57 Elizabeth II, A.D. 2008, Canada

Journals of the Senate

2nd Session, 39th Parliament


Issue 36 - Appendix

Wednesday, February 27, 2008
1:30 p.m.

The Honourable Noël A. Kinsella, Speaker


Wednesday, February 27, 2008

The Standing Senate Committee on Legal and Constitutional Affairs has the honour to present its

EIGHTH REPORT

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 report.

Respectfully submitted,

JOAN FRASER

Chair


OBSERVATIONS
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 of C2.

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 health services.

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 extent;

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 every case;

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 groups.

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 offenders.

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.

Other Concerns:

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.