The Standing Senate Committee on Legal and Constitutional Affairs has the
honour to present its
Your committee, to which was referred Bill C2, An Act to amend the
Criminal Code and to make consequential amendments to other Acts, has, in
obedience to the order of reference of Wednesday, December 12, 2007, examined
the said Bill and now reports the same without amendments.
Your committee has also made certain observations, which are appended to this
to the Eighth Report of the Standing Senate Committee on
Legal and Constitutional Affairs
Providing police and Crown Attorneys with the tools needed to ensure that
Canadians are as safe from violent crime as possible is a worthy objective. Your
committee does, however, have some serious concerns with several of the details
Some witnesses noted that some provisions of Bill C2 will be open to
challenges under the Charter of Rights and Freedoms. Others raised
questions about whether there were gaps or deficiencies in the current law that
needed to be addressed by Bill C2.
One example of a question about an alleged deficiency was in the area of the
reverse onus on bail applications; existing provisions clearly permit pre-trial
detention where shown to be necessary to secure attendance in court, to protect
the safety of the public, or to maintain confidence in the administration of
justice having regard to all the circumstances of the case.
We have heard that the reality is that people charged with serious offences
involving firearms are most frequently detained at first instance or upon
review, so it is difficult to envision where the new provisions would apply.
While the Supreme Court in R. v. Pearson upheld the constitutional
validity of the reverse onus for offences involving narcotics, the Court noted
that this narrow class of offences shared certain characteristics including the
systematic, organized and commercially lucrative nature of the offences in
question. The added offences in Bill C2 do not necessarily share these
significant common characteristics.
Some witnesses had reservations about the raising of the age of sexual
consent from 14 to 16. Many young persons are now and will continue to be
sexually active. It is in their best interests to have access to proper health
care and sexual health services. Witnesses expressed concern that, because of
certain mandatory abuse reporting laws, doctors, nurses, sexual health
counselors and social workers may be required to report their ``illegal
activities'', thus breaking confidentiality with young people who confide in
them. Because of this, young people may be much less likely to seek out sexual
Some witnesses were concerned by the reverse onus provision for dangerous
offender designation. The Crown would be relieved of the burden of proving the
dangerous offender criteria for the third primary designated offence. Instead,
the Crown would only have to prove the record of convictions for two prior
primary designated offences with sentences of two years or more each, plus the
fact that the third offence was a primary designated offence that would warrant
a sentence of imprisonment of two years or more. This could result in someone
being declared a dangerous offender despite the absence of evidence that they
were dangerous or a risk to re-offend, and could lead to a Charter challenge.
Such a declaration could be made following a guilty plea made by an offender who
did not understand that a conviction could lead to a dangerous offender
designation. The committee was told that aboriginal offenders in particular may
not understand the full implication of these pleas. This could also have a
differential impact upon accused persons who do not have access to counsel who
are able to explain the implications of guilty pleas.
Some witnesses suggested that the permitted video recording of physical
co-ordination tests set out in new subsection 254(2.1) of the Criminal Code
should be made mandatory. This would provide the best evidence of the test
results and reduce the amount of legal contestation.
A concern was raised that even if an accused person establishes beyond a
reasonable doubt that he did not consume alcohol and that the breath-testing
machine was defective, he will still be convicted if he cannot establish that
the false test result is due to the malfunctioning of the equipment, a causal
link which is impossible to establish without having access to the equipment to
submit it to scientific tests.
The committee is aware of the fact that Canada is entering into uncharted
territory in testing for impairment caused by drugs other than alcohol. The
evidence presented to the committee showed that there is no machine, akin to a
breathalyzer for alcohol, which can measure accurately the amount of a drug that
will cause impairment. Furthermore, there are hundreds of drugs, both legal and
illegal, consumed by Canadians that have a different impact on an individual's
ability to drive. It is hoped that efforts to detect and punish drug-impaired
driving will reduce it, as was the case with alcohol. The fact remains, however,
that for the vast majority of drugs no scientific data exist to determine the
levels of consumption at which impairment actually occurs. It will be several
years before such levels are determined for even the most common illegal drugs.
In addition there are still relatively few - only 214 - qualified Drug
Recognition Experts in Canada.
While the committee recognizes and supports the deterrent value of the
criminal law, many witnesses spoke of the need for a comprehensive long-term
effort in such areas as impaired driving that incorporates both deterrent
legislation and public awareness and education campaigns. Such an effort,
combined with comprehensive treatment and drug and alcohol cessation programs
would constitute the most effective policy in attempting to reduce the number of
lives lost and injuries suffered in accidents involving impaired drivers. Given
the shared jurisdiction over areas such as health and education, a coordinated
effort by the federal and provincial governments will be required.
A number of witnesses strongly urged the maintenance of at least some level
of judicial discretion when it comes to the imposition of sentences. The
exercise of judicial discretion is the best means of weighing the relevant
principles in determining sentence in order to impose a just sanction. Most
jurisdictions that do have mandatory minimums also allow for permissible
departure from these minimums in extraordinary circumstances if the judge deems
the departure appropriate. We are concerned by a number of aspects of mandatory
minimum sentencing, including:
The effect of mandatory minimums on aboriginal and other minorities in
Canada, who are already greatly over-represented in prison;
The fact that Criminal Code section 718.2(e) requires that the
particular situation of aboriginal offenders be considered at sentencing, yet
mandatory minimum sentences require that this principle be ignored to a certain
The shifting of discretion in the judicial process from the judiciary to the
police and Crown Attorneys, who decide what charges are laid and how they are
pursued, and who are not subject to public scrutiny or appeal to a higher court;
The lack of proportionality in sentencing. As set out in section 718.1 of the
Criminal Code, a sentence should be proportionate to the gravity of the
offence and the degree of responsibility of the offender. Mandatory minimum
penalties deny judges the chance to ensure proportionality of sentencing in
The fact that mandatory minimum sentences focus on denunciation and
deterrence to the exclusion of other legitimate sentencing principles;
The fact that money spent on incarcerating large numbers of people might be
better directed elsewhere.
We note with concern the lack of empirical studies demonstrating that
mandatory minimum penalties have proven to be effective in deterring crime or,
more generally, in reducing the incidence of crime. In particular, no Canadian
data were put before the committee to prove that the introduction of mandatory
minimum sentences for certain offences involving a firearm in the mid-1990s has
had a measurable impact on these offences.
Some witnesses noted that Bill C2 sets out different mandatory minimum
penalties depending on the kind of firearm that was used in the commission of an
offence. While we can understand this distinction for offences such as weapons
trafficking, there is no discernible reason to impose a different mandatory
minimum penalty for offences such as attempted murder or sexual assault with a
weapon, depending on whether the accused used a handgun (higher penalty) as
opposed to a shotgun (lower penalty). It seems unlikely that a violent crime
victim would feel less victimized because a shotgun was used against her instead
of a handgun, or should accept that the perpetrator receives a lesser sentence.
It is also crucial to understand that the stated goal of Bill C2, to reduce
crime, cannot be attained without significant supporting policies, measures and
resources. One of the most important of these is the provision of rehabilitation
programs in prisons, including vocational training. Your committee heard
evidence that even today, there is a worrisome lack of such programs in many
institutions; while the prison population has risen in recent years, the budget
for such programs has actually fallen 26%. In maximum security institutions, few
or no programs are available. It is agreed by all witnesses that the
implementation of Bill C2 will increase the prison population again. Simply
building new prison cells, while vital, is not enough. If appropriate programs
are not provided for inmates, the risk increases that they will become
recidivists after release.
Nowhere is the need for specialized programs more acute than in the case of
aboriginal offenders, who make up a grossly disproportionate number of Canada's
prison population and of those designated as dangerous offenders – in each case,
about 20%. This results from problems of great complexity, but addressing these
problems is both a moral and a common sense imperative.
Your committee also notes the comparative shortage of programs for other
minority groups, particularly visible minorities, in the correctional system. As
Canada's population becomes ever more diverse, it is increasingly important to
implement specialized programs to meet the particular needs of these minority
In this regard, in the 2007 National Justice Survey, about 70% of respondents
stated that the three most important goals of sentencing were to provide
reparations for harm done to victims or to the community, to promote a sense of
responsibility or accountability in offenders, and to assist in rehabilitating
We are aware that many of the changes brought about by Bill C2 have cost
implications, not only for the federal government but for provincial governments
as well. The prison system is a shared responsibility of these two levels of
government, with any increase in the number of prisoners held on remand borne
solely by the provinces. There may be increases in costs for the police and the
courts as well, including more demands on the legal aid system. There should be
a wide-ranging consultation with the provinces and other stakeholders in order
to deal with the cost implications of implementing the provisions of Bill C2.
Your committee also notes with alarm the high level of blood-borne diseases
in Canada's prisons, including HIV/ AIDS and Hepatitis C. While efforts have
been made to eliminate injection drug use in prisons, less emphasis has been
placed on harm reduction measures to protect both inmates and staff. With an
increase in crowded prisons due to an increase in the prison population, we can
expect a magnification in the levels of blood-borne infections. It remains to be
seen how long this epidemic can be contained in our prisons.
We are concerned that Bill C2 does not address the different age of consent
to anal intercourse, as set out in section 159 of the Criminal Code. That
age is set at 18 years of age, unless the people involved are husband and wife.
This higher age of consent has been declared to be unconstitutional by the
Courts of Appeal of Ontario and Québec, amongst others. If the age of consent is
going to be raised to 16, then the same age should apply to all forms of
sexuality. Thus, section 159 of the Criminal Code should be repealed.