, but it is happening and it is not the fault of the drug squad. The consequences are the fault of the legislators, and that is the substance of the amendment that I am proposing. Thank you.
The Chair: Thank you, Senator Baker.
Are there any questions or comments?
Senator Lang: Mr. Chair, I understand my learned colleague's point of view, and when we first began the deliberations of the bill I was very sympathetic to what he was bringing forward as far as supporting his argument, but I would make a couple of points.
First, I think he simplifies his argument and it is much more complicated than perhaps how he has brought it forward. Why I say that is that when he calls it the Tylenol trap, I do not know if he has had the opportunity to look at the news from this past week. Another young person in British Columbia has died from one pill. I would assume it is an ecstasy pill with other chemicals in it. That brings to a total, I believe, six deaths on the West Coast over the course of the last number of months. It is a very serious situation that we face in Canada with the prevalence of drugs, especially in the area of chemical drugs, and it is one that I think we all have to take very seriously, and I have no doubt that my colleague does as well.
The one area he does fail to point out is that there is a safety valve in the legislation for the courts, and that is the drug courts if that decision is taken by the courts in view of the circumstances of a case that is brought before the courts. So I see from where I sit a lot of comfort for that individual that the senator refers to in respect of getting caught between a very serious situation versus one that one might not think is that serious and should not have the mandatory sentence.
However, I believe very strongly that if we are going to deal with the situation that is facing our communities, both in the big cities and rural Canada, we have to have some guidelines in order for people to understand that there is a consequence to their actions. I would have probably gone with this amendment if the drug courts were not there as a safety valve, and I feel that the legislation has been brought forward bringing that situation to mind and being able to deal with some discretion within the courts.
I for one cannot support the amendment.
The Chair: If I could ask you, senator, when you refer to the drug courts being a safety valve, what do you mean by that?
Senator Lang: The way I understand it, it gives the opportunity for the judge to refer to a drug court as opposed to dealing with it through the normal process.
Senator Fraser: I have a small point of clarification. Under this bill as written, someone referred to a drug treatment court may have their sentence delayed; but as I read the bill, once he is finished the drug treatment program then he has the mandatory minimum staring him in the face.
Senator Cowan: To add to that point, as I understand it, Senator Lang, there are only six drug courts in the country, and they are in the major centres across the nation, so there are not drug courts available in every community where these kinds of offences would take place.
I want to reinforce Senator Baker's point about what we are trying to deal with here, and the repeated intention of the government is to deal with the most serious. We are after the big boys. We are not after gathering people who make mistakes as all of us did, particularly when we were young — maybe we still do — but we are after the big players and not the bit players.
The danger is the one that Senator Baker points out, that it is possible to say you would have these two relatively minor offences separated by a period of up to 10 years which could result in either a one-year mandatory minimum sentence, or if it happened in the vicinity of a school or any place where people under 18 were frequenting then it could result in a two-year mandatory minimum sentence.
That is the difficulty, and I think what Senator Baker has proposed is entirely reasonable, that if that first offence resulted in a prison term, which would indicate a more serious offence, then the mandatory minimums would still be there.
However, in the case of the example that Senator Baker used, relatively minor — I am not saying that people should do that, but they do. If you had two relatively minor offences separated by that period of time, I think it would be unreasonable and perhaps unconstitutional to require a mandatory minimum sentence.
I would support Senator Baker's amendment, which seems to me to be very reasonable, consistent and does not overturn or go against the government's stated intention of going after the big players and not the bit players.
The Chair: Colleagues, at least one other senator wishes to comment. The issue raised by Senator Fraser reminds me that if there are issues concerning the legal interpretation of clauses, we do have with us today, as I believe you are all aware, officials from Public Safety Canada, the Department of Justice Canada and Citizenship and Immigration Canada. In particular, we have Ms. Catherine Kane, who I know we are all well familiar with. We can call upon them if any committee member wishes to have their thoughts or views on comments that might be made.
It is a very important point you raise, Senator Fraser, and I would ask Paul Saint-Denis and Catherine Kane if they could come to the table. Now at the table with us is Catherine Kane from the Department of Justice. Ms. Kane is the Director General and Senior General Counsel, Criminal Law Policy Section. As well from the Department of Justice, we have Mr. Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section.
Maybe just before asking you to respond to the issue that was raised by Senator Lang and responded to by Senator Fraser, Senator Lang, did you have a comment you wish to make in that regard?
Senator Lang: I want to respond to Senator Cowan. I think it is important for the record.
Yes, there are drug courts in the major cities, but there are also programs in rural Canada that can be designated for that purpose as well. They are not in every community, I agree, but it is much broader than what has been stated as far as testimony so far from the point of view of that section. I inquired of the department officials on that topic, as it was of concern to me representing a regional area, and they made it clear that in conjunction with the provinces and the region or rural Canada, there are other programs that can be designated for that purpose.
I think it is important that governments, provincial and federal, work very closely to ensure that we provide these drug courts because the idea at the end of the day is to have these people get off drugs and become good citizens as opposed to the situation they find themselves in, having to go into the court system.
The Chair: Thank you, Senator Lang.
Ms. Kane and Mr. Saint-Denis, the issue, as I understand it, that was raised by Senator Lang concerns the effect of an offender convicted of a drug offence, a trafficking offence that would fall within clause 39 being referred to and accepting treatment, either within a drug treatment court or another designated and approved drug treatment program. If the offender was successful in treatment within either of those facilities, those programs, what would the impact of that be in terms of the mandatory minimum that would otherwise apply to that offender? I believe you heard the exchange. What is your comment on that?
Catherine Kane, Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: The legislation sets out in subsection (5) that if the offender successfully completes the program, the court is not required to impose a mandatory minimum penalty. It is providing for an exemption for those whose sentences are deferred, they attend a drug treatment program or another approved treatment program and they are brought back before the court. Part of the drug treatment court model and some other treatment court models is that the court often brings them back to see how they are doing, but once the program is completed successfully, the court does not have to impose the mandatory minimum penalty. At that point, they could impose another sentence, probation or whatever might be appropriate, or a suspended sentence, no sentence at all.
The Chair: Mr. Saint-Denis, do you have any further comment?
Paul Saint-Denis, Senior Counsel, Criminal Law Policy Section, Department of Justice Canada: No, that is correct.
Senator Fraser: That is not in this bill. Are you saying that is in the Controlled Drugs and Substances Act now?
Ms. Kane: It is in this bill.
Senator Fraser: Where is it in this bill?
Ms. Kane: Just before clause 44, you will see the remainder of the provision that is an amendment to subsections (4) and (5) of section 10 of the CDSA.
Senator Fraser: There it is. Thank you. I have read this bill too often and my brain is becoming frazzled.
The Chair: Senator Fraser, does that satisfy your question or comment?
Senator Fraser: Yes. I still think this amendment is worth pursuing, but on that point of law, yes, it does. Thank you.
If I may, now that I have the floor and I will not grab it again, I still believe that this amendment is worth pursuing because drug treatment programs are for people who are addicted. This amendment, as proposed by Senator Baker, would essentially apply to people who are rare, who are not addicted, who 10 years ago maybe did something and maybe have been completely clean ever since. Then one weekend they offer a joint to someone and they are captured, but they may not be addicts and it is, of course, addicts who need the drug treatment programs.
The Chair: If I might on that point ask Ms. Kane and Mr. Saint-Denis, is that true? Could an offender be referred to treatment, somewhat as a preventive step, to point out the evils of drugs, this type of thing? Or is does it depend upon addiction?
Mr. Saint-Denis: I would say it does depend on addiction. That is the whole purpose behind the drug treatment courts, particularly the drug treatment courts but also the treatment programs, which deal with people who have a drug problem. Many traffickers do not have drug problems; they are in it for money, so they would probably not be referred to the treatment programs.
Senator Baker: That is exactly the point that I was going to make.
Also, as Senator Cowan said, there are some six drug courts in Canada. As Ms. Kane and Mr. Saint-Denis pointed out, there is the other section of this bill that says that if you successfully complete a treatment program as defined under section 720 of the Criminal Code, it is not a matter of just finishing a treatment program; it must be upon the approval of the Crown prosecutor and it must be after consultation with any victims involved in any crimes. It is not a simple matter of the drug treatment court; drug treatment of and by itself is subject to section 720 of the Criminal Code and the conditions therein that the Crown must in fact approve this before a judge can even consider it. Am I correct in that interpretation?
Mr. Saint-Denis: The provision as originally drafted back in 2007, which has been since modified, indicated that it was on the consent of the Crown. That provision has now been changed, and the consent of the Crown is no longer legislatively indicated in this part.
Presently, though, access to drug treatment courts is on consent by the Crown. I am assuming, and perhaps Ms. Kane can help me on this, that for treatment programs, I believe Crown consent is also required.
Ms. Kane: For any treatment program, the person has to meet the eligibility criteria as well. It is not a given that just because a person has been convicted of one of these they will automatically be eligible for a drug treatment court program or another treatment program. Each program has its own eligibility, and the program itself establishes that eligibility. If someone is going to be completely opposed or — I do not know what the right term is, but if they are not going to benefit from it, the court may be more reluctant to refer them to the program.
I would clarify, when you referred to six drug treatment court programs, six are funded by the Department of Justice, but other drug treatment or courts that exist in Canada — one in Kitchener, one in Durham, one in London, one in Moose Jaw and one in Calgary — are funded by other means. It is a concept that is growing. In addition to the official drug treatment court programs, there are the other treatment programs that an individual Crown attorney or Attorney General or jurisdiction would be aware of that they may want to have offenders referred to.
Senator Baker: If I may, to be clear, this bill reads:
. . . to attend a treatment program under subsection 720(2) of the Criminal Code.
When you go to section 720 (2) of the Criminal Code, it reads:
The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence . . . .
My interpretation of "with the consent of the Attorney General" is with the consent of Crown counsel. Am I correct or am I incorrect?
Ms. Kane: That is correct. That is for the provision in section 720, the non-drug treatment court models, the other treatment programs; the Attorney General has to agree, which would be the Crown responsible for the prosecution.
However, as Mr. Saint-Denis pointed out, the amendment in the CDSA, the consent of the Crown was removed in a previous iteration of the bill.
Senator Baker: However, in this clause of the bill it says subject to subsection 720(2) of the Criminal Code, which requires the permission of Crown counsel, the consent of Crown counsel.
Ms. Kane: Maybe I am not being clear. That is correct, but that is for the programs that are not the drug treatment court model.
Senator Baker: Absolutely. I am not talking about drug treatment court. You brought up drug treatment separate from the courts and I am simply pointing out that you need the approval of Crown counsel and you need to go through a few more hoops before you qualify for that.
[Translation]
Senator Boisvenu: I would like to comment on the remarks made by certain senators who said that the goal was to catch the big-time dealers. From my own observations and further to my meetings with young people in schools, I see that the model is no longer the big-time traffickers selling drugs to young people. When we refer to the Tylenol image, I think that we are generalizing a major problem. The model today consists of selling drugs not to teenagers but to children. Drugs are now sold in elementary schools, in grades five and six. This is the new clientele. The adult uses young people often aged 16, 17, 18 or 19 to sell drugs to 8- or 9-year-olds. That is the model. Even if the bill targeted only the big-time dealers, that is no longer the problem. We are dealing with networks of traffickers, adults who use teenagers or young adults to sell drugs to children.
This bill is not only concerned with the big-time dealers. It is concerned with a problem that is one of the causes of dropping out of school, that is, drug use by the very young. We have to be careful not to trivialize this issue and open doors to people who will slip through the loopholes. The bill would not then achieve its original goal.
I would advise caution on this point so as not to create such openings. Criminals, especially drug dealers, are good at finding a little loophole in the Criminal Code and slipping through.
[English]
Senator Lang: To follow up on Senator Boisvenu's remarks, I really do think we have to be careful that we do not trivialize the situation we are facing here, as I said in my opening remarks. It is very serious what is going on out there in those schoolyards, in many cases with the young people, and unfortunately we are seeing the results of that.
I have two other points. It has to be emphasized that we have had evidence before us over the course of the last four weeks where it is clearly stated it is not the case of the enforcement agencies to be going after an individual who is not involved in trafficking and they do not have time to do that.
They are there to apprehend those individuals who are preying on their fellow brothers, sisters and friends, and to deal with them in a manner that has consequences to it.
I also say to my learned friend from Newfoundland and Labrador, you also have to prove trafficking. That is the other side of the coin. It is not just that simple that someone walks in and someone is arrested. You are arrested but you have to then present a case to the court that has some legitimacy.
Subsequently, it is not cut and dried, and I think we try to make it too simple.
I want to correct the record in respect to Mr. Saint-Denis, where the question was put about the drug courts and that section and how it applies. It is not there just for those who are addicted; it is there also and can be used for those who have been trafficking as well. That is clearly enunciated in the explanatory notices for that particular clause. That is once again at the discretion of the court, from the point of view of the case that has gone before the court, the seriousness of the case before the court and the fact that this is another diversion, if you like, for restorative justice to work with the court system with that discretion, recognizing the seriousness of the general offences taking place across the country.
We are not here dealing with these offences just because someone thought it was a good idea. There is a serious problem across this country, a really serious problem, and there is an inconsistency across the country, where drugs in one part of this country are treated lightly versus another part of this country. It is safe to say that we have a responsibility in Parliament to have at least a minimum consistent rule across this country of the consequences that one would face. We heard here in evidence where those who were being dealt with in the Province of Nova Scotia asked that their case be considered in British Columbia. It was not because of the weather, but because of how those situations are viewed in the judicial system in British Columbia.
Mr. Chair, I would say to my learned friend from Newfoundland and Labrador once again that I think that the safety valve he is looking for is there but there is a responsibility on behalf of that individual, the offender, to take that course and pass that course and understand what he or she is doing as far as society is concerned.
The Chair: Thank you, Senator Lang. You raised something as a point of clarification, and I would direct this to either Ms. Kane or Mr. Saint-Denis. Clause 39 concerns the trafficking of certain drugs as opposed to the production, importation or exportation, which is covered in other clauses. Clause 39 deals with trafficking.
Schedule II drugs that concern trafficking include cannabis or marijuana. Can either of you confirm whether there is a minimum amount of cannabis or marijuana that would have to be trafficked in order for the mandatory minimum to be applicable?
Mr. Saint-Denis: Yes, Mr. Chair. The minimum amount would have to be over three kilograms in order for the minimum penalty to be imposed. Trafficking in an amount of three kilograms or less would not be caught by the minimum penalty for trafficking.
The Chair: Thank you for that clarification.
Senator Jaffer: Are drug programs readily available and what are the waiting times?
Ms. Kane: I am not aware of the waiting times or the ready availability. As noted, there are the six that are funded with departmental funds. There are others that are emerging, and I would imagine that the waiting times vary and based on eligibility. If you would like additional information, we can endeavour to find what is available and provide it to you.
Senator Cowan: No one would pretend or suggest that the kinds of serious offences that Senator Boisvenu talked about would not be subject to a term of imprisonment, and those situations we clearly want to deal with. The kind of situation that Senator Baker has pointed out would be caught by this. I would also want to point out that trafficking is not just trafficking in the sense that we normally think of it, as an organized selling of a narcotic or controlled substance. It includes, and the cases are very clear, giving, offering to give, and simply saying, "Will you hold on to this for me a minute for me and look after it for me." That is trafficking. If I offer to give you a drug without any consideration, and I am not looking for money or not asking for money, and nothing is being traded or asked for in return, that is trafficking. Even if you say no, that is trafficking.
The Chair: We have a number of amendments to deal with. I understand your point, senator. If there are any new issues or new points that are not raised by one of the senators around the table, if we could restrict ourselves to that, it would help. If there are issues or concerns about what legally constitutes trafficking or other legal interpretations, I would suggest that we direct those to the officials. You may have some thought on their responses but, rather than voicing our own independent opinions about the legalities of certain provisions, they are able to do that for us.
We are down to our final comment on this matter from Senator Baker.
Senator Baker: In closing, I have read thousands of judgments concerning the Controlled Drugs and Substances Act, thousands, and thousands of sentencing hearings over the years. The problem that has been highlighted here, Mr. Chair, is the definition of trafficking. Trafficking is made out sometimes involving only traces of a substance. Our problem is with the definition. That is our main problem. We tried two years ago. We had eight schedules for drugs, and we listed them. The most serious were at the top, and they came down in their seriousness as seen. What does this bill do? It lumps everything that has been left. There are only three or four schedules left now. It lumps everything up into Schedule I, apart from marijuana, which is now Schedule II. This is the problem we are left with.
Mr. Saint-Denis said that in order to make out the minimum sentence, the amount of the drug, if it were cannabis or marijuana, would have to be three kilos. That is correct if it is the second offence that triggers the mandatory minimum, but the first offence can be a joint. In other words, we are dealing with two offences, one in the previous 10 years and the second one that triggers the mandatory minimum. The second one that triggers the mandatory minimum is the substance found under Schedule I. Your marijuana and cannabis is under Schedule II.
In conclusion, as far as sentencing is concerned, I have read thousands of sentencing judgments, and I can tell you, members of the committee, that, in my judgment, every single sentencing judge uses case law from right across this country and considers the case law from right across this country in giving a determination on sentence.
As far as making out the offence of trafficking, the actus reus is the mens rea, you might say, because if I give you a Tylenol 3 that has codeine in it and it has been prescribed to me, and I give it to you because you have a headache, I am trafficking in a Schedule I drug, which is codeine. That is the law. We cannot say we will leave it to police officers not to charge people. We cannot do that. We have to make the law, and they have to follow through the law. They cannot just say, "Well, it is a small amount, so therefore I am not going to charge you." Excuse me? The law is the law. You have to charge. In saying to a prosecutor, "You have a choice: You do not have to bring in somebody's previous record," what position are you putting prosecutors in here in Canada?
That is my concluding statement. I am sure that every single member around the table will support this important amendment.
The Chair: Thank you, Senator Baker. I believe that concludes debate on the amendment proposed by Senator Baker.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: On the basis of the responses I have heard, I declare the amendment defeated.
Senator Baker: On division.
The Chair: On division.
Shall clause 39 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 41 carry?
[Translation]
Senator Fraser: I move:
Que le projet de loi C-10 soit modifié à l'article 41, à la page 24, par substitution, à la ligne 37, de ce qui suit:
« supérieur à vingt, ».
[English]
In English, I move:
That Bill C-10 be amended in clause 41, on page 24, by replacing line 40 with the following:
"than 201 and more than 20, and the".
Would you like me to explain my reasoning here?
The Chair: If you would, senator, please.
Senator Fraser: I think a good deal of the preceding discussion in general terms applies to everything we are thinking about in connection with this section of the bill, so we will not have to repeat all that.
This amendment would raise the number of marijuana plants that one could grow without being liable to arrest and indeed mandatory minimum imprisonment from five, as it is now in the bill, to twenty. Twenty is not an arbitrarily chosen number. It is a number we have proposed before. You may recall, those who were here at the time, that the last time we proposed this amendment, Senator Baker noted for us that the marijuana medical access regulations of the government of Canada allow the issuing of licenses to persons for growth for personal medical use of up to 25 or 30 plants. This amount would not go that far. This amendment would stick at 20, but it would avoid capturing large-scale producers. We have heard from the police that they would be unlikely to arrest somebody who is only growing six plants. I think it is very strange to pass a law when the police tell you that they probably would not enforce it.
In our view, therefore, it would be appropriate to raise that minimum number of plants to 20, but I would draw to your attention that we would retain the lower permissible number of plants — permissible because you are not supposed to grow marijuana, but this bill would not kick in for less than 20 in general, but we would maintain the 5- plant limit when the aggravating factors were present.
Therefore, if somebody were growing five plants in dangerous or otherwise dubious circumstances, with potential security, health or safety hazards or which could affect people under 18 or creating a public safety hazard in a residential area or setting or placing traps, devices or other things that are likely to cause death or bodily harm — that one in particular would capture what we think of as the really bad guys, I would think — those folks would still, under our proposed amendment, be subject to the lower limit of permissible number of plants. However, for ordinary individuals we would propose raising that minimum to 20 plants.
The Chair: Thank you, Senator Fraser.
Are there any questions or comments?
Senator Lang: I have a couple of observations. If I am not mistaken, and I am going on history on this bill, this bill has been before Parliament for quite a number of years and discussed at length in the various houses. My understanding is, if I am not mistaken, there was an amendment a number of years ago that determined the five plants to be a cut-off point. At that stage it then becomes a serious matter in respect to just exactly what are the intentions of an individual.
It should be pointed out that, once again, we can trivialize this and speak in generalities, or we can start talking about details. Evidence has been given to this committee that five plants or more could be in the neighbourhood of $15,000 worth of street value. In some cases, I believe I heard numbers as high as $25,000 from the point of view of trafficking.
I understand where my colleague is coming from, but I would also submit that there has to be a cut-off point. The arguments that have been put forward and the reasons for it being five plants I think are justified. It does give some leniency and comfort to the college student who you speak of because I believe we are all concerned about that. I do not think anyone is here with the idea of committing somebody to jail just for the purpose of going to jail. The purpose behind this bill is to ensure those who are trafficking are dealt with accordingly. I think that the cut-off is a reasonable cut-off in view of the evidence that we have and the street value of this particular drug.
The other point is with respect to those who have a medical licence for the purpose of use. I understand there is a situation where someone may be utilizing marijuana on a constant basis. It is more of a pain medication than anything else. Then obviously the amount that they are using will be substantially more than anyone else, if it is a legitimate licence and is necessary for that individual to get through his or her day. I do not think you can compare this to that because I do not think it is a fair comparison. It is two separate uses and two separate situations that we are trying to deal with.
I would submit that I appreciate what you have brought forward but, between the discussion in the House of Commons in previous years and also in the Senate, I think we have come up with a reasonable compromise.
The Chair: Thank you Senator Lang.
Are there any other questions or comments?
It is your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Colleagues, I believe, from what I have heard, I would declare the amendment defeated.
Shall clause 41 carry?
Some Hon. Senators: On division.
Some Hon. Senators: Agreed.
The Chair: Carried, on division.
Shall clause 42 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 43 carry?
Senator Jaffer: Chair, I would like to speak on this.
I believe you have in front of you my amendment on clause 43. I am suggesting that in clause 43, on page 27, where it says "minimum punishment" and the number 5, I would ask that a number 6 be added. I move:
That Bill C-10 be amended in clause 43, on page 27, by adding after line 6 the following:
"(6) A court sentencing a person who is convicted of an offence under this Part for which a minimum punishment is prescribed by law is not required to impose the minimum punishment if the court is of the opinion that
(a) there are exceptional circumstances relating to the offence or the offender; and
(b) imposing the minimum punishment, having regard to all the circumstances, would be excessive or unreasonable.
Honourable senators, this is what we have heard many times from many people, the Canadian Bar Association and many others, including Justice Nunn. As we all know, a lot of credit for what is in Bill C-10 goes to Justice Nunn and we heard from Justice Nunn that he was not in favour of mandatory minimum sentences and I am not saying that mandatory minimum sentences should not be there. What I would like to bring to this committee's attention is that we leave some kind of discretion to the judge in exceptional circumstances when sentencing, even when there are mandatory minimums imposed by Bill C-10.
The effect of this amendment is not to tie the hands of the judge with mandatory minimum sentence provisions advanced by Bill C-10, and it is only in Bill C-10 — I am not talking about the criminal court but the effects of this on Bill C-10 — and allow the judge to consider factors that would make such a sentence excessive or unreasonable and to impose an alternative or lesser sentence.
Chair, you know that many witnesses, including the Canadian Bar Association and the Aboriginal Legal Services of Toronto, have wanted a general safety valve that would apply to all mandatory minimum sentences currently found in the Criminal Code. They pointed out many other countries that have safety valves, such as the U.K., Australia and the U.S.
Just to be clear, chair, the Canadian Bar Association was suggesting that we amend the Criminal Code, section 718 — the whole section on mandatory minimums.
I am not suggesting that. I am suggesting that we amend clause 43 just in this bill and give judge the discretion in exceptional circumstances to not impose mandatory minimum sentences.
That is my amendment.
The Chair: Thank you for that Senator Jaffer.
Senator Angus: On a point of order, just so we are clear, there are three amendments before us on clause 43. Are those all yours, Senator Jaffer, and which one of the three? They are labelled Liberal 3, Liberal 4 and Liberal 5.
Senator Jaffer: Senator Angus, thank you for asking for that clarification. Out of an abundance of caution, I am hoping that my colleagues will see my way and will agree on this general safety valve amendment. If for some reason we do not have a meeting of minds on this, then we will proceed with the other amendment.
Senator Angus: Is the one we are now discussing the first one, Liberal 3?
Senator Jaffer: That is right.
Senator Angus: Thank you very much.
The Chair: It is the one that the concluding portion refers to 6(b).
Senator Jaffer: That is right.
The Chair: Thank you for that Senator Angus.
Are there any questions or comments?
Senator Lang: Mr. Chair, it would seem to me, if we were to support this amendment, it would effectively take away the requirement, where appropriate, for the mandatory minimum sentence to be imposed. That is the way I read this.
I see Senator Cowan shaking his head. It would certainly give the discretion to the court and that is not the purpose of mandatory minimum sentences. Mandatory minimum sentences are to set the moral compass of how Parliament, how society, views these types of offences. It would seem to me that if we were to support this then we effectively have done away with mandatory minimum sentences totally to the discretion of the court.
I, for one, could not support this amendment because I firmly believe that the moral compass has not been set by Parliament over the last number of years. We have heard evidence day after day, week after week, of how victims have felt that there has been a miscarriage of justice throughout the country. We have also heard about the inconsistency of the sentencing that has been taking place across the country. I am not here to criticize the judiciary; I am here as a member to say that we have to set a basic minimum so that they understand the seriousness of how society views this epidemic that we have been witnessing over the course of the last number of years. Steps have to be taken. Subsequently, I cannot support the amendment.
The Chair: Thank you.
Next is Senator Frum, to be followed by Senator Fraser and Senator Cowan.
Senator Frum: I am in agreement and in support of everything that my colleague said. I would reiterate that it is important to keep remembering that the mandatory minimums in this bill apply to serious violent crimes, especially against children. They are appropriate and not excessive, particularly with the ones again children. As Senator Boisvenu pointed out, drug trafficking is, in great effect, a crime against children as well. He makes the point that to put back the discretion of the judge entirely would undermine the purpose of this bill and this bill is here to protect children.
Senator Fraser: This amendment is rather more modest than some of my colleagues perceive. This amendment would apply only to the controlled drugs and substances portion of Bill C-10. It would not apply, notably, to the portion of Bill C-10 that refers to sexual offences against children. The countries with which we regularly compare ourselves, the United States, Australia and the U.K., all have general safety valve provisions in their laws where mandatory minimums exist. The reason for that is that you can never, when you are drafting legislation, envisage the most extreme cases.
We have had much discussion around this table recently about this Smickle case in Toronto, which clearly no one who was drafting this original legislation under which he was charged would ever have envisaged. That was not the kind of case that the legislators did envisage when they were writing that particular piece of legislation and inserting that particular mandatory minimum.
In this case, clearly there would have to be exceptional circumstances. The general mandatory minimums would continue to apply, what Senator Lang refers to as, I think, the moral compass would be clear. However, for those exceptional circumstances by definition, ones that do not fit the general pattern that this bill is designed to address, there would be an escape valve, which I believe is entirely appropriate and would be in line with what other like-minded countries do.
Senator Cowan: One brief point in elaboration of that, namely, that we still have the Charter. If a judge finds that a mandatory minimum sentence, in the circumstances before the judge, would be cruel and unusual punishment, then it is gone. As Senator Fraser said, we are not dealing with the more serious cases here; we are dealing with the lower end, where a mandatory minimum sentence would be imposed. That is, the kind of circumstance that Senator Baker referred to earlier when we were dealing with a previous proposed amendment. It is simply in exceptional circumstances where the judge has the discretion. We are not removing or gutting the mandatory minimum sentence regime at all. This is simply putting in a safety valve, which, as Senator Fraser says, exists in other comparable jurisdictions. It seems to me to be a most reasonable, most sensible amendment that would not take away in any way from the approach that the government is taking with respect to mandatory minimum sentences.
Senator Lang: I would argue that point because we have just gone through the reasons we did not support the previous amendments, namely, because we felt that there were two elements there. One was that the authorities have given some comfort — maybe not enough for some around this table, but comfort — that they are not there to prosecute those who are smoking one marijuana joint; they are there to deal with the individual and individuals who are collectively trafficking and bringing this type of activity to the doorsteps of Canadians.
The other point I would make is, once again, that safety valve that you talked about, as far as I am concerned, is the drug courts. There is that discretion within the courts. You talked about that one pill. As I have pointed out, we have had six deaths in the last number of months on the West Coast from one pill given to someone who did not know what they were doing and, suddenly, we have a family whose daughter or son is dead and all the grief that comes with it, under the guise that it was all "innocent fun." Well, it was not innocent fun.
We do have the safety valve that Senator Fraser has talked about. It is there, but there are consequences. In order get that safety valve, you have to go through a program so that you fully understand what you have done and why you cannot do it again.
Senator Angus: I will be brief. To add to what Senator Lang said, I will refer to what Senator Cowan and Senator Fraser said. The escape valve is, as Senator Lang has just outlined, through the drug courts. There is also recourse, as Senator Cowan said, under the Charter. In exceptional circumstances, you both used the phrase "escape valve" and "exceptional circumstances." We have jurisprudence recently in Ontario and in a number of cases in Quebec. That is what the Charter is for. If there is some lacuna or extraordinary result, unintended consequences, there is a safety valve. I submit that that is all we need.
Senator Jaffer: As for the drug courts, it is my understanding that people who have serious problems go to drug courts. We are not talking about people who would be able to go to drug courts.
Senator Lang, I agree with you that we are trying to set a moral compass here, and that is why we have the mandatory minimum sentence. What I am proposing is that we keep the mandatory minimum sentences, but in very exceptional circumstances there be a safety valve that the judge can look. The judge gets it, namely that there are mandatory minimum sentences, but in exceptional circumstances he will have a way to deal with the offender that is before him. We are dealing with that generally right across the country, and I am asking that we look at that specific person that the judge has to deal with and give the judge a bit of discretion.
The Chair: I believe that concludes our discussion regarding the amendment proposed by Senator Jaffer.
Is it your pleasure, honourable senators, to adopt motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: Colleagues, based upon what I have heard, I declare the amendment defeated.
Senator Fraser: On division.
The Chair: Defeated, on division.
Shall clause 43 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
[Translation]
Senator Chaput: I have an amendment to propose. It concerns Aboriginal offenders. You have it in front of you and it reads as follows:
That Bill C-10 be amended in clause 43, on page 27, by adding after line 11 the following:
"(6) A court sentencing a person who is convicted of an offence under this Part is not required to impose the minimum punishment if it is satisfied that
the person to be sentenced is an Aboriginal offender;
the sentence would be excessively harsh because of the offender's circumstances; and
another sanction is reasonable in the circumstances and available.
(7) If, under subsection (6), the court decides not to impose a minimum punishment, it shall give reasons for that decision."
Honourable senators, in my humble opinion, this amendment is necessary in light of the evidence heard by the committee. It is clear that the Canadian correctional system does not deal with crime as it might be hoped in Canada's Aboriginal communities. Aboriginal citizens are overrepresented in the prison population and that is a concern. While they represent only 4 per cent of the Canadian population, in the prisons this figure rises to 20 per cent.
We have to enforce measures that work and that really help to reduce crime and increase safety in Canada's Aboriginal communities.
This amendment is also designed to respect local and community efforts made to combat crime in Aboriginal communities. We have heard about pilot projects that are succeeding in combatting crime, and we need only think about the evidence given by the minister from Nunavut.
In light of all this, the amendment is also consistent with the decision given by the Supreme Court in Gladue, 1999.
The amendment still respects the purpose of Bill C-10. Judges who decide not to impose a minimum punishment are required to give reasons for their decision. Judges are simply required to take their reality into account.
That is the amendment that I move.
[English]
The Chair: Thank you for that, Senator Chaput. To clarify, to ensure that we are all looking at the same amendment: As Senator Angus pointed out earlier, we received three possible amendments that could relate to this clause 43 on page 7, in particular that are marked "Lib 3," "Lib 4" and "Lib 5." The one we are considering now is the one marked "Lib 4"?
Senator Chaput: Yes.
The Chair: Are there any questions or comments regarding that motion?
Senator Frum: My first response is that I do not think there is any indication or reason to believe that this bill specifically targets Aboriginals, so to make an exception for Aboriginals would suggest that they are somehow going to be disproportionately affected by this bill. I do not know that we have evidence that that is actually true.
I would also point out that there are all kinds of existing mandatory minimum penalties in the Criminal Code, and there are no Aboriginal exceptions for any of those. We have them already for child sex offenders and firearms offences, so to introduce them with these penalties seems arbitrary when they do not exist elsewhere in the code.
I would also say, Senator Chaput, that obviously we all understand the very particular and special challenges of the Aboriginal community, and we did hear about that. However, one element of those challenges had to do with the other side of the issue, which concerns the victims. While there may be a disproportionate number of Aboriginals in our jails, we also know that there is, therefore, a disproportionate number of Aboriginal victims. Therefore, to make exceptions for Aboriginal offenders, to my mind, we are also making exceptions for Aboriginal victims, and I think that is fundamentally unjust. For those reasons, I have difficulty supporting that amendment.
Senator Fraser: Once again, this amendment would apply only to the portion of Bill C-10 that applies to the Controlled Drugs and Substances Act. We did, in fact, hear a great mass of testimony from people who said that this bill will affect Aboriginals disproportionately. That came from, I believe, every witness who either represented Aboriginals or deals with Aboriginals. Perhaps the most impassioned plea for carving out an Aboriginal potential exemption came from former Chief Justice Barry Stuart of the Yukon, but it came also from the Canadian Association of Police Boards, for example.
We know the Criminal Code already includes provision for sentencing to take into account particular circumstances of Aboriginals. That is a reflection of the Supreme Court's decision in Gladue. This amendment would not give a blanket exemption to Aboriginals; it simply says that if the person is Aboriginal and the sentence would be excessively harsh because of that person's circumstances, and another sanction is both reasonable and available, then that other sanction should be used and the court should give reasons for that decision.
It seems to me an absolute minimum for us to meet the requirements that we all know exist for this country to address the truly extraordinarily disproportionate fate of Aboriginals in our existing justice system.
The Chair: Thank you, Senator Fraser.
Senator Lang: Once again, I have to say that the bill before us is crafted in order to meet the offences that are happening in the real world. I do have a concern for the Aboriginal community — I think we all do — in respect of the number of individuals who have had to go into the court system, in many cases, not because of their fault but because of the situation they grew up in, the family situations that they have had to endure in some cases, and the residential school situation we have all talked about.
At the same time — I want to return to Senator Frum's comment — this bill is designed, in the area of drugs, to deal with those who are trafficking. I can assure you, whether he or she is Aboriginal or non-Aboriginal, if they are trafficking, they know what they are doing; they are doing it intentionally and it is premeditated. They are affecting young people within their villages. They are preying on those young people under the pretext that this is a good time. At the end of the day, we see the ravages in these communities.
It seems to me that you should be arguing the converse, to say we must get that trafficker out of that community, at least for a period of time, so the community has the opportunity to assess the situation without him or her being there to interfere in the situation as the community tries to rebuild.
You must understand that in these communities, when you make exceptions like this, they are not necessarily just Aboriginal communities; they are mixed communities. Non-Aboriginal and Aboriginal individuals can be trafficking together, and we will have one exception for one versus the other, less consequence to one versus the other, although they have committed the same crime? That is not what our judicial system is built on. Our judicial system has to be such that it deals with the incident in a fair and equal manner to all involved.
I think I can speak for rural Canada in many ways, because I have not only been in the Yukon but in other parts of the country as well. For the life of me, to say that "Because you are Aboriginal, it is okay; we will give you a lighter sentence, although you have been dealing in some very serious drug offences," I just cannot buy it. It just defies common sense.
We have to start dealing with the real problems that are ravaging these communities. This is the type of legislation that is being put in place to do that. Although I know that the amendment is well intended, I would submit that it takes away from the importance of the bill. One of the important aspects of the bill is that there are consequences for people who get involved in this type of activity.
Senator Jaffer: If I have not misunderstood, I heard some honourable senators say that this does not exist anywhere else. This amendment is just being consistent with what exists in the Criminal Code. Section 718.2(e) of the Criminal Code says:
. . . all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.
This already exists in the code. We did not want to go looking at amendments in the code, with the greatest respect, because we felt we were not looking at the amendments in the code, we were looking at Bill C-10. It is appropriate that we have what is in the code represented in Bill C-10.
The courts have already decided in the Gladue decision that there are serious circumstances when Aboriginal offenders need to be looked at differently. We heard from the Minister of Justice from Nunavut and from Chief Evans from Winnipeg how serious the issue is in the Aboriginal community. We have to look at their issues separately.
Even more than that, the Supreme Court of Canada has said it is staggering, the number of Aboriginal people in our prison population. The Supreme Court of Canada has recognized this. We are saying let us have what is in the code also reflected in Bill C-10.
Senator Frum: It is important to note that the Gladue decision came out after mandatory minimum penalties were already in the code and the Gladue decision makes no reference to MMPs being contradictory to Gladue, so they can coexist.
It is also important to remember that the decision said that for the more serious crimes the punishment should be consistent with the regular punishment for everyone else. Then you get into, for me, an argument about whether these drug crimes are serious crimes. Gladue does acknowledge that if it is a serious crime the punishment should be the same.
Is it a serious crime to traffic in drugs? Is it a serious crime to have an aggravating factor of a weapon? Is it a serious crime to distribute drugs near a schoolyard? Yes, I think those are serious crimes, and therefore the punishments, to me, should be in line with everyone else, the same punishment should apply. I do not think the crimes we are discussing would receive the Gladue exemption.
Senator Angus: Colleagues, I have been wrestling with this issue. I think from my questioning you may have figured out earlier that I am very concerned about the circumstance of our Aboriginal people, the cultural differences and the overpopulation in our prisons, of both male and female Aboriginal offenders.
However, I have concluded, and I studied this carefully and read this weekend around the subject of seeking a solution. This is not the place. We are talking about apples and oranges here. This is where I have come down. The apples are this substantive piece of legislation with a particular purpose, as described by senators Lang and Frum. The problems we have with our Aboriginal peoples are the oranges. It is a different subject matter and it needs to be dealt with in another way. I, unfortunately, do not think this is the place, and therefore I will oppose the amendment.
[Translation]
Senator Boisvenu: It should not be forgotten that Bill C-10 addresses the types of crime that are on the increase in Canada. And we want to send a clear message that for certain types of crime there will be zero tolerance.
According to the witnesses I have heard, the Aboriginal problem seems to be concentrated in certain parts of Canada. And I do not think there is a problem of overrepresentation of Aboriginals in Quebec's prisons.
Instead of always making the Criminal Code less strict, I think it would be better to deal with the Aboriginal problem by other means. I am thinking, for example, of training and job creation. There are also young people aged 18 to 30 who are overrepresented in federal and provincial institutions and who account for 25 per cent of the prison population.
In Quebec's penitentiaries, street gangs are overrepresented by visible cultural communities. Are we also going to attribute what I would call, in quotation marks, "attenuating" circumstances to them because they, too, are overrepresented?
I am not so much in favour of that. I reiterate that Bill C-10 tackles crimes that are the most on the increase. And I think we have to demonstrate firmness in that area.
Senator Chaput: I think that this amendment still respects the purpose of Bill C-10. A court that decides not to impose a minimum sentence must explain its decision. But that does not mean that Aboriginal offenders will always receive less harsh sentences. Courts are simply required to take their circumstances into consideration.
I will end by saying that we continue to impose on Aboriginal communities a system that does not suit them, that does not respect who they are and that does not take into consideration their circumstances, without necessarily finding other solutions.
[English]
The Chair: Colleagues, I believe that concludes our debate regarding the amendment proposed by Senator Chaput.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: Based upon the responses I have heard, I would declare the amendment defeated.
Some Hon. Senators: On division.
The Chair: On division. Shall clause 43 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Jaffer: Chair, I have another amendment, if I may, to clause 43. This amendment also will be on page 27 after number 5 where it says "minimum punishment."
That Bill C-10 be amended in clause 43, on page 27, by adding after line 6 the following:
"(6) A court sentencing a person who is convicted of an offence under this Part may, if satisfied that the person requires mental health care, delay sentencing to enable the offender to participate in a mental health program approved by the Attorney General or to receive mental health treatment.
(7) If the offender successfully completes a program under subsection (6) or if the mental health treatment is ongoing, the court is not required to impose the minimum punishment for the offence for which the person was convicted.".
I would like to remind my colleagues here that we heard from Commissioner Head that there were 13 per cent men and 29 per cent women who had mental disorders in our prison system. I just received an email from someone who said that the chief inspector of prisons, Nick Hardwick, has warned the jails are under serious pressure, and his words are, "This cannot go on indefinitely."
We all know that, so perhaps we need to be even more sensitive. This only applies to the drug sections.
The Canadian Council of Criminal Defence Lawyers appeared before the Legal Committee and proposed that this section be amended. I believe that the most articulate witness on this was Mr. Trudell, a defence lawyer. He could have made many submissions on this bill but only spoke to us about having this amendment.
Of course, you heard me say many times about what Mr. Sapers the Correctional Investigator said, that the profile of the inmates was changing. He said prisons are not hospitals but some offenders are patients.
I asked that we look at this discretion, and you will see that in this amendment we are not saying do not punish them. We are saying let them first get the opportunity of getting some help with the mental health care.
This is a mirror consideration of the Aboriginal amendment we had, and the objective here, once again, is to allow the judge to have some discretion and not to impose the minimum sentence of two years' imprisonment on an offender where there are mental health issues. It advocates treating offenders rather than putting them in jail.
Dr. Bradford said in jail you have a control situation while in a mental institution you have the one-to-one care to help this person heal. Let them get that care first and then they can come back in front of the judge. It advocates treating offenders rather than putting them in jail.
The Canadian Centre for Abuse Awareness also agrees with this amendment. One witness who was in favour of mandatory minimum sentences, Ms. Campbell, who had horrible things happen to her, said to us:
I do agree that in looking over all the recommendations that may be a safety valve for mentally ill should be considered. I work in the prisons as a minister. Eighty-five per cent of women in prison have been sexually abused and I believe the number is higher for men in prison. If we want to empty the prisons we have to deal with the root cause.
She goes on to say:
I do not believe that people with a mental illness should be sent to jail. That is not where they will heal.
I also want to keep in mind what Mr. Saint-Denis from Justice Canada said on February 1 about drug courts:
. . . my understanding right now is that we are not really considering expanding the number of existing courts.
In terms of distinction, honourable senators, if there was one change we should make, we should look at the situation of people who have mental challenges, not those who are not convicted because of mental insanity but those who have mental disorders.
We heard a number of times that it takes a village to raise a child. I believe it takes a community to keep its streets safe but it takes a country to look after all the citizens. The onus is here on us. We have to look after all — the victims, the offenders, those with mental disorders. We cannot abandon them, and we have a heavy responsibility to look after them.
Chair, I do not know if this is appropriate, and if it is not, you can rule me out of order. However, I have seen an observation that Senator Runciman will be making a little later. This goes on to talk about the fact that we have to do something about people who come in front of the courts that are mentally disordered.
I will leave this one last thought with you. Senator Runciman was saying he would like to take you to Kingston to see the situation there. I would add to that. I would like to take you to the police holding cells, and you will never forget that experience. I go there many times, and in the police holding cells, many nights half the people there have mental challenges. I believe it is our responsibility here, if we really have our second sober thought, to look at the situation of those who have mental challenges.
The Chair: Thank you for those comments, Senator Jaffer.
Senator Runciman: I appreciate Senator Jaffer's interest in and very genuine concern about this issue. There is no question that mentally ill offenders are creating significant challenges not just to the justice system but society at large.
As we heard from a wide array of witnesses, I think a lot of this can be traced back to the deinstitutionalization policies adopted by jurisdictions across this country and policies that were supported by, again, a wide array of folks, political parties and other organizations. As we found out, of course, community supports were really never put in place in an adequate way to deal with the numbers of people who require treatment; and as a result, we have seen crime rates increase in terms of the involvement of the mentally ill.
We talked about witnesses. One of the most persuasive witnesses was Dr. John Bradford, one of the most respected forensic psychiatrists in Canada. He reminded us, Mr. Chair, that there are options available. Mentally ill offenders who are not criminally responsible are diverted pre-arrest and post-arrest through section 16 of the Criminal Code which finds someone not criminally responsible if they are unable to appreciate the nature and quality of the act. If they are criminally responsible, I do not think any of us would agree that they should get a free pass, if you will, out of the correction system. There is no question that there is a need for better identification and management of mental illness before people get into trouble and a new approach for treatment of offenders while serving sentences, and as Senator Jaffer referenced, that is the observation that will be coming before the committee later in the day.
Although I understand the good intentions here, I think that this is just an unmanageable situation. There are tools in place currently. If we proceed with this, and I think, Mr. Chair, you raised this issue earlier in the hearings, the implications for the system are ominous in terms of the overwhelming challenges already facing our court system. Psychiatrists handling this side and psychiatrists handling that side, there are not treatment facilities or treatment options available to anywhere near an adequate degree or we would not be in these situations.
I understand the good intentions, but I cannot support this amendment.
The Chair: Thank you, Senator Runciman.
Senator Fraser: I speak in support of the amendment.
We have been told repeatedly that this portion of Bill C-10 is designed to capture the big fish, the people who are engaged in what the minister referred to as the business of trafficking, the people that we all agree are bad and should be captured by the law.
However, we have also heard testimony, including testimony from the justice department, that this bill as drafted will also capture smaller people. The fact is that, in particular when we are dealing with drugs, the further down the chain you go, the more likely you are to find people who do have problems of mental health which are separate from drug problems, which contribute to the drug problems but which are separate from the drug problems, and therefore not necessarily appropriate for treatment under drug court treatment programs.
We heard from I believe it was Dr. Watts, a psychiatrist, who said this bill will be the equivalent of dragnet fishing. You will scoop up the people you want to get but you will also scoop a whole lot of other smaller fish. This amendment would help to divert from the dragnet the neediest of all the people who otherwise are likely to be swept up in it, and I think we should support it.
[Translation]
Senator Boisvenu: Senator Jaffer raises a problem that we all heard about last week, that is, the problem of mental health in penitentiaries.
Senator Runciman said that there are already avenues open to the courts. I am thinking, for instance, of imprisonment for psychiatric or psychological assessment, the possibility that an alleged accused may be declared unfit for trial or recognized as not being criminally responsible. There are already safety valves for this type of clientele.
The problem of mental health is of particular concern to me in light of my past experience. I was in Saint-Romain this weekend to attend the religious funeral of two small children murdered by their uncle and of their grandmother murdered by her son. There are no services. Psychiatry or mental illness is the forgotten cousin of the health systems in Quebec, and I think it is the same in the other provinces.
For someone who is seeking psychiatric care, the wait time in Quebec is almost one year before the government provides help. The choice we have is between the street and imprisonment. At present, if we want to protect an individual, a family and society, until we have settled all the problems of psychiatry — and that will not be tomorrow — it is a long-term job finding solutions to these problems. A correctional system with minimum sentences is going to provide better protection for individuals, society and the family. It is utopian to think that tomorrow morning these people that we are going to hand over for publicly funded treatment are going to be treated. They are going to return to the streets and continue their criminal ways, endangering the lives of those around them, as happened in Saint- Romain, with this man who murdered three people. There have been 100 such cases in Quebec in the past 10 years; 100 people have been murdered by their children because of the lack of services, because of deinstitutionalization. These are unfortunate choices, but I think that it is the best choice for such people at present.
[English]
Senator Runciman: It might be helpful to read section 16 of the Criminal Code, which I referenced earlier. It says the following:
No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing it was wrong.
Section 672 of the code also establishes rules concerning court-ordered assessments of the mental condition of the accused. If someone does not understand the nature or quality of the act they have committed, they will either not face charges, as Dr. Bradford made clear, or they will be found not criminally responsible. However, if they are criminally responsible, I do not think we should create a third status and in effect give them a get-out-of-jail-free card.
The Chair: Thank you, Senator Runciman. You referred earlier to a comment I made during the hearings regarding the need for appropriate mental health treatment. What strikes me in all of this, there is no question around this table that all of us recognize there are serious issues around mental health in this country, and those issues do impact criminal law. There is no question about that.
It is an issue, though, that in order to find a solution — and these comments are perhaps equally applicable to the circumstances with our Aboriginal community — it does not seem that there are simple answers that involve federal- provincial jurisdiction, community resources and community leaders.
In so many ways, it strikes me that the use of the Criminal Code and criminal law to find the solutions and implement them to something as complex as the mental health issues that so many of our citizens are faced with, there is a role to play but one that in a lot of ways criminal law is ill-equipped to handle. It involves far broader groups and interests.
Certainly, I know we all, through what we have been through in these hearings, want to ensure that is well recognized and that there are real steps taken to deal with this issue going forward. I for one do not have all the solutions, and I am not sure any of us do, but this requires serious attention. We have to do better than we are doing right now.
Senator Jaffer: I want to point out, and I am sure my colleagues know this, that I am not for a minute saying we give them a free pass out of jail. I am specifically saying that before the person is convicted of an offence, delay the sentencing to enable the offender to participate in a mental health program approved by the Attorney General or to receive mental health treatment.
What my colleague Senator Runciman was talking about is a different situation. Those people would be treated differently anyway, those found not to be criminally liable. That is not what we are talking about.
Commissioner Head said 13 per cent of men and 29 per cent of women in our court system have mental disorders. Those are the people I am speaking about, not those who have already been sieved out because of even worse mental issues. I am not saying give people a free pass; I am saying instead of creating beds for patients in prisons, let us treat them first and then deal with what they have done.
The Chair: Thank you.
Colleagues, I believe that concludes our debate concerning the motion for amendment proposed by Senator Jaffer.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Hearing your responses, senators, I would declare the amendment defeated.
Some Hon. Senators: On division.
The Chair: Shall clause 43 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Colleagues, we will now proceed to clause 54. Before we do, I will mention to you, when we finish our consideration of clause 54, we will take a 15-minute break and be back to carry on from there.
Shall clause 54 carry?
Senator Fraser: Chair, I wish to propose an amendment. I move:
That Bill C-10 be amended in clause 54, on page 32,
(a) by replacing lines 4 and 5 with the following:
"of the sentencing judge, the degree of "respon-"; and
(b) by replacing lines 19 to 23 with the following:
"(c) the Service uses the least restrictive measures that are consistent with the protection of society, staff members and offenders;".
[Translation]
That Bill C-10 be amended in clause 54, on page 32:
(a) by replacing lines 4 and 5 with the following:
"of the sentencing judge, the degree of respon-"; and
(b) by replacing lines 19 to 23 with the following:
" c) the Service uses the least restrictive measures that are consistent with the protection of society, staff members and offenders;".
[English]
This amendment, which has two parts, responds in particular to the very grave concerns raised by the correctional investigator, Mr. Sapers, and by Mr. Michael Jackson and Mr. Graham Stewart who, as you know, have done a fairly thorough study of the correctional system.
The amendments refer to the purpose and principles of the correctional system that are set out in Bill C-10. The effect they have is, first, to remove from the correctional system the nature and gravity of an offender's offence as one of the elements that the correctional system assesses in carrying out the sentence. I will speak to that first.
Mr. Sapers in particular made the point that it is the courts, not the prisons, that weigh the nature and gravity of an offence and impose a sentence accordingly. That sentence can range from a few months up to life imprisonment, but it is the courts that make that decision. Once that decision has been made, the business of the corrections system is to administer the prisons, having regard to all relevant available information, including the stated reasons and recommendations of the sentencing judge, the duty of responsibility of the offender, information from the trial or sentencing process, and many other purposes and principles as set out in this bill.
However, the nature and gravity of the offence is not the business of the correctional service, so this amendment would remove that element of the purpose and principles of the correctional service.
Secondarily, the amendment would restore what has been the language about the methods to be used by the correctional service.
The act as it now stands, not the bill, says that the service shall use the least restrictive measures that are consistent with all the other principles.
This bill would amend that to say the service uses measures that are limited to only what is necessary and proportionate to attain the purposes of this act. As Mr. Sapers said, "necessary" and "proportionate" are two of the three pillars upon which the system must rest, but "least restrictive" is the other one.
Professor Jackson, who, as I understand it, was involved in the drafting of the CCRA, explained to us that the "least restrictive measures" is in part a response to the Supreme Court's Oakes decision and other judgments related to the Charter.
We have also been told that the "least restrictive measures" is clear language; it is easy for the correctional system and the individuals caught up in it to understand; "necessary" and "proportionate," and "proportionate" in particular, will be much harder for individuals to interpret, particularly if they must make a decision rapidly, as I am sure is often the case in the correctional system.
Finally, Mr. Sapers said that "necessary" and "proportionate," without "least restrictive," would make his job much more difficult because it is his job to go in and assess the work of the correctional system and that, for his investigators, "necessary" and "proportionate" will be much harder to adjudicate than "least restrictive measures."
Therefore, I propose the amendment that you have before you.
[Translation]
Senator Boisvenu: It will not surprise you to hear that I do not share the senator's point of view at all on this point. The problems of the Canadian correctional system are well-known and some of them are on the rise, I think, such as drug use in prisons. We know that 80 per cent of detainees use drugs. The reincarceration rate is close to 70 per cent. Many criminals do not participate in rehabilitation programs, more often by choice than on account of a lack of such programs.
The disciplinary system in prisons has been criticized by the correctional officers' union. They say that over the years they have lost the control in the penitentiaries. In some penitentiaries, the control and management are said to be in the hands of the criminals. This is a serious situation.
Canada's correctional system also has an administrative system for managing complaints. An administrative tribunal of disciplinary judges helps criminals when a punishment is imposed on them. The criminal is defended and the correctional officer is represented by an assessor. There is a whole procedure in the penitentiaries to ensure that, if a criminal is given a punishment, it is fair. It will not, however, be a minimum. Everything that was disciplinary and rigorous has been dragged down. The result is that, nowadays, many criminals return to the penitentiaries because these institutions no longer pose a threat and they impose fewer and fewer restrictions on inmates. Bill C-10 seeks to restore discipline and rigour.
It would seem contradictory to me to say that, when we impose a punishment on a criminal who lacks discipline and respect, this punishment will be the least rigorous one possible, whereas our judicial and disciplinary approach in schools is based on the severity of the act committed.
The federal penitentiaries have a process that must be the envy of many penitentiary systems around the world. In Canada there are 1,400 criminals in prison. And they have filed 26,000 complaints. It cannot be said that these detainees are not entitled to complain if the punishment is not proportional to the offence committed. They have been given tools that a lot of citizens do not have.
Take the example of Valery Fabrikant. There is no one who does not know about the murders committed by this man. I am told that, in Montreal, the full-time job of one employee is to manage the complaints filed by this inmate. This means one employee for every criminal!
Bill C-10 balances things by putting some discipline inside penitentiaries. It supports the guards who every day are with people who show little respect for their work. Bill C-10 thus closes a gap in Canada's legislation respecting imprisonment, where we are really going to restore discipline and rigour.
Senator Dagenais: My comment will be brief. We should recall that the police officer Sandra Dion clearly said in her testimony that victims need to have their faith in the judicial system restored. That is what the bill seeks to do. The bill is intended to increase the safety of the population. So I do not agree with the Honourable Senator Fraser's position.
[English]
Senator Angus: This is an area that again perplexes me greatly. We sat here all last week having an intense tour d'horizon about our corrections system and our criminal justice system in the context of an initiative by the government to try to make our streets and communities safer.
It was intensive for all of us. I have spoken to most of you individually on this.
One of the things I came away with on Friday, and I do not want to give the impression I spent the whole weekend reading my criminology books, but this is one area I really have a problem with; I do not feel the bill goes even far enough, and this amendment in particular.
The reason I say that was first provoked by Judge Nunn when he told us about the famous prisoner AB, who was really making great progress when he finished going to the youth protection facility in Nova Scotia. The downward spiraling had been arrested. He was starting to read constructive literature. There was a general feeling maybe they could turn the boy around. He was sentenced to the six-year deal he had been given under the youth laws, which was a maximum, as I understood it. When he was transferred to the adult prison system, there was an almost immediate reversal.
The corollary or the complementary to Judge Nunn for me was Commissioner Head, the head of the prison system, and I did question him. Where they did not go into detail, they lead our imagination. Basically, the testimony that I took away, and I think most of you did, and I do not see how you could not, is that, first of all, crime is rampant within our prisons. I heard evidence here saying that someone went in for smoking a marijuana cigarette and came out a hard addict on heroin and big drugs. I am wondering how that happens in our prison system and where they get these drugs and how gangs are allowed to flourish in the prison system. We heard about the abuse, sexual and other abuse, of prisoners, be they mentally impaired or otherwise.
We were thinking about ways and means of getting this message to our colleagues in the Senate Chamber through observations or whatever, but to me we have to make this point. It is out of control.
We also heard evidence, and this is my third point, that it is very hard to recruit staff to work as wardens and employees in our adult prison system. Literally, there is a fear factor. Someone gave me for Christmas the Shawshank Redemption movie, and I thought I should send a copy of that CD to everyone here to remind us what a horrendous situation it is in prison in any event. If in 2012 we cannot have law and order within the prisons and within the punitive regimes, we have a big problem.
We are trying to give this to the officers, subtly, I suggest, in this amendment — not your amendment, Senator Fraser, but the government amendment. I have to oppose it. I do not think it goes far enough. I would have great sanctions in there and give them the power. Otherwise, it is spiraling down.
Senator Fraser: To just respond, it is well known that there are serious problems in the prisons. I do not believe that this bill will eliminate the influence of criminal gangs in prisons, but, as we heard, it will increase the likelihood of Ashley Smith cases and that type of case. That is the kind of situation we should be extremely concerned about and do everything we can to avoid.
The Chair: Colleagues, I believe that concludes our debate regarding clause 54. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Hearing your responses, I would declare the amendment defeated.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 54 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: The next clause that we will consider is clause 57. Shall clause 57 carry?
Senator Fraser: I have an amendment to propose. I move:
That Bill C-10 be amended in clause 57,
(a) on page 34,
(i) by replacing line 35 with the following:
"(ii.3) the programs that are relevant to the offence committed by the offender and that were designed to", and
(ii) by deleting lines 42 and 43; and
(b) on page 35, by deleting lines 1 to 6.
This amendment has to do essentially with the disclosure to victims of information about offenders. I think we are all in agreement that victims have the right to be informed about a number of things concerning the person who committed the offence; however, as you will recall, the Privacy Commissioner did raise concerns about the points at which information that is appropriate to be provided spills over into information that is not relevant to the victim or the offender and that starts to erode the privacy rights of the offender, because offenders do continue, as Canadian citizens, to have rights. Those rights are circumscribed as long as they are in the correctional system, but they exist.
For example, we are proposing that when information about programs is provided to the victims, that that information concern programs that were actually relevant to the offence. A hypothetical example would be if someone has been convicted of a violent offence but, while in the penitentiary system, completes a program designed to address a gambling addiction. That is not necessarily relevant to the offence. It is a much more personal element.
Similarly, on temporary absences, we propose simply to remove the paragraph referring to temporary absences, although, if colleagues wished, we could narrow that down and remove only the section relating to the reasons for any temporary absence, because that was the core element that Ms. Stoddart addressed; again, someone who is temporarily absent from the penitentiary system, for example, to receive medical treatment, perhaps treatment for cancer. This has nothing to do with the offence or with the victim and comes under the general heading of what should be private. I know we have received information and we also heard testimony to the effect that the correctional service is, in fact, quite careful about the amount of information that it provides. It tries to strike that balance between what victims have the right to receive, the moral right, and what the offender has the right to presume will be kept confidential.
We know the correctional system tries to address that, but nonetheless we believe that it is appropriate not to rely entirely on the discretion of the correctional system but to ensure that the law, as written, as passed, reflects the basic principles that we, as parliamentarians, believe need to be respected.
The Chair: Thank you, Senator Fraser.
[Translation]
Senator Boisvenu: I wish first of all to commend the government's initiative of having included in Bill C-10 the right to information for victims of criminal acts. That was one of the criticisms made by the Ombudsman for Victims of Crime, who told us that victims must be given the right to information about criminals. Criminals have often chosen the act to be committed, but their victims have not.
All the victims who appeared before us stressed the importance of knowing a criminal's status in the rehabilitation process. I am thinking of such people as police officer Dion and Diane Tremblay. Ms. Tremblay said that, if the criminal's second wife had known what had happened when he was incarcerated, he might not have been able to victimize others.
The rehabilitation process may be long and complex. Depending on the influences on criminals while they are in prison, this process may be positive or negative; they may regress or progress.
It is important for the victims of criminal acts to know whether criminals, on their release, still pose a risk to them. Let us take the example of a criminal sentenced for assaulting his former spouse and who becomes addicted to drugs while in prison. If the victim is not made aware of this problem at the time of the offender's conditional release, the offender may represent an even greater threat than when he went in because he has developed other delinquent behaviours in prison.
So victims cannot be satisfied solely with information linked to a crime that took place, 5, 10 or 25 years ago. They also have to know about the criminal's rehabilitation process.
Has the approach to his criminal behaviour been strict or permissive? In the street — we saw this with police officer Dion, some 100 metres from her home — is he still a danger to my safety or is he rehabilitated? So by limiting information about the crime committed over time, I think we are also limiting information about the level of risk for the victim after the criminal's imprisonment. I cannot accept that information to victims be limited; I believe that criminals will be at an advantage if we do that.
Senator Dagenais: Obviously, I will not repeat everything that Senator Boisvenu has said; I simply wish to say that victims are entitled to know an offender's progress. I think that victims must be considered in the system and they must be taken into consideration at conditional release hearings. Victims are entitled to know whether there has been a change in an offender's behaviour since his imprisonment. It is a matter of transparency and that is what is ensured by Bill C-10.
Senator Fraser: I would like to reiterate that we do not wish to harm victims' rights. We agree on the fact that victims must be heard, they must be given information. It seems to us, though, that it might be advisable to adjust these parts of the bill so as to really target which information is relevant to the victim and to avoid revealing information that does not have anything to do with the crime or with victims' safety. That is all. That is all we are saying.
Senator Boisvenu: Do you think that the Parole Board does not have this ability to discern between the criminal's progress in his rehabilitation and other types of information that might be more strictly personal? I am thinking of his children, his spouse, that sort of information; perhaps even his address, once he is released. Do you think that the Parole Board is not able to distinguish between what is important for the victim in relation to the criminal process or rehabilitation or other types of information that have nothing to do with the crime committed?
Senator Fraser: The Parole Board does a very professional job, for sure, but it seems to me that the law should be clear. The law should not place too much trust in people who have such huge power over individuals. Certainly the Parole Board must exercise very great discretion. Each case is different. So we rely on the Parole Board to judge what needs to be done in each individual case. A bit of precision in the law does not seem like a bad idea to me.
Senator Boisvenu: To my mind, the law does not change much in relation to the habits developed by the Parole Board since 2002. The bill puts it in the law. Now the board is required to do so. Before it was more of an instruction. It embodies three principles: one, the victim is informed of which programs the criminal is taking part in, and how often; two, it can be seen whether, during his time in prison, he has shown discipline or not, whether he has committed criminal acts and whether he has been punished; and third, it can be seen whether the criminal has moved from one penitentiary to another, or his releases, and whether he was alone or not. All this information does not change much from before Bill C-10, except that it is in the law and is now mandatory.
[English]
The Chair: Colleagues, I believe that concludes our debate regarding clause 57.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Based upon your responses, I declare the amendment defeated.
An Hon. Senator: On division.
The Chair: On division.
Shall clause 57 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
The next clause is 64. Shall clause 64 carry?
Senator Fraser: On division.
The Chair: On division.
[Translation]
Senator Boisvenu: I would like to inform my colleagues that we recently managed to get hold of two studies dealing with the effectiveness of electronic bracelets, done in 1993 and 2006, in Florida, and involving about 60,000 prisoners. Copies are available for senators. These studies compare the cases of recidivism and escape, as well as offences committed with and without the bracelet. These are two interesting studies that demonstrate a level of effectiveness.
Senator Fraser: Do these studies concern the latest technologies, the advanced ones? GPS?
Senator Boisvenu: The latest one, from 2006, seems relatively recent. We could submit them to the committee, Mr. Chair.
Senator Fraser: That would be interesting.
[English]
The Chair: For those viewing these proceedings, clause 64, which was previously carried, related to that topic of the electronic monitoring of offenders.
Thank you for that, Senator Boisvenu.
Shall clause 69 carry?
[Translation]
Senator Fraser: I move:
That Bill C-10 be amended in clause 69, on page 38, by adding after line 43 the following:
"(m.2) respecting the collection, use, storage, disclosure, disposal and destruction of information obtained by means of a monitoring device referred to in section 57.1;".
[English]
What this amendment would do is respond to concerns that were raised, not only by the Privacy Commissioner but also in the evaluation report done by the correctional service itself in connection with these electronic monitoring devices. The concern is that there are no rules about how the information that is gathered shall be collected, used, stored, disclosed, disposed of, destroyed, et cetera. You will find that on page 62 of the evaluation report.
This amendment would allow the government — not require but allow — to make regulations respecting the collection, use, storage, disclosure, disposal and destruction of information obtained by these monitoring devices. It seems particularly pertinent in that by and large it will be quite personal information — perhaps not by and large, but in some specific cases.
For example, I referred earlier to people going for medical treatment and the GPS will say this person has gone to XYZ cancer clinic or whatever.
We are not saying the information should not be collected. We are saying there should be safeguards to ensure that it is properly collected, stored and used. When it is no longer pertinent, it should be destroyed.
[Translation]
Senator Boisvenu: I could not swear to it but I think that this type of information is comparable to that gathered over a period of 10 or 20 years on criminals declared to be dangerous or to be controlled. Later, there are mechanisms to dispose of the information linked to the movements of criminals who are at the end of their imprisonment. I think that it is five years after the end of the sentence. So with regard to wearing the bracelet, I think that there is no reason to provide for a specific regulation and that we should use the current regulations or laws to manage the information.
[English]
The Chair: Colleagues, I believe that concludes our debate on the amendment proposed by Senator Fraser.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Honourable senators, hearing your responses, I would declare the amendment defeated.
An Hon. Senator: On division.
The Chair: Defeated on division.
Shall clause 69 carry?
Some Hon. Senators: On division.
The Chair: Carried, on division.
Shall clause 92 carry?
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 115 carry?
Some Hon. Senators: Agreed.
Senator Fraser: We have an amendment to propose for this clause:
That Bill C-10 be amended in clause 115, on page 65, by replacing line 34 with the following:
"(b) three years, in the case of an offence that is".
This has to do with the new rules lengthening the amount of time that must elapse before people can apply for pardons, which will go now to 10 years for offences that were prosecuted by way of indictment.
The bill says that the new limit should be five years in the case of an offence that is punishable on summary conviction. We would propose to bring that back to three years. By definition, summary convictions apply to offences that are significantly less serious than those proceeded with by way of indictment. Quite a number of them can and do result in fines, not even more serious sentences than that, and three years seems to us ample time to wait before applying for a pardon. There is never a guarantee that a pardon will be granted, but it seems to us that one should be able to apply after a summary conviction after three years.
The Chair: Are there any comments or questions?
[Translation]
Senator Boisvenu: Whether it is here or in the House of Commons, the discussion about pardon gave rise to debates. It has been discussed for close to two years and Bill 23A managed to tighten up the criteria for receiving a pardon.
It will be remembered that, in 2007, 97 per cent of all applications for pardon were granted and it had become something automatic that took away all credibility from applications for pardon. Lots of citizens and victims criticized the speed with which people obtained this privilege. Applying for a pardon is not a right, it is a privilege.
It was decided to set some guidelines so that a criminal who resumes his normal life should have every opportunity not to resume his criminal ways and demonstrate this as a good citizen. What we are hearing from victims is that these guidelines are reasonable. We think so too.
We must not forget that, once a pardon is given, the record of the accused or rehabilitated criminal drops off the police radar. In 2007, of 30,000 applications for pardon, over 800 were from sexual predators, some of whom were four-time repeat offenders.
When a pardon is granted, the information drops off police radars and is found elsewhere at the RCMP. Police officers therefore have less access to this information. It is important for this length of time to be enough to ensure that never again will this criminal repeat his offence and I think that meets society's expectations.
Senator Fraser: I would like to reiterate the fact that we are talking about offences punishable on summary conviction, that is, that are more or less minor, not serious crimes.
The guidelines mentioned by Senator Boisvenu have already been reinforced in earlier bills. Not only have we drastically increased the costs, but we have also created much more rigorous conditions for granting what used to be called a pardon. I repeat, we are talking here about relatively minor offences.
With all respect for all victims — they deserve our respect, they have it, we respect them. They are entitled to receive information, they have something to contribute.
Still, it is not up to them to make the final decision as to whether a pardon should be granted or not. I prefer the terminology proposed in this bill. The term "record suspension" is much more accurate.
Senator Boisvenu: With Bill C-10, this is the first time in the history of the Canadian Parliament that so many victims have come to testify. For 150 years, they have been kept out of the judicial process because one day the state decided to represent the victim in the judicial process instead of having fast trials the way they used to in the Far West.
Victims have something to contribute. They did not choose their condition. The criminal, with all the negative influence he may have, chose his condition.
Victims of criminal acts spoke up and they did it loud and clear, when they said they wanted to be kept informed. I agree that they are not always the best judges and that it is not up to them to make decisions. But now they have spoken up, and they will no longer be kept out of the know.
There are trials for assault crimes that take place in municipal courts and at the end of which individuals are sentenced to a fine. We must not forget that this does not mean that just because there is a fine the crime is not violent. There are people who have committed assaults and who have been sentenced to a fine because that is how municipal courts operate. Governments have delegated this type of trial.
Offences punishable on summary conviction are not non-violent. We have to be careful. Cases of spousal violence and gross indecency are heard in municipal courts. It is often the beginning of a process that can go further.
[English]
The Chair: Thank you, Senator Boisvenu.
Colleagues, in respect of clause 115, I believe we have concluded our debate in respect of the amendment proposed by Senator Fraser.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Based upon the responses that I have heard, I would declare the amendment defeated, on division.
Shall clause 115 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
Senator Fraser: I wonder if I could move to reopen clause 115 because I did have another amendment to propose to it.
The Chair: I was going to ask you that because we had circulated to us three possible amendments for 115.
Senator Fraser: I am looking at 10.
The Chair: We had just dealt with Liberal 9.
An Hon. Senator: There are two more, in effect.
Senator Fraser: Well, yes; 11(b) is a consequential amendment.
The Chair: We will reopen consideration of clause 115.
I will ask you once again, shall clause 115 carry?
Senator Fraser: With thanks for the indulgence of colleagues, I have another amendment to move:
That Bill C-10 be amended in clause 115, on page 66, by replacing line 2 with the following:
"(b) more than three offences, each of which arose out of a different event or series of events, each of which".
Colleagues will recall the discussion we had around this table about the provision in this bill to say that a pardon, a record suspension, may be denied, shall be denied to a person who has been convicted of more than three offences, each of which either was prosecuted by indictment or is a service offence subject to a maximum punishment of imprisonment for life, and for each of which the person was sentenced to imprisonment for two years or more.
The intent here is quite clear. It is to go after serious repeat criminals. The concern that we raised was the case of somebody, and it would often be a young person — and I do not mean a young offender, but 19 or 20 perhaps — who had so to speak one very bad day, where he went on a bender and got in a fight and did a whole lot of really bad things that day — one really bad day.
We were told that the minister shared this concern and did not want this provision to capture somebody who had one really bad day. However, in our view, as written, this bill quite likely could and indeed perhaps would capture somebody who had had one really bad day because it is frequently the case that when a person has, on a given day, committed a series of serious offences, separate charges are laid and separate convictions are registered.
All that this amendment would do would be to build into the bill, into the eventual law, the safeguard that it is our understanding the minister wanted in the first place, which is to ensure that we are not talking about one bad day here; we are talking about actual repeat criminals. That was the evidence of Mr. Churney.
The Chair: Thank you, senator. Is there any comment or debate concerning that?
[Translation]
Senator Boisvenu: Senator Fraser, we understand that suspension of pardon will be for repeat offenders who have committed three offences punishable by a sentence of two years plus a day.
Senator Fraser: And who have been sentenced to two years.
Senator Boisvenu: Two years plus a day.
Senator Fraser: Two years or more.
Senator Boisvenu: We understand that these are people who have been sentenced to a federal penitentiary.
Senator Fraser: Yes.
Senator Boisvenu: They may have committed earlier crimes for which they received a sentence of two years less a day, for example, six or nine months in the community. However, as long as they do not receive a sentence of two years plus a day, they are not affected by the pardon prohibition. Do we understand the same thing?
Senator Fraser: I understand the same thing.
Senator Boisvenu: During my visits to five federal penitentiaries last year, I asked, "How many inmates do you have for the first time who have already spent time in a provincial prison?" and I was told the majority. That is why I am wondering and what makes me uncomfortable about your motion.
Even though we say that, after three crimes punishable by two years plus a day, there will be no pardon possible, we are going to be faced with people who may have four or five provincial sentences of two years less a day and who may apply for a pardon. Do you understand?
Senator Fraser: Yes, I understand very well.
Senator Boisvenu: Do you see how the notion of repeat offending is very flexible in the system?
Senator Fraser: I understand very well, Senator Boisvenu. But this bill does not affect these people neither as it is written nor if you accept my amendment.
The amendment affects only what is proposed here. And what is proposed here, you are right, does not affect people who might already have received sentences of less than two years. There another amendment would be required. If you want it to affect people who have already received sentences of less than two years, you would have to move your own amendment.
All I want to do is to look at the clause in the bill that affects people who have already received three sentences of two or more years, and I just wanted to make sure that it concerns only repeat offenders. I would not like this bill to catch people who might have just had one bad day and made some monumental mistakes, but only once in their lives. That is all I am proposing.
The problem you describe exists, but it has absolutely nothing to do with this bill. It is something else. I encourage you to propose your own amendment.
Senator Boisvenu: I would have been harsher. It would have been any sentence, whether for three months or a sexual predator who has committed three crimes, in my opinion pardon should no longer be allowed. What we are proposing is even more flexible for these people. You understand what I mean. I will not go on any longer.
Senator Fraser: Even if we are just talking about a young man who made a series of mistakes once in his life, in one day?
Senator Boisvenu: He must be punishable. Rarely when you make a mistake are you sentenced to two years plus a day. That is the spirit of the law. Even people caught for drinking and driving, we see some who have been arrested 8, 10, 15 times and who have never spent a day in prison. It is the spirit of the law, Senator. You think that someone can make a little mistake and end up with a sentence of two years plus a day.
Senator Fraser: It is a big mistake.
Senator Boisvenu: I agree with you there. If it is a big mistake, we are no longer talking about your little mistakes.
Senator Fraser: I was not talking about little mistakes. I am only talking about an event that included three big mistakes, after which the person did not make any more mistakes. Does this mean he should never be recognized for this for the rest of his life?
Senator Boisvenu: This is an interesting debate. I have followed dozens of cases. Let us take, for example, a young criminal who has committed a bunch of offences. What happens in real life? He will plead guilty to the most serious offence so that afterwards the other charges will be dropped. That is real life.
Senator Fraser: And there are other cases, Mr. Chair, Senator Boisvenu and I will not reach agreement on this subject.
[English]
The Chair: Senator Fraser, I just want to clarify something here. Again, we have not seen these amendments before they were put in front of us, so we are trying to read them and listen. I want to make sure I understand, though. This amendment that you would propose relates to a subsection, the purpose of which, as I understand it, relates to the ineligibility periods for records of suspension or parole. The intent of (b) is to deal with persons who find themselves prosecuted by the most serious of offences. That section currently provides for those who have more than three offences, prosecuted by indictment, all three — not partially summary, so they are all indictment — or for which the offence is subject to a maximum punishment of imprisonment for life. These are extremely serious offences. I guess from your comment you would feel we should carve out an exception for someone who has, in your words, a very bad day and finds themselves faced with three indictable offences and one of them could involve punishment for life.
Senator Fraser: At the moment, if we could carve out the service offences, because they come under a slightly separate regime, and my amendment would not refer to service offences. It would refer to the three offences, each of which was prosecuted by indictment.
I am not suggesting that people who have committed the most heinous of crimes — well, murder, you cannot get a pardon anyway because the sentence is life and it never expires. Short of that, I am not suggesting that the people who have committed the most heinous of crimes should be allowed to get away scot-free and be pardoned or have their record suspended willy-nilly. The amendment I am proposing here would probably apply to only a few people but, for those few people, it could make a very great difference.
We all know that it is possible for people to go completely off the rails, particularly when they are young, for one day or two days and do terrible things. I am just talking about one day, because the amendment would refer to separate events or a series of events. I just would suggest to you, and we have had considerable discussion about this on our side, that, to ensure that we do not capture the people that we do not want to capture, we should make this modest amendment to the bill. We are certainly not suggesting that recidivists be captured under my amendment. That is not the idea at all.
The Chair: The intention would be, though, to create an exception for individuals who were prosecuted for three indictable offences. That is the effect of it.
Senator Fraser: The exemption would be for three indictable offences committed all basically at the same time.
The Chair: Your amendment does not say at the same time.
Senator Fraser: It does.
The Chair: I will not debate. I just wanted to clarify that I understood the intention.
Senator Baker: Many years ago, we used to call it a delict. In other words, did the offences arise from one delict? With the speed at which we are passing amendments to the Criminal Code, 30 years ago someone would be charged with one indictable offence, and today, for the same delict, they could be charged with three or four indictable offences arising out of the same delict — in other words, the same criminal offence. I think that is what we discussed in detail in private in arriving at this. It is to guard against one person being charged with four or five criminal offences because of one delict, in other words, one criminal act. The amendment would say, no, let us make that the offences arose from three different delicts. I wanted to use the word "delict," but the law clerk advised that I was too old in my summation of this and would not accept the word "delict." If they had accepted that word, it would have been much clearer, because then you would have understood, Mr. Chair. Although you are much younger than I am, you would have understood exactly what I meant.
The Chair: I think I am closing in on you.
Senator Angus: We use "tort" in Quebec.
The Chair: Thank you for that. I think we have fairly canvassed that one. I believe that concludes the debate on Senator Fraser's proposed amendment.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Colleagues, based upon your responses, I declare the amendment defeated.
Shall clause 115 now carry?
Senator Fraser: I have a further amendment to propose, chair.
[Translation]
I move:
That Bill C-l 0 be amended in clause 115, on page 66, by deleting lines 23 to 25.
[English]
The bill as written would allow the Governor-in-Council, the cabinet, by order-in-council, to add or delete — obviously the more concerning element is to add — references to an offence to Schedule I, and Schedule I is one of the grounds on which you can be denied ever eligibility for a record suspension or pardons. It seems to us that this is a rather sweeping power to give to the government — sweeping not to say potentially arbitrary. There are other mechanisms that can be used. Normally, if you are doing something as serious as defining an offence for which no record may ever be suspended, that is, for which no pardon may ever be granted, you would not do it by something as arbitrary as an order-in-council. Ideally, you would do it by passing a law. At the very least, you should do it by means of the full regulatory process where consultation is necessary and advance publication and all those good things. A simple order-in-council does not seem desirable.
The Chair: Colleagues, are there any comments or responses?
Since there is no further debate, is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Based upon your responses, I declare the proposed amendment defeated.
Shall clause 115 now carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Colleagues, shall clause 131 carry?
Some Hon. Senators: Agreed.
Senator Fraser: If I may, the amendment that you have before you would have been consequential to the one that colleagues have just decided to defeat.
The Chair: So clause 131 is carried.
Shall clause 132 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 136 carry?
[Translation]
Senator Fraser: I move:
That Bill C-10 be amended in clause 136, on page 75,
(a) by replacing line 18 with the following:
"serving their sentence; or"; and
(b) by replacing lines 21 to 23 with the following:
"enforcement agency".
[English]
This amendment refers to the factors that the minister may consider in determining whether to consent to the transfer of a Canadian offender who is serving a prison sentence in another country. The bill sets out a very long list of elements that the minister may consider, but the very last catch-all paragraph in that very long list says that the minister may consider any other factor that the minister considers relevant, given the great length and detail of factors already established that the minister may take into consideration.
It seems to us that this is a loophole too far to say the minister can also take into account anything else. Therefore, we would propose to delete that final paragraph and stick with the list — I repeat, the very long list, which I shall not read out — of factors that are already available for the minister to consider. The list seems to us to be complete, indeed exhaustive.
The Chair: Thank you, Senator Fraser.
Colleagues, is there any comment or debate concerning Senator Fraser's proposed amendment?
Senator Angus: I would oppose this amendment for the following reasons: First, I would not deign to suggest I am quoting Senator Fraser verbatim, but in paraphrasing something she said earlier to the effect that when drafting laws, the draftspersons cannot be expected to envisage every eventuality — this was about an hour and 27 minutes ago — the honourable senator, of course, does understand that when you list a lot of items like this, you risk the terrible situation of inclusio unius est exclusio alterius, meaning that when you specify a number of points, you risk leaving out others. In fact, there is a rule of statutory interpretation to that effect.
Therefore, I submit, with respect, that the phrase "any other factor that the minister considers relevant" is extremely important in this case. The list, which you described as "very long," actually is that not long. However, it is designed, I think we were told — and it certainly flows — as a means of outlining the types of things that the minister should use his discretion on.
We have heard, and I have had personal experience, where the minister has a big pile of these requests on his or her desk for transfer, and some have been attacked when they have been turned down in the courts. It has become a problem in the administration of this part of our law. We were told that, I think, by Minister Toews and by some of the officials.
The idea here is that it is an administrative thing as much as anything, because there was always discretion. This is to outline the sorts of things the minister should keep in mind. It says "whether, in his opinion," et cetera. I think either you do not go along with this section at all; you leave it the way it is today —
Senator Fraser: Sold.
Senator Angus: — or you say, "Look, this an important thing for Canadians to be able to get back here to serve the balance of their sentences in Canadian institutions," or not, depending on the circumstances. If one were the minister, I think one would understand we need this tool to know what the intention is of the law.
I would oppose the amendment on these grounds and hope that we would go ahead with the way it has been proposed to us in Bill C-10.
Senator Fraser: With great respect for my learned colleague, whose Latin far exceeds mine, we are all aware that a great deal of the discussion about this bill has involved this repeated use of the phrase "in the minister's opinion." The list of factors that the minister may consider includes eleven items and three sub-items. They range from whether an offender's return to Canada will constitute a threat to the security of Canada, all the way down to the offender's health.
On our side, we share the widespread concern expressed by, among many others, the Canadian Civil Liberties Association. We share the concern about the wide latitude given to the minister through this repeated phrase, "in the minister's opinion," but it is there. Rather than propose an amendment to delete all of these things, we propose at least to put a very slight limit on what the minister may do if the minister sees fit. It is fairly apparent to at least some of us that this list giving the minister discretion is in response to a number of court decisions that have taken the minister to task for some possibly arbitrary decisions in the recent past; these are recent decisions. This bill will give the minister wide latitude to do just about anything, but we do think there ought to be at least this one last little limit on just how much a minister can do.
Senator Angus: As you said yourself, the list appears to you to be exhaustive. However, the reality is, for the reasons you have explained earlier this morning, it may well not be. In an evolving society like ours is today, in an open society, with all the different things that are so incredibly different even in 2012 than they were a year ago, I submit that if we really want to give the minister a more flexible and comprehensive framework within which to consider these applications for transfer, I think you would be really tying his or her hands by having that clause taken out. I would insist that we leave it in.
Senator Jaffer: Senator Angus, I understand exactly what you are saying about giving the minister discretion. Earlier on, Senator Lang spoke about giving the police discretion, and yet the persons to whom we are supposed to be giving discretion, the judges, we are taking it away. We are talking from both sides of our mouth, saying, "Give the minister discretion, but take it away from the judges."
We are saying here that the courts have really come down harshly on the minister about exercising discretion. There have been many cases on this issue. One of the officials said that this was to take into account the court decisions that have come down and give the minister more discretion.
I am at a loss. You give the minister more discretion, the police more discretion, Crown counsel more discretion, but take you it away from the judges. I am at a loss on that kind of thinking.
The Chair: I believe that concludes the debate regarding clause 136.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: Hearing your response, I declare the amendment defeated.
Some Hon. Senators: On division.
The Chair: On division.
Shall clause 136 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: On division.
Clause 136, of course, was in respect of the International Transfer of Offenders Act. The next clause we have to consider similarly concerns that topic.
Shall clause 166 carry?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, will now consider clause 167 but, before doing so, there are a number of clauses that similarly concern youth criminal justice, which is the topic that we will now be addressing.
Colleagues, shall clause 167 carry?
Some Hon. Senators: Agreed.
Senator Fraser: I have an amendment to move.
I move:
That Bill C-10 be amended in clause 167, on page 87,
(a) by replacing line 22 with the following:
"that includes as an element the intentional causing of"; and
(b) by replacing line 29 with the following:
"likelihood of causing bodily harm and that includes wilfulness as an element of the offence.".
This is a slight refinement of the definition proposed for the phrase "violent offence." The phrase "violent offence" occurs numerous times in this bill's proposed amendments to the Youth Criminal Justice Act. The difficulty with the definition, as it now stands in the bill, is, reading from the bill:
"violent offence" means
(a) an offence committed by a young person that includes as an element the causing of bodily harm;
We are proposing that we make it clear in that definition that the causing of bodily harm must have been intentional or, if you go further down in the definition, that the young person in question would have been aware of the likelihood of causing bodily harm and would have wilfully continued in that conduct.
What we aim to do here is avoid capturing in the definition of "violent offence," which has consequences in terms of punishment and various other elements in this bill and to ensure that "violent offence" does not include things that happen genuinely by accident.
I used, in a hearing earlier, the example of a young person — you would have to be young to do this, but they do — who is throwing snowballs at buses and when one snowball is in the air heading to the bus, the bus moves, and the snowball ends up hitting a little old lady, like myself, who is just standing on the sidewalk just behind the bus. Maybe that does her a bit of damage, maybe she gets cut on her head. However, that young person was not setting out to do bodily harm to the pedestrian and should not be treated in law as if there was an intention to cause bodily harm.
I hope I have been able to explain the point of this amendment.
The Chair: Thank you, Senator Fraser.
Are there any comments?
Senator Runciman: Senator Fraser did not use the term "watering down" but that, in effect, is what is happening with respect to this amendment and the interpretation of "serious violent offence."
Senator Fraser: Not "serious violent offence," just "violent offence."
Senator Runciman: Yes. This really plays into the pretrial detention issue and publication bans, which are components of this legislation.
From our perspective, Senator Fraser, it is not clear that these changes would end up capturing the reckless, out-of- control behaviour that the definition was intended to capture. The results of reckless driving can be tragic, but is it the intentional causing of bodily harm?
Justice Nunn, in his report, spoke to the need for a broader definition of "violent offence," and that is reflected in the legislation. That is expanding the definition to include offences in which:
. . . a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm.
This captures reckless behaviour and is really necessary to protect the public.
Senator Fraser: With respect, as written, I do not think it does capture reckless behaviour, and Justice Nunn agreed when he was here before us.
What it captures is everything that causes or is likely to cause bodily harm, whether or not the young person intended to cause bodily harm or could reasonably be expected to understand that the act was creating a serious risk or a risk of bodily harm.
We agree that violent offences need to be taken seriously. I want to avoid the word "serious" because that comes under a different definition, but they matter; they should not be passed over lightly. We should not, however, be capturing conduct that was, on the plain face of it, comparatively innocent and ended up having genuinely unforeseen and unforeseeable consequences.
Senator Runciman: We disagree, and we are talking about tragic results here.
Senator Fraser: Possibly tragic, possibly not so tragic.
Senator Runciman: Yes, but Justice Nunn looked at the limitations that were afforded the courts with respect to dealing with these situations. He has made his recommendations, and I believe this legislation is following those.
Senator Fraser: I have a further amendment later which may address that.
The Chair: I want to ensure I understand. You said something in response to Senator Runciman. You said that you believe that it, I thought you were referring to the wording in the bill at present, would not capture reckless behaviour, or did I misunderstand you?
Senator Fraser: It would capture reckless behaviour but the definition of "violent offence," as it is now in the bill, would not exclude behaviour that, by its very nature, was not reckless.
Throwing a snowball is the kind of thing young folks do, whereas if you put a big rock in the middle of your snowball and aim it at someone, that is pretty reckless and would certainly be captured by this.
What we are trying to do is ensure that we capture what we all believe to be genuinely violent offences and not, to pick up a reference from earlier, do the dragnet fishing where you are scooping up people you did not intend to scoop up.
The Chair: Just so I understand, within your amendment, it would include this reference to intentional causing.
Senator Fraser: Yes.
The Chair: Using reckless behaviour as an example, reckless use of an automobile, speeding at great speeds down the street, there is no intention to harm anyone, but completely reckless and out of control; the offender loses control of the car and causes bodily injury.
In that case, there may not have been an intention of causing it, but the behaviour was so outrageous and reckless that it resulted in it.
Senator Fraser: That would still be captured under subparagraph (c) of the definition of a violent offence, even as amended by us.
The Chair: It is this introduction of the concept of intentional causing. It has to be in the mind of the offender before committing the offence that the intention was there.
Senator Fraser: Under the definition of (c), what would be intentional is the reckless speeding down the street. Anyone, even a 12 year-old, knows that if you are speeding down a street, you are quite likely to do some damage. That would be captured.
The Chair: It would not be within your amendment.
Senator Fraser: Yes, it is within my amendment.
The Chair: That is fine.
Paula Kingston, senior counsel from youth criminal justice has listened to this and is prepared to offer some comment. Why do we not do that now, and then Senator Cowan may want to respond.
We have joining us at the table Paula Kingston, Senior Counsel, Youth Justice and Strategic Initiatives Section.
Ms. Kingston, you have heard the discussion. Is there any comment you might make that would be useful to us?
Paula Kingston, Senior Counsel, Youth Justice and Strategic Initiatives Section, Department of Justice Canada: Yes. These provisions are perhaps a little confusing because there are changes to the number of definitions of offences in the bill.
I would like to point out that the new definition of serious offence is the one that applies to pretrial detention, but that is not what we are talking about here.
The definition of violent offence comes into play with the publication provisions on lifting the publication ban and it also comes in as one of the criteria for sending a young person to custody.
When you look at the definition of violent offence, there are three parts; one, where an offence is committed that includes as an element the causing of bodily harm. There is another one where there is an attempt or a threat to commit an offence that is referred to in (a), so that (a) there has been bodily harm; (b) there is a threat; and (c) is an offence in the commission of which a young person endangers the life or safety of another person by creating a substantial likelihood of causing bodily harm. In (c) as well it is an endangerment offence; there is no actual bodily harm caused. I wanted to make those clarifications.
The Chair: Thank you for that.
Senator Cowan: It is just that. It is (a), (b) or (c). The situation you were describing I think would be caught by (c).
Ms. Kingston: It would still be caught by (c).
Senator Cowan: It would still be caught by (c). The amendment proposed by Senator Fraser is (a).
Senator Fraser: It is also to (c). I included wilful.
Senator Cowan: With wilful, that is in (c).
The Chair: Not to get into debate, but (c) does not cover the actual causing of bodily harm but that there is a substantial likelihood; (a) does cover, and the example I gave is where it does actually result in bodily harm and I would suggest to you would be captured by (a).
Senator Jaffer: Ms. Kingston, in the presentation that UNICEF made to us, they said that this clause would run contrary to 37(2) of the Convention on the Rights of the Child when it comes to detention or imprisonment of a youth being a measure of last resort.
I know you have done an assessment on the convention. Is it your opinion that it meets the convention requirement?
Ms. Kingston: First, this definition of violent offence is not the one that applies to pretrial detention. That is serious offence.
Senator Jaffer: I am not talking about pretrial. I am just talking about the violent offence.
Ms. Kingston: Yes. In terms of whether or not it is the last resort, all those provisions currently in the Youth Criminal Justice Act are still there and have not been changed. There are a number of provisions that say pretrial detention and a custody sentence should only be used as a last resort.
Senator Jaffer: Does it meet the convention's requirement?
Ms. Kingston: Yes, it does.
Senator Jaffer: We mentioned Justice Nunn a number of times. When he was here he said:
. . . when you say "committed a number of violent offences," you have to be sure that what happened falls into the definition of a "violent offence." It is hard to get the courts to go along that some of these are violent offences. It is theft of a car, and it may have been violently operated and so on, but it does not ring the bell as a violent offence.
If we are quoting Justice Nunn, we should quote what he said here as well.
The Chair: I believe that concludes our debate concerning Senator Fraser's proposed amendment to clause 167.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Based on your responses, I declare the amendment defeated, on division.
Shall clause 167 carry?
Some Hon. Senators: Yes.
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 168 carry?
[Translation]
Senator Fraser: Mr. Chair, I wish to move an amendment,
That Bill C-10 be amended in clause 168, on page 87 —
[English]
The Chair: I am sorry to interrupt Senator Fraser. From what I have seen, there will be further amendments under the Youth Criminal Justice Act.
Senator Fraser, I will turn the floor over to you.
Senator Fraser: Thank you very much. I will just start again rather than pick up in midsentence.
[Translation]
I move:
That Bill C-10 be amended in clause 168,
(a) on page 87, by replacing
(i) line 33 with the following:
"intended to ensure the long-term protection of the public by",
(ii) line 35, in the French version, with the following:
" (i) obligeant les adolescents à répondre de", and
(iii) line 39, in the French version, with the following:
"(ii) favorisant la réadaptation et la réin-"; and
(b) on page 88, by replacing line 1, in the French version, with the following:
"(iii) contribuant à la prévention du crime".
[English]
These amendments reflect suggestions by numerous witnesses, notably the government of Quebec. The key element is really the first proposal here, which is to ensure the long-term protection of the public. That would be the purpose of the youth criminal justice system.
At the moment, the bill as written says the youth criminal justice system is intended to protect the public. In contrast to the bill, the present law refers to the long-term protection of the public. We are proposing to restore that language in recognition of the fact, as confirmed by the overwhelming bulk of the evidence and research that we have heard and had made available to us, that rehabilitation and all the other principles of the youth criminal justice system really will provide long-term protection of the public if properly administered, and that simply locking people up does very little for the long- term protection of the public.
The object of the criminal justice system, whether for adults or young people, is ultimately to protect the public. In our view, the phrase "long-term protection" is a much better reflection of what we are trying to do than simply "protect," which can be too easily interpreted to mean "lock people up and throw away the key."
Senator Runciman: It might be noteworthy that the senator proposes them in French because I think it could be called a Quebec amendment. She mentioned numerous witnesses, and I personally do not recall numerous witnesses calling for this change, but perhaps she can refresh my memory.
I raised it with a number of witnesses, including a former Minister of Justice from the province of Quebec, because I was having difficulty getting my head around the concerns here. I believe the change in terminology encompasses both short and long-term protection of the public. This is consistent with the recommendation of the Nunn commission, Mr. Chairman.
The party obviously wants to go back to the old definition, which I think tends to give short shrift to short-term protection of the public. The definition that is in Bill C-10 covers all circumstances and in no way downplays the importance of rehabilitation.
Senator Fraser: Just to clarify, I was not suggesting that we had had mountains and volumes of evidence calling specifically for this change. I was referring to the overwhelming body of evidence we have that the youth criminal justice system in particular functions best in the interests of the child, and it is our legal obligation to function in the best interests of the child, but also in the interests of society if what we look at is that long-term perspective. Bring the kids back, save them, if you will, and they can go on to have long and productive and useful lives as citizens of the country. I was not suggesting that 500 witnesses had called upon us to make this precise change. This precise change has been suggested by a number of people, notably the government of Quebec, but not only. I do not want to put words in others' mouths any more than I would want them to put them in mine.
Senator Runciman: I do not think the bill as currently worded disabuses that concept with respect to long-term protection. If you look at the federal-provincial-territorial conferences, I think that virtually every other jurisdiction is supportive of this element in the legislation. I think predominantly it is a concern of the Quebec government, and I would not say the Quebec population at large, and perhaps my colleagues can speak briefly to that particular element. When I posed this question on a number of occasions, the views from the witnesses that I asked it of were not sharing the Quebec government's concern.
Senator Fraser: It did depend on who one asked, did it not? I seem to recall putting a similar question myself to other witnesses. Perhaps because I am a Quebecer I do view the views of the government of Quebec with great respect but do not just click my heels and say, "Aye aye," or "Oui, monsieur." I believe this is a useful and constructive amendment.
The Chair: Senator Runciman, just to your comments, your thought would be that both short-term and long-term protection of the public is the goal and the purpose of these amendments.
Senator Runciman: We had witnesses testify to that as well, chair.
The Chair: Colleagues, I believe that concludes our debate regarding Senator Fraser's proposed amendment.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Colleagues, based upon your responses, I would declare the amendment defeated.
Senator Cowan: On division.
Senator Fraser: On division.
The Chair: On division.
Shall clause 168 carry?
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 169 carry?
Senator Fraser: I have an amendment, chair.
The Chair: Yes, Senator Fraser?
Senator Fraser: I move:
That Bill C-10 be amended in clause 169, on page 88,
(a) by replacing lines 20 and 21 with the following:
"(i) a serious offence or a violent offence, or
(ii) an offence other than a serious offence or a violent offence,";
(b) by replacing line 37 with the following:
"tody, commit a serious offence or a violent offence, or"; and
(c) by replacing line 39 with the following:
"has been charged with a serious offence or a violent offence".
Colleagues, this has to do with the provision in this bill that was proposed as a response to what you could argue was the core recommendation of the Nunn commission, namely that it ought to be possible to hold young persons in pretrial, pre-sentencing custody under certain circumstances.
The case that led to the creation of the Nunn commission involved a long series of charges of car theft and reckless driving culminating in the death of an innocent woman. I think there is wide agreement that there should be provision for the pretrial detention of young persons in certain carefully controlled circumstances. I think that, by and large, the controls that are set out in this portion of Bill C-10 should assure that the young people who are held in pretrial custody will not be unjustly held. I think the safeguards built in would tend to guard against the inappropriate detention of young people.
However, you may recall that the very interesting testimony by Ms. Marie-Pierre Blouin, the legal aid lawyer from Longueuil in Quebec. Ms. Blouin pointed out to us that this bill as now written probably will not capture all the young people that we do think should be held in pretrial custody because the first criterion is that the young person should have been charged with a serious offence or have a long history of things. However, in this bill, the definition of a serious offence is an indictable offence for which the maximum punishment is imprisonment for five years or more. As Ms. Blouin pointed out to us, some offences that can be — the word that comes to mind is "offensive" — dangerous might not be or would not be captured by simply calling for a serious offence.
Therefore, it seemed to us appropriate to say the young person should have been charged with a serious offence or a violent offence. Clearly we are more concerned actually with violence or the potential for violence than we are with non-violent but serious offences when we are talking about pretrial detention. That is why we were proposing to include the reference to a serious offence or a violent offence.
However, this bill, as was discussed a little earlier, has a remarkably broad and sweeping definition of what counts as a violent offence — excessively broad and sweeping, in my view. It would capture conduct that was never imagined, let alone intended, to have violent or the potential for violent consequences.
Therefore, with considerable regret and in the knowledge that we will be passing inadequate and in many ways inappropriate law, but to avoid an even greater inadequacy, potential injustice to young persons, I withdraw this amendment.
The Chair: Thank you, Senator Fraser.
Shall clause 169 carry?
Some Hon. Senators: Yes.
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 172 carry?
Some Hon. Senators: Yes.
Senator Fraser: I would like to have a roll call on that clause, chair, please.
The Chair: On 172?
Senator Fraser: Yes.
The Chair: Yes.
Ms. Anwar: The Honourable Senator Wallace?
Senator Wallace: Yes.
Ms. Anwar: The Honourable Senator Angus?
Senator Angus: Yes.
Ms. Anwar: The Honourable Senator Baker?
Senator Baker: No.
[Translation]
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: Yes.
Ms. Anwar: The Honourable Senator Chaput.
Senator Chaput: No.
[English]
Ms. Anwar: The Honourable Senator Cowan?
Senator Cowan: No.
[Translation]
Ms. Anwar: The Honourable Senator Dagenais.
Senator Dagenais: Yes.
[English]
Ms. Anwar: The Honourable Senator Fraser.
Senator Fraser: No.
Ms. Anwar: The Honourable Senator Frum.
Senator Frum: Yes.
Ms. Anwar: The Honourable Senator Lang?
Senator Lang: Yes.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: Yes.
Ms. Anwar: Yeas, seven; nays, four.
The Chair: Carried.
Shall clause 185 carry?
Senator Fraser: Mr. Chairman, I move:
That Bill C-10 be amended in clause 185, on page 94, by replacing line 17 with the following:
"has attained the age of 14 years and has been found guilty of a violent offence, the".
Bill C-10, as it now stands, would allow the court to permit the publication of the identity of a person as young as 12, a person who has been found guilty of a violent offence, and we have just discussed that very broad offence, the definition of "violent offence."
The way the youth criminal justice system has worked until now has had the effect of saying that publication bans could be lifted only after a young offender reached the age of 14. Even that, we have heard testimony, can be considered to be a very young age because of the potential for lifelong damage to that young person's reputation, self- esteem. We have heard testimony about the likelihood of things like bullying in school, and we know that bullying is the kind of problem that can lead, too often, even to suicide of the young person.
When it is a 12 year old who is subject to that notoriety, the damage clearly can be very substantial. I do not see how we can be doing our legal duty to respect the best interests of the child, which Mr. Justice Nunn so emphasized in his testimony to us, if we permit the publication of young offenders' names at the age of 12. Therefore, this amendment would say that the young person would have to have attained the age of 14 before his or her identity could be published.
The Chair: Thank you, senator.
Senator Runciman: I think it is important to note here that this is expanding judicial discretion. We heard Senator Jaffer here earlier today expressing concern about loss of judicial discretion and saying she was at a loss to understand. Here is a situation where the government is moving to expand judicial discretion. This will be totally up to the judge. It is only to be used, if necessary, to protect the public. I think we can trust the judges to use this new power only when public safety is at risk. The clause is designed to protect the public, especially children, our own children. I cannot support Senator Fraser's amendment.
The Chair: Colleagues, it appears — Senator Fraser? Yes; take your time.
Senator Fraser: It would be more appropriate, if the public's safety were at risk, to order the young person to be held in custody for, one hopes, treatment. The point is that young people can change, and the younger the person, the greater the possibility for change, but also the greater the possibility for lasting damage to that young person.
This change was recommended to us by people from the Privacy Commissioner to the Canadian Council of Child Advocates. In essence, it does not quite restore the status quo in the present youth criminal justice system, but it takes us back a bit toward what has been the status quo and what has, by all accounts that I am aware of, been an effective piece of law.
Senator Runciman: We did have testimony in terms of the utilization of this element of legislation. It would be extremely rare, extraordinary circumstances. Again, it is increased judicial discretion. This is an instance where we have to indicate our trust in those decisions.
The Chair: Colleagues, I believe that concludes our debate regarding Senator Fraser's proposed amendment to clause 185.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: The motion in amendment — I conclude with the words "in amendment." Obviously, there is some confusion. Maybe I was not clear in what I said. I will repeat it.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Baker: Absolutely.
The Chair: Colleagues, hearing your responses, I declare the amendment defeated.
Shall clause 185 carry?
Senator Fraser: I have a further amendment to propose, chair.
The Chair: All right.
[Translation]
Senator Fraser: I move:
That Bill C-10 be amended in clause 185, on page 94, by adding after line 36 the following:
"(5) The lieutenant governor in council of a province may, by order, exempt the province from the application of this section or fix an age greater than 14 years for the purpose of its application.".
[English]
This is still in connection with publication bans and the possibility of lifting the ban on the publication of a young offender's identity. This would permit individual provinces to set a higher age as a minimum below which publication bans could not be lifted. The model here is the existing provision in the act for the imposition of adult sentences, where the lower limit is normally 14 years but where individual provinces may, if they choose, set a higher limit, from 14 to 16. That is the model, and what it does is respect the fact that we are a federation; that, within the great, broad system of Canadian law, there will be different standards of judgment about what is and is not socially or morally appropriate from one part of the country to another. As well, it would allow sufficient flexibility for different provinces to set the standards that they believe most appropriate for their society, their community and their circumstances.
The Chair: Thank you, senator.
Senator Runciman: Mr. Chair, I spoke to the issue of increased judicial discretion in the last amendment, so I will not rehash that, but this clause is about protecting children and the public in all places.
The Chair: Two things, senator. I thought, when you introduced the amendment — maybe I just misunderstood what you said — I thought you referred to that this amendment would be applicable to page 95.
Senator Fraser: No. I think I said 94.
The Chair: Perhaps I misheard you.
Senator Fraser: I was reading in French, and it has been a long day following on a long week. I may have misspoken.
The Chair: I just wanted to clarify that it is page 94.
Senator Fraser: It is page 94, after line 37.
The Chair: Just to further clarify that the consequence of your amendment would be to create different provisions of the Criminal Code, significant provisions of the Criminal Code —
Senator Fraser: No, the Youth Criminal Justice Act.
The Chair: Sorry, the Youth Criminal Justice Act — applying in different provinces. There would be different rules, different standards, in different provinces, as opposed to one standard for all provinces.
Senator Fraser: This exists now. A similar provision exists now in the act and will be continued in the act for the imposition of adult sentences. That is one of the differences between Canada's approach to youth criminal justice and its approach to the Criminal Code. The Criminal Code is, of course, unchanging across the country. However, we decided some years ago that it was appropriate in the case of young offenders to allow a rather broader measure of discretion to provinces because of the significant differences in philosophy about youth criminal justice from one part of the country to the other.
The Chair: Understood. Thank you for that.
Colleagues, I believe that concludes the debate on Senator Fraser's motion. Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: No.
Some Hon. Senators: Agreed.
The Chair: Hearing your responses, I would declare the amendment defeated, on division.
Shall clause 185 carry?
Senator Fraser: On division.
The Chair: Carried, on division.
Shall clause 186 carry?
Senator Fraser: Let me refresh my memory, chair, if you do not mind. Yes, agreed.
The Chair: Carried?
Senator Cowan: On division.
Senator Fraser: Clause 186 is fine. In fact, it is good. There are some good things in this bill.
The Chair: It took us a while to find it.
Senator Fraser: I have a short list, the fingers of one hand.
The Chair: We have been at it for seven hours.
We will now move to a clause that relates to the Immigration and Refugee Protection Act, and that would be clause 206.
Shall clause 206 carry?
Senator Fraser: On division.
The Chair: Carried, on division.
That was the only clause we had in respect to the Immigration and Refugee Protection Act. We are now down to the schedule.
Shall the schedule carry?
Hon. Senators: Agreed.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Senator Fraser: On division.
The Chair: Carried, on division.
Shall the title carry?
Senator Fraser: Agreed.
The Chair: Carried.
Shall the bill, as amended, carry?
Senator Fraser: Could we have a roll call on that, please, chair?
Ms. Anwar: The Honourable Senator Wallace.
Senator Wallace: Yes.
Ms. Anwar: The Honourable Senator Angus.
Senator Angus: Yes.
Ms. Anwar: The Honourable Senator Baker, P.C.
Senator Baker: No.
[Translation]
Ms. Anwar: The Honourable Senator Boisvenu.
Senator Boisvenu: Yes.
Ms. Anwar: The Honourable Senator Chaput.
Senator Chaput: No.
[English]
Ms. Anwar: The Honourable Senator Cowan.
Senator Cowan: No.
[Translation]
Ms. Anwar: The Honourable Senator Dagenais.
Senator Dagenais: Yes.
[English]
Ms. Anwar: The Honourable Senator Fraser.
Senator Fraser: No.
Ms. Anwar: The Honourable Senator Frum.
Senator Frum: Yes.
Ms. Anwar: The Honourable Senator Jaffer.
Senator Jaffer: No.
Ms. Anwar: The Honourable Senator Lang.
Senator Lang: Yes.
Ms. Anwar: The Honourable Senator Runciman.
Senator Runciman: Yes.
Ms. Anwar: Yeas, 7; nays, 5.
The Chair: We declare the bill, as amended, carried.
Does the committee authorize the law clerk to renumber clauses to reflect clauses that have been amended from the bill, with any cross-references to be numbered accordingly?
Hon. Senators: Agreed.
The Chair: Does the committee wish to discuss appending observations to the report?
Hon. Senators: Yes.
The Chair: Perhaps before we do, if we could suspend for 15 or 20 minutes, and then we will consider observations.
Senator Fraser: Would that be in camera? Normally it is.
The Chair: Yes, we will do that in camera, and supporting staff for each of the senators can remain in the room during that discussion.
(The committee continued in camera.)
(The committee resumed in public.)
The Chair: The motion, colleagues, that is now before us is as follows:
That the Subcommittee on Agenda and Procedure be empowered to approve the final version of the observations being appended to the report, taking into consideration today's discussion and any necessary editorial, grammatical or translational changes as required.
Is it agreed?
Hon. Senators: Agreed.
The Chair: Carried.
Is it agreed that this bill be reported, as amended and with observations, to the Senate?
Hon. Senators: Agreed.
The Chair: Carried.
Colleagues, that concludes our committee work regarding Bill C-10. At this point, we will adjourn the meeting.
(The committee adjourned.)