Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 6 - Evidence for February 7, 2008

OTTAWA, Thursday, February 7, 2008

The Senate Standing Committee on Legal and Constitutional Affairs met this day at 10:47 a.m. to study Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts.

Hon. Joan Fraser (Chair) is in the chair.


The Chair: The Senate Standing Committee on Legal and Constitutional Affairs is continuing today its study of Bill C-2, An Act to amend the Criminal Code and to make consequential amendments to other Acts.

Yesterday, we heard the testimony of the Minister of Justice and his assistants. Today, we have the pleasure of hearing from lawyers' associations. We would like to welcome, starting on my left, from the Association québécoise des avocat(e)s de la défense, Ms. Lucie Joncas, Past President, and Marco Labrie, lawyer.


Next to them, we have the Canadian Council of Criminal Defence Lawyers, Mr. André Rady, board member. On my right, we have from the Criminal Lawyers' Association, Vice-President Mr. Joseph Di Luca and Lorne Goldstein, defence counsel. Welcome to all of you. Thank you for making it to Parliament Hill on a snowy day when the driving is terrible, we are grateful to you for coming here today.

I believe that you have agreed amongst yourselves that the first statement will come from Mr. Rady, then from the Criminal Lawyers' Association, and finally from the Association québécoise des avocat(e)s de la défense. I think a useful way to proceed will be to hear all of your statements and then go to a general question period.

André Rady, Board Member, Canadian Council of Criminal Defence Lawyers: The Canadian Council of Criminal Defence Lawyers is grateful for this invitation. We have been here on many occasions throughout the years. On behalf of our organization, I wish to state that we believe the work that this committee is doing is very important. We know that you have a tremendous amount work before you concerning this bill.

For those of you who are not familiar with our organization, we are a council of 17 defence lawyers from across Canada, including the territories. We represent criminal law associations in all of the provinces. They all have one member on our association or our council. We respond to matters of national interest to the defence bar as a whole. We have been doing this since 1992 and we have appeared before this committee and other committees in the other place over the period of time.

It is our position that Bill C-2 is very important. It is important because it must be considered very carefully. We are all aware of statements that had been made recently in order to try to get this bill passed as soon as possible. Our council urges you to give this the sober second thought that this house normally does. We are an apolitical organization, so we say this from the point of view of a review of this bill and its many facets.

As you all know, Bill C-2, comprised of many other bills before the House, was prorogued last year. We now have this one bill which seems to be in a situation of take it all or none of it. That is of great concern to us because each individual part of this bill has both some good points and some points of concern to us, which I am sure will come out through the other speakers and through the questions that you will be asking us today.

We have already responded in the past on a concern about mandatory minimum sentences. It is our position that this is not an answer to the problem of the gun crime that exists in our society today; it is a prophylactic measure, in our view.

It is interesting to note that in the legislative summary prepared for Bill C-10 and then for Bill C-2, the information shows that mandatory minimum sentences are not effective. I will have more comments on that during your questions.

With respect to the dangerous offender legislation, our great concern is on the reverse onus it creates with respect to the three-strikes-and-you're-out provisions of that particular piece of legislation. It has perhaps been said that this may uphold constitutional scrutiny, but we are of the view that it will not. The first case that comes up in that regard will no doubt be challenged. Although an accused person is no longer accused when they are found convicted, and they may not have the presumption of innocence, we must consider that the dangerous offender determination is perhaps the most severe sentence that we know in our law. To place the onus on the accused person or on the convicted person on the balance of probabilities to show why he or she is not dangerous is a reverse onus that will not withstand Charter scrutiny and needs further consideration.

We are also of the view that with respect to the impaired driving legislation which comprises part of this bill, there are many concerns. There are concerns about the provisions that remove the evidence-to-the-contrary defences. As you all know, the bill provides that unless it can be shown that the actual machine is somehow defective, there is a presumption that it is okay, based on what a police officer says. We believe that is problematic. In addition, the new legislation with respect to impaired driving by drug and the designation is also problematic. There are concerns about the testing. There are concerns about what effect certain drugs may have on people and whether they in fact do impair people while driving. The legislation provides for impairment by prescription drugs as well and there are concerns how this can be detected.

We are saying that most parts of this bill require further study and consideration. If passed, this bill will survive all of the people in this room and their tenures in the Senate and all of us sitting here today. This is the Criminal Code of Canada; it affects the rights of our citizens and it is too important to have these proposed amendments passed without further scrutiny. Our council is here to be of whatever assistance it can in trying to point out the concerns with respect to this bill, how it could be improved, and the reality of the situation.

It has always been our focus that it is not just a question of getting tough on crime — I am not trying to use the political statement — we should also get smart on crime. This is not the way to do it. There are other ways to solve the problems and the dilemmas we face. Bill C-2 is not the be-all end-all.

Eventually, the ``Tackling Crime Act'' will be called ``provisions in the Criminal Code.'' We are here to be of assistance and to answer your questions. We have grave concerns about a number of portions of this bill. I have not spoken with respect to the age of consent in this bill. I know that issue will arise, as well as issues with respect to bail reform. This proposed legislation is just too important. I cannot emphasize that enough.

To have this bill passed quickly because it has become politically mandatory to do so from perhaps all or one party is not what we see should happen. More time is required. Although it has been suggested that too much time has been taken and Canadians are demanding the passage of this bill, I submit that is probably a myth. What Canadians want is to be safer in their communities, as do we, because we are all citizens of the community as well with our own families, homes and properties. From that perspective, and also from the perspective of being a criminal lawyer for 26 years and representing an association that has concerns across the country — and we have looked at all of those and consulted with our members — we are asking this committee to take the sober second thought that this bill requires and look at it very carefully and consider some of the concerns that all of us will present to you today.

Joseph Di Luca, Vice-President, Criminal Lawyers' Association: The Criminal Lawyers' Association welcomes the opportunity to appear before this committee on what is obviously a bill of fundamental importance to criminal law.

The Criminal Lawyers' Association is a non-profit organization that was founded in November of 1971. It is long- standing; in fact, it was founded a few months after I was born. I was not quite a member then.

Our organization represents approximately 1,000 criminal defence lawyers from across the province of Ontario. In many ways, our organization represents the front line workers of the criminal justice system. Along with the Crown Attorneys, we will feel the direct impact of any legislation that is passed in Ottawa dealing with criminal law. We will be the ones who are making it work or trying to make it work. We are the ones who are likely in a good position to know what impact this legislation will have once it hits the ground floor.

I will touch briefly on two issues that I see of great importance in this bill. I will then turn it over to Mr. Goldstein, who will deal with the dangerous offender provisions. Obviously, the bill has other aspects; we are prepared to discuss them in your questions to us. By not including them, I do not mean to overlook them, but I know I am limited by time.

Turning to mandatory minimum sentences, the Criminal Lawyers' Association obviously supports the objective of protecting our society through reducing violent gun offences. That is a very simple and easy proposition to which no one can disagree. We are, however, entirely opposed to the use of mandatory minimum sentences as a means of affecting this. Simply put, we do not feel that mandatory minimum sentences should be employed at the expense of a just and fair-minded legal system.

As Mr. Rady has pointed out and I adopt, the government of today may be motivated by media reports and a perceived need to act quickly in terms of enacting mandatory minimum sentences.

We do not believe that we need to act quickly using mandatory minimum sentences. What needs to be done now is some true, substantive study to see whether these mandatory minimum sentences will do what they promise.

Crime rates in Canada are not spiralling out of control. There is little need to establish new mandatory minimum sentences, and indeed Canada is renowned for shying away from the broad use of mandatory minimum sentences. Not only that, but look at the United States. What have they learned from their use of mandatory sentencing? In fact, they are retrenching as fast as you can possibly imagine and we have seen many miscarriages of justice through their use. The system being proposed is obviously not the same style of system, but it raises many of the same concerns.

It is our view that these changes to mandatory minimum sentences will have a negative impact on the criminal justice system. We need to ask ourselves whether mandatory minimum sentences will do a better job at cutting crime and protecting the public than the sentences that are currently available to people. I do not think we can get to the second point because, in my view, mandatory minimum sentences do not do a better job. However, assuming we get to the position where we say there is some benefit to having a mandatory minimum sentence, at what cost? We need to assess the costs of mandatory minimum sentencing to see whether the marginal difference, if one exists, is worth it. In my submission to you, it simply is not.

I will turn briefly to the impaired driving provisions. Again, I do not want any of our comments today — and I think I speak on behalf of all of us in saying this — to suggest that we are not concerned about the carnage on the roads due to impaired driving. I think we all agree that as a fundamental principle, we should protect people on the roads and avoid the carnage; it is a non-issue.

We take the view that the proposed legislative scheme included in this bill is not only susceptible to constitutional challenge on a variety of fronts, but it is overly complex. For police officers to work their way through this scheme, they will require a PhD to figure it out. This is not an easy piece of legislation to get one's mind around. If we are worried about the complexity of criminal litigation in the courts, this will foster a cottage industry of litigation.

We also want to ensure that provisions that are out there for the proposed repeal of the so-called Carter defence address that defence in a way that is fair and ensures that we are not running the risk of convicting the innocent. If any of you ask, I will have an answer in terms of the risk of convicting the innocent in these provisions, and I will address it. We obviously do not oppose the attenuation of the risk posed by drunk drivers. Rather, we seek to have that aim accomplished by means that are balanced and appropriately tailored to meet the constitutional requirements and which do not infuse the process with uncertainty.

Those are my comments in relation to the impaired driving provisions. I will turn it over to Mr. Goldstein to discuss the dangerous offender provisions.

Lorne Goldstein, Defence Counsel, Criminal Lawyers' Association: The dangerous offender provisions of the bill are the most difficult to speak about at the nominal level or the layperson's level because those people who would be captured by these provisions are necessarily convicted individuals with criminal records, and sympathy is small for them.

What concerns me is the application and misapplication of law in terms of these provisions. I am a practitioner in Ottawa. The Eastern region of Ontario has a disproportionately high number of dangerous offender applications, that is to say, applications made by the Crown Attorney's Office here and adjudicated upon and litigated in the courts, both the Ontario Court of Justice and the Superior Court of Justice, here in Ottawa and in the surrounding regions.

I say this because it is very important. The Ottawa region and the regional Crown's office in particular, have figured out a system of properly flagging these people. You will hear from Terrence Cooper of the Crown's office here. If you do not hear from him, the House has, and his testimony is available. He is a big part of that flagging system that does not require law or legislation. It is a system that they have put into place here. We are before the courts and the judge's — who are paid to do exactly that, judge — hear the applications and the determination is made fairly.

What this component of the bill seeks to do, is impose by law what should be imposed by policy, so by federal legislation, tell the provincial Crowns what they are to do and when they are to give notice. This puts the Crowns in a particularly difficult position because now they cannot engage in the same kind of pre-trial analysis that we would now. Remember, because these offenders are often flagged, at least in the Eastern region, the Crowns know about this before the trial and it shades the entirety of the trial. I cannot speak to this issue specifically, but it is perhaps good politics, because attacking the offenders is always good politics; it is the politics of fear. It is bad law.

I, for one, as a practitioner, can tell you that I will be challenging the bill if it is passed and I expect a great degree of success, if not in the superior court — although I suspect we will be successful there — we will certainly go all the way up to the Supreme Court of Canada on this issue. It is that important and that seminal and, in my opinion, it is that indefensible. It will not survive a constitutional challenge, at least not entirely.

I reflect on the comments made in the House. I invite the government to show us their research to say that the bill will survive. They have certainly said often enough that the bill will survive, but they have not shown us — not publicly, at least — that it will survive.

When you look at the stringent requirements that the Supreme Court talks about in Lyons and in Johnson, you realize that the dangerous offender components of Bill C-2 strips that away.

Keep in mind that the statute, as it would be passed, does not require a significant disparity of time in between these convictions. An individual convicted of two counts, where he would get two years or more, and the next time before the court he has now to prove that he is not a dangerous offender. How would he do that? This will cripple Legal Aid across the country, certainly in Ontario. I can guarantee you that Legal Aid would stop funding it, which means that you would fund it. We would be bringing Rowbothams and Fishers, and we would necessarily get it, because the offender in this case goes to jail for the rest of his natural life, subject to parole, which is almost never granted, though it is granted in some cases.

This legislation is not, in my respectful submission to this committee, something that we need. The system works. Those who are flagged are brought before the court, and then, exactly as envisioned by previous bodies of government and the entire Constitution of the Supreme Court of Canada, they are heard. Where necessary, they are designated dangerous offenders; and where not necessary, they are not designated dangerous offenders.

This system does nothing but creates litigation for me, create headaches for you and take money away from crime prevention. This legislation is crime punishment, not crime prevention, and I defy anyone to present a study that would suggest otherwise. I invite questions about any of the specifics, but I share the platform with many other people, so I turn now to them.


Lucie Joncas, Past President, Association québécoise des avocat(e)s de la défense: Mr. Chairman, I would like to thank you very much for inviting us. We are always pleased to provide input and it is important to have a voice. I believe that you are truly the last possible safeguard for our clients and for citizens. I thank you very much for your attention to this bill.

I would like to start with the following comment: each component of this omnibus bill warrants a much more in- depth review. It will be impossible for us to address all the concerns in our statement today but we will certainly be available to answer questions.

First, I would like to tell you about our association. It was established 12 years ago and represents 600 defence lawyers throughout the province. The Association des avocats de Montréal was established 50 years ago and has joined forces with us today to give this presentation.

I am accompanied by Marco Labrie, who has practiced criminal law for 18 years and was also a prosecuting attorney for a good ten years. The committee will definitely benefit from his varied experience. Mr. Labrie will be speaking mainly about drug-impaired driving and the age of consent.

I cannot speak for all defence lawyers, but most stakeholders working in the justice system oppose mandatory minimum sentences.

We have confidence in the Canadian justice system, which is one of the best in the world. A number of countries hire lawyers from all parts of Canada to set up justice systems abroad. We have to reiterate our confidence in our judges who, when appropriate, are able to impose sentences based on the criteria of section 718, just sentences, proportionate to the crime, and with regard to all the surrounding circumstances. In the case of serious crimes, such as those for which minimum sentences are proposed, the courts are already able to hand down these sentences. Judicial discretion should not be limited in any way. There should be no limitation of judicial discretion.

As a practicing lawyer, I can tell you that individuals facing charges often find out about the sentence they can expect to receive when they come to our office for a consultation. It has been definitely proven that the real deterrent is the fear of being caught and not the sentence. Naturally we all want a safe society. However, I believe that we should invest in prevention and policing rather than minimum sentences. For an offender or an accused, the fear of being arrested is the real deterrent.

Second, as mentioned by my colleague, Mr. Di Luca, the United States introduced minimum sentences and now is reversing its position and attempting to amend legislative policies. I also agree with my Ontario colleagues that the dangerous offender system is already in place and works very well. Prosecuting attorneys use this system regularly and often with success. It has been mentioned that there are constitutional implications. I share my colleague's concern regarding the burden on provincial legal aid programs. Placing the onus of proof on the offender with respect to the dangerous offender designation represents a considerable financial burden.

We are available to answer your questions but first, Mr. Labrie will speak to you about the latter two topics.

Marco Labrie, lawyer, Association québécoise des avocat(e)s de la défense: Mister Chairman, I would like to speak to you about the proposed changes to drunk driving, particularly section 258 where the changes affect the extent of proof required in the case of an individual accused of driving with a blood alcohol limit exceeding the allowable limit. At present, this person must submit evidence that raises a reasonable doubt and that, quite simply, could consist of proof of what they consumed in a given period as supported by witnesses. They would submit credible evidence together with the evidence of an expert stating that the amount consumed would not result in a reading of over 80 mg of alcohol in 100 ml of blood.

If the proposed amendments were enacted, henceforth, any accused would be presumed guilty of the offence and, even worse, providing proof of innocence would not be enough for an acquittal. I will explain. Someone who did not drink a drop of alcohol, no matter the credible witnesses they provided, would not be able to say, ``Look, I did not drink any alcohol and I cannot tell you why the device has given these results.'' The judge would reply, ``I believe you, I believe the witnesses, but there is nothing I can do because you were unable to prove that the device malfunctioned or was not used properly. Therefore, your defence is inadmissible.''

Here is another example. An individual is stopped, has a reading of more than 80 mg of alcohol per 100 ml of blood, goes to hospital and provides a blood sample, probably the best means of measuring blood alcohol content. This result is analysed and provided as evidence in court and retained by the court. This result, that was lower or perhaps even much lower than the limit, is not enough for an acquittal because section 258, according to the proposed amendments, requires not only proof that the result was not in excess of 80 mg, but also and above all, requires the accused to prove and to state, ``This is how the device was not used properly or how it malfunctioned.'' Without this proof, which is very difficult to obtain for someone who does not use the device — and who also does not have access to it because no such provision exists —, it will be practically impossible for this person to use any defence other than, ``I did not commit the offence, I can prove it.'' However, the court would have no choice but to say, ``Your defence is inadmissible unless you can prove the exact malfunction of a device that you do not have control over and that you do not have access to.''

It is understandable that a legislator would believe in these devices just as man believes in the machines he invents and manufactures. Man has created increasingly sophisticated machines and has always believed that it is the best and that it is infallible. We have built unsinkable ships, space shuttles that could withstand anything but problems sometimes have arisen.

In the matter before us, it may take years and hundreds of thousands of convictions before we discover, for example, that a device that we thought was reliable is defective. What will we do about all these people who have been convicted? In the end, we will have put man at the mercy of the machine.

For this reason there are legislative provisions that permit presumption and that permit the prosecution to attain its objective of convicting those individuals charged with impaired driving, or with a blood alcohol level of more than 80 mg of alcohol in 100 ml of blood, whereas the defence need only raise a reasonable doubt. The testimony must be credible and the evidence must be credible in order for the court to grant the benefit of the doubt.

In its 1995 ruling in the St. Pierre case, the Supreme Court already stated, when it had to address the constitutionality of presumption requiring only evidence that raises a reasonable doubt — and not the degree of proof found in this bill —, that if, in fact, the law required more than a reasonable doubt, there would be constitutional implications and that it was not likely to survive Charter scrutiny under section 1.

The legislator's objective, which is praiseworthy, could be achieved by other means. There are some provisions that refer to video evidence. The legislator wants to take impaired drivers off the road. There is more than one way to do that. We do not have to rely solely on these results, for which we may not be able to provide evidence and against which we cannot defend ourselves. For example, if patrol vehicles were equipped with video equipment to film the behaviour of drivers on the road, and the behaviour of a person who gets out of his car, no matter what the person may have or may not have had to drink, this evidence would be very important in determining if they were impaired. In fact, a picture is worth a thousand words.

The public is concerned about and shocked by repeat offenders. We have to take off the road those individuals who not only commit an offence but who break the law repeatedly. There are already provisions for escalating sentences. However, the problem of repeat offenders is dealt with, first and foremost, by increasing police operations. Police associations have urged, here and elsewhere, that more money be allocated to conduct more operations that will take off our roads those individuals who commit these types of offences.

With respect to the Criminal Code amendments regarding the minimum age of consent to sexual relations, we believe that there is a problem with raising the age from 14 to 16 years. This does not at all change the existing provisions which criminalize various sexual predator behaviours, where an individual must be 18 in order for the consent to be valid. There are already a number of provisions to that effect.

However, even if these two consenting young people are in love and would like to have sexual relations, there is an arbitrary criterion of five years. If the age gap is greater, then a crime is automatically committed, even if the parents are aware of the relationship and authorize the adolescent and her companion to have sexual relations because it is a serious relationship. Not only is a crime committed, but everyone is an accomplice if they knew about it and encouraged it. That is a problem.

Ms. Joncas: With regard to the last problem my colleague spoke about, there are several incidental consequences that I would ask you to consider. In Quebec, an adolescent can obtain a prescription for contraceptives at the age of 14 with the consent of a parent. Could a doctor, knowing that the patient is having sexual relations with someone older, be an accomplice to a criminal act by fulfilling his obligations? Will there be incidental responsibilities? I believe that we must ask ourselves this question.

The Chair: Thank you very much everyone.


Senator Stratton: Thank you for appearing today. As you are all on the defence, I can understand your position in certain instances. I think Mr. Goldstein said that the system works. I find that curious. I do not think the bill would be before us if the system worked. There are serious problems out there; we all know that.

In my city of Winnipeg, our biggest problem is drug-related gangs. They do such things as drive-by shootings and steal cars. The Winnipeg Police Service found that there was a group stealing automobiles. If they took them off the street and returned them on the streets, they were stealing cars the next day. When they took that same group and held them, the incidence of stolen cars dropped dramatically. Should we not try doing something about that problem?

How do you explain that the law is perfectly fine to the family of an innocent bystander who is the victim of a drive- by shooting? You cannot do that. How do you respond to that question?

When it comes to the age of consent, you can argue the appropriateness if someone is 23-years-old and the other person is 15-years-old. The law is not actually after that, although in my personal view, I think that should be there. We are more concerned about the sexual exploitation of young girls and boys. That is what civil society is interested in. How do you respond to that?

Mr. Rady: Our Criminal Code is not perfect.

Senator Stratton: Someone said it is working.

Mr. Rady: It is working as best as it can. There will always be crime; there will always be murders. There were murders in this country in the 1920s, 1930s and 1940s. We have gang violence. The issue is whether imposing mandatory minimum gun crime will solve the issue of gangs. Why do young people get in gangs today when they did not 20 years ago? We had the same Criminal Code; the code has not changed. What is the socialization process we have for people out there? What is the root cause of why they are getting involved?

Until we determine that and spend the money to get to the root of the matter, we will continue to have the problem. You will put them in jail for a while, but they will get out of jail and they will have learned from their peers in jail perhaps how to steal a car better the next time. I am not saying people should not go to jail for being bad. However, this bill will not solve the problem. Yes, we have issues with the Criminal Code. We have issues in our society.

With respect to the issue concerning the age of consent, is that a moral issue or a protection issue? The sections in the Criminal Code about sexual interference and people in positions of trust or authority abusing those things or internet luring are all there now to be used and to be enforced. Will raising the age of consent to 16 years help that issue? No, it will not because the law exists.

What has happened is that there is a culture of fear out there. There is a myth of fear. Yes, we do have gang crime. Yes, gangs are bad. Yes, there are drive-by shootings. Yes, innocent people do get killed. That is wrong.

I am suggesting that this bill is not the answer to it. To suggest that it is, and to suggest that Canadians will feel safer because of this bill is incorrect. We may tell them they will feel safer. However, are they really going to be safer until we get at what we are really after which is why do we have a gang problem? It is not because the laws are not tough enough. These guys do not think I will not use a gun because I might get a five-year mandatory minimum sentence instead of a four-year the way it used to be. That does not go through the minds of our clients.

Senator Stratton: The problem I have is that we have looked at the social root causes of why this occurs. How long have we been looking at this? All it does is get worse and worse.

The incidence of violent crime in the City of Winnipeg is worse. We are the city with the highest number of stolen automobiles in the country. Something must happen. There must be deterrents put in place to create the fear that if the individual does the crime, he does the appropriate time. That has to happen.

Mr. Di Luca: Fair enough. In the U.S. experience with the war on drugs, they went to a system of horrifically harsh mandatory minimum sentencing. In Michigan, they passed a law that if you were caught with 650 grams of powdered narcotics, you got life with no parole. All that ended up happening is they had a nation in custody and a flourishing drug trade. Mandatory minimum sentencing has fallen flat, most particularly in the area of drug trade, because it does nothing to change the demand and supply of drugs. All it does is take one actor out and create an opportunity for the next actor to step in and fill his or her shoes.

I agree with you that gun violence is a massive problem. The fact is there are kids who see guns as jewellery nowadays and are free to carry guns around in school and elsewhere is terrifying. We need to fix that. I do not think that using a mandatory minimum sentence to punish a kid with five years of jail, regardless of their background or story, will do anything other than take that one kid out of the cycle for that period of time. It will not change the underlying problem. I think we are ad idem about our concern regarding the problem, but are looking at fixing it in different ways.

Mr. Goldstein: I want to qualify my comment by saying that I came here to speak exclusively on the issue of the dangerous offender provisions. I do not want my words to be used as a sword against the others instead of a shield against my provision.

Senator Stratton: This is a political arena.

Mr. Goldstein: I am learning that. I maintain that Part XXIV, as it exists now, is a product of almost 100 years worth of legislation coming down from England and it does work.

In the senator's example, when he was commenting that someone said the system works and then talked about stolen cars and gangs is a perfect example that your mind did not turn to flaws in the system pertaining to dangerous offenders and long-term offenders. There are flaws in every system, but Bill C-2 does not address any of them. Your comments and examples used support my contention that Part XXIV as it exists now works and should be used.

Senator Stratton: I beg to disagree.

Senator Carstairs: My question is in respect to the age of consent. As you know, we have had 14 years of age since 1890 and before that we had the age of 12. Like you, I have concerns about the constitutionality of this provision, particularly given we have 12 to 14 years of age in one set of rules, we have 14 to 16 years of age in another set, and 16 years and over in yet another set of rules.

Can one of you elaborate on your concerns with respect to the constitutionality of this particular bill?

Ms. Joncas: I believe that some of the provisions in the code have already been addressed by a Court of Appeal decision and have been struck down. I will get back to that later.

There is another set of rules at section 159 regarding anal intercourse, which brings the age to 18 years. That might discriminate against some sexual practices. In R. v. Roy, the Quebec Court of Appeal struck down that section as unconstitutional. I can give you the reference and submit the decision, but the committee should look at that decision.

Mr. Di Luca: I will add another decision from the Ontario Court of Appeal by Justice Abella as she then was, now sitting on the Supreme Court of Canada. She also struck down that provision. It is the case of Regina v. C.(M.) 1995, page 481. In this case, the court found it was unconstitutional to create a bar against gay men having anal intercourse between certain ages when that bar did not exist between married heterosexual couples. An aspect of that decision is replicated in this legislation. If you want to see a very direct route to a constitutional challenge, I am sure Justice Abella would be ready to hear it at the Supreme Court of Canada, having decided the issue some 13 years ago.

Ms. Joncas: Before in the Criminal Code, we had distinctions between the act of rape and the act of sexual touching. Rape is now included with the acts of sexual touching. We might have a responsibility regarding the variety of sexual touching that can be used in this legislation. If we look at the absence of consent for kissing, for example, the same provision still applies since we no longer have two different provisions. There is a wide range of behaviour that will be affected and it could be out of proportion with the infraction.

Senator Carstairs: That is interesting. I specifically asked justice officials yesterday what was included in their definition of ``nonexploitive sexual activity'' and they admitted kissing was to be included. We have the hypothetical situation of a 13 year old in the same school with a 19 year old and they kiss one another. Suddenly, we have a charge under this situation.

Mr. Rady, I would like you to address this because you said this is perhaps more a moral issue than a protective issue. Would you like to elaborate?

Mr. Rady: I will give another example. You have the situation where you have the 14 year old who is going out with someone who is 19 and one day; that is, just past the five-year-mark. They like each other very much and they are at the high school dance and start kissing or petting. The parent of one of them finds out. They do not like him, so they call the police. He is now charged because that is a sexual act in that category. He is out of the five years and he cannot rely on the consent issue. It is the morality there that this is the kind of conduct we do not want.

As Ms. Joncas says, because our definitions of ``sexual assault'' and ``sexual touching'' are so broad, this will grip the kind of activity that otherwise we might think is okay. Again, it is a morality issue when we are talking about things like kissing and petting and what young people sometimes do. It is a morality issue to some extent where the approval or nonapproval has been talked about concerning the anal intercourse provisions.

When getting to what we want to do with this, which is to prohibit the criminal behaviour and to prohibit the sexual predators on these people, if you look at the laws now, there is no gap where you can say, ``But for the changes in the age of consent, this person would not have been charged or convicted of this act of being a sexual predator,'' whether it is sexual interference, sexual assault, Internet luring, or what have you. There does not seem to be a gap there; there does not seem to be a need.

The only conclusion that you can draw is that for some reason now we all think, ``Well, at age 14, you do not really know what you are doing. What does the 14 year old know? They should not be able to consent.'' We are sensing it is wrong that 15 year olds should be able to consent to have sex, although some doctors will give out birth control pills to 14 year olds. That part of it is morality.

In a Criminal Code section, we want to protect people from the predator relationships that might exist. We are saying that at the current age limit, there are those protections. What is this accomplishing other than stating, from a moral point of view, ``We really think that 14 year olds should not be in a consent situation and we should increase the age to 16.'' How can we disagree with that because we might all think that. Perhaps 14 year olds are a lot more sophisticated than we give them credit for — perhaps more sophisticated than I was at age 14.

Senator Carstairs: I certainly think 14-year-olds are much more sophisticated than they were in 1890. In terms of this whole area, one issue that causes me concern is that we are sending out two messages. We are saying that a 12 year old absolutely knows what he or she is doing when he or she commits a criminal act because 12 is the age by which he or she can give consent, presumably, to a criminal act. However, a 14 year old does not know what he or she is doing when participating in a sexual act, including kissing. I do not get it. I would like to hear a comment on that.

Mr. Rady: I agree with you. That is a very naive approach. That is why it goes back, with all due respect, to the morality or the issue of the policy as to why it should be age 14. If you look at the provisions that exist in the code for protection, what more protection will this give other than to have this absolute and, perhaps, get some kids who you think maybe should not be hanging around with each other and kissing at the high school dance, or whatever else they choose to do. Because the sections are so broad, it includes that low.

You are right: At age 12 and one day, you can be charged with breaking and entering and you can form the intent to go into a home and steal whatever, or do that robbery and be charged under the Youth Criminal Justice Act. On the other hand, somehow, you do not have the wherewithal to know that the person who is five years and one day older than you, who you might like, is not allowed to kiss you. That does not make sense, frankly.

Senator Carstairs: Not to me, either.

Senator Joyal: Is this on that ``differential of treatment'' in the code and in the Young Offenders Act that, if you were faced with such a case, you would plead the unconstitutionality of that provision?

Mr. Di Luca: Absolutely. We would all raise the constitutionality of it. There is good authority for doing it from various courts of appeal. Given the right set of facts, it would not only be susceptible to constitutional challenge it would likely fall to constitutional challenge.

Senator Joyal: Based on previous court of appeal decisions, among which you have quoted in Quebec and Ontario.

Mr. Di Luca: That is correct.

Senator Andreychuk: Are you saying that we constitutionally rest on the fact that we cannot have age discrimination? We did not say they are fully accountable for criminal acts. We put in a whole system recognizing that they are not adults. Your argument would hold if a 12-year-old went to criminal court. A 12-year-old does not go to criminal court. One can argue that we have done things in the Youth Criminal Justice Act that we wish we had not done, but we did create a different court based on some very valid value judgments. We allow young people to join our military at a certain age. They can drive and drink at a specific age. We make value judgments all the time. Surely it is not age discrimination. Give me a case that says we have to have uniformity of when you are a child and when you are an adult if that is what you rest your case on.

Mr. Di Luca: The provision as worded now contains an exception if the two are married. What become criminal is determined fundamentally by your age, but principally then by marriage. If, for whatever reason, you fall into the provision where you so happen to be married to the person that you are kissing, it is no longer a criminal offence.

Senator Andreychuk: Now you are changing your basis for application to the court so that it is not on age but on the discrimination of the marriage. I did not ask that question.

Mr. Di Luca: It is fundamentally tied to the age. If it is fundamentally tied to the age, drawing the distinction on the basis of marriage is, in my submission, an unconstitutionally permissible way of dividing it. What is the difference in the act if you are permitting it in the context of marriage and not permitting it in any other context? Even though there is an age issue, without the age you are not at that point. In terms of purely drawing a line in the sand, I agree. Why do we let people drive at 16 years as opposed to 15 years, or why not at 19 years? I think it should be 21 years, but that is a different issue.

Senator Andreychuk: You cannot be a senator until you are 30 years of age, so there are all kinds of age discrimination.

Mr. Goldstein: This is not my area, but as we were talking about age discrimination in respect to this, the words ``slippery slope'' kept coming to my mind.

The senator was talking about the arbitrary age discrimination and how the issue arose. It strikes me that if it is presently 14 years and this bill would raise it to 16 years, a future government may decide to raise it to 18 years of age by virtue of the fact that age is something it has been empowered to play with. The age of 18 years includes the age of entry into the army and the age of driving in certain areas. It has to be a moral or a legal issue. It seems to me the morality of it has spoken, the legality of it has spoken, and this does not strike me as an appropriate change, but again, it is not my area.

Senator Andreychuk: I do not want to get into this debate with these witnesses, but certainly with others. I hope to have some evidence of how we arrived at combining a sexual assault and a rape. The women's movement could speak eloquently as to the unwanted sexual advance. I think we fully understand. You go from a minimalist to a maximalist intrusion. I think we did not want those distinctions in the law. Again, you can call it a moral or a value judgment, but I remember those days when I fought to say that any unwanted advance is inappropriate and something that society should address. We fully understood that there would be the lesser end and the greater end, and that is the conundrum that hopefully case law and good policing and good prosecution will address, if we trust the system, which I do.

Mr. Rady: One concern I have, and it exists in the current system, is that we call it sexual assault, which could be an unwanted kiss. Sexual assault can be a rape. The person who is convicted is convicted of sexual assault. The stigma is attached to sexual assault. There is no little bubble explanation saying, ``This was only a kiss,'' or, ``This was a rape.'' That is a concern, and that is why we have to be very careful about creating something for these young people when that kiss is a sexual assault because it is unwanted.

I not disagree that any unwanted sexual behaviour is a criminal act, but there are degrees of it. Here we have a situation where they may actually be consenting and it may be the parent who does not like one or the other of the youth.

Senator Andreychuk: That is my point also. As an association have you made all of these concerns known? Bill C-2 does not raise these conundrums. They were in the criminal courts before. This is not the first bill with mandatory minimum sentences, for example. Did you make the same arguments five years ago when we were talking about minimum sentences with guns? Have your positions changed?

Mr. Rady: Our positions have not changed. For example, some mandatory minimums will never go away. A conviction for first degree murder is a minimum life imprisonment sentence with eligibility for parole in 25 years. That is understandable in those circumstances perhaps, but we have concerns even with the current mandatory minimums. In fact, to give an example, we have an offence currently under the Criminal Code that carries a one-year mandatory minimum, and that is for trafficking in firearms. The new bill suggests that trafficking in firearms go to three years. The section of the Criminal Code is geared towards true firearms traffickers, but I put the situation to you as this, and it is a real one: Someone inherits the family farm, and finds the .22 rifle or old muzzle-loading black powder rifle. The person who inherits does not have a Firearms Acquisitions Certificate, is not an authorized dealer in arms, and does not want the gun. The person puts an ad in the paper to sell the firearm. The person who buys it does not have a FAC. The next thing you know, that transaction is firearms trafficking. That person who perhaps innocently sold an old. 22 that the grandfather used to shoot coyotes that were bothering his chickens on the farm is now facing a one-year mandatory minimum jail sentence. The difficulty is that the prosecutors have little discretion under the present law. They want to bump that particular section up to three years. That person is then facing a three-year mandatory minimum jail sentence for selling the old family rifle to someone who did not have a FAC because he or she is not an authorized firearm dealer. The person who inherited it just wanted to get rid of it and perhaps did not do the right thing.

The difficulty with mandatory minimums is that there is no discretion. One of the submissions that the Canadian Council of Criminal Defence Lawyers suggested in the past is if you are going to have mandatory minimums, if it is going to go ahead, the judge should have overriding discretion in exceptional circumstances to not impose the mandatory minimum. That might not make it a mandatory minimum at that point, but there may have to be circumstances that have to be shown, such as in that case, because otherwise it is very draconian. The judge has no choice. Prosecutors have very little discretion on gun crime to reduce the sentence. Trafficking in a firearm is an indictable offence. Now, that is just one case, but a real one. That is the difficulty when we start drawing that line and we cannot go below it.

The other myth is that judges do not treat gun crime seriously, and if it was a true gun trafficker, that they would not punish that person harshly by a penitentiary sentence. They do. The concern is that getting away from the discretion from the bench, from the judges, is a dangerous thing. It is sort of a slap in the face to them. They do not come before committees to say, ``We are doing our job very well in this country, and we know when we see bad people out there, hardened criminals, that we will punish them accordingly.'' They do that, but there seems to be a concern that mandatory minimums are there in order to ensure that these bad guys go away and that some judge will not slip up and give them a lighter sentence than what someone else thinks they ought to have.

Part of our position as well with respect to mandatory minimums is that judges are doing their jobs. There are checks and balances at the Court of Appeal. Let the judges do it. We do not need to have the mandatory minimums because they may create an injustice at one and, and, at the other, there is still the protection that exists if we allow the independent judiciary to be just that.

Senator Baker: I would like to thank the witnesses for their very excellent and thorough presentations and for the brief that we have here, which goes beyond the verbal presentation given and goes into some detail.

I have been requested to ask questions regarding the drug driving provisions in this proposed new law. I read the details that you presented from the Criminal Lawyers' Association dated February 2008. Senator Joyal sometimes reminds me of an expression to the effect it is better to let 10 guilty people go free than to convict one innocent man.

As I see it, reading your presentation and listening to you, a senior citizen could be driving down the road 20 kilometres below the speed limit or wait 10 seconds to turn when a light changes. This, as we have seen firmly entrenched in case law, is reason enough for a police officer to stop the individual on the suspicion that something may be wrong and given the time of day or night, perhaps even more than something is wrong.

If the police officer does not detect the smell of alcohol, and seeing that it is a senior citizen, I presume the first question the officer would ask is whether the senior has been taking any prescription or non-prescription drugs of any kind. If the person admits that he or she is taking drugs, say for arthritis, according to the law, the officer would be compelled to ask the person to exit the vehicle and perform some prescribed physical coordination tests.

The officials from the Department of Justice are providing us with a list of those tests which are being prepared for regulation purposes. However, they did disclose one of the tests involves having to stand on one foot and maintain your balance for about 30 seconds. You do not want to fail that physical coordination test. Honourable senators, I am afraid I cannot do some of the tests.

Correct me if I am wrong, but the next step could be that the officer could ask the person to accompany him to the police station for further investigation. That could result in the person having to urinate in a bottle and it is not a friendly invite. In law, I suppose you would say the person is detained or under arrest.

I want to get back to the question at what time do the 10(b) rights of the Charter triggered after this very complex procedure, but I want to continue on this to see if I understand you correctly.

The person is asked go to the police station and to urinate in a bottle. I have noticed that at the police station, even when talking to counsel on the phone there is usually a window so they can observe you. If you have to go to the washroom, a police officer must accompany you to ensure you do not ingest something to spoil the sample they are about to take because there is a presumption that within two hours that was your condition before.

The Chair: Do you have a question, Senator Baker?

Senator Baker: Yes. Further, some people are not able to urinate in front of someone else and that is a reasonable conclusion someone could come to.

In your professional opinion as criminal defence lawyers who have tried some of these cases and looked at this law, is what I am saying reasonable? Could an innocent person in those circumstances be captured because of the possibility that person refuses or cannot do the test?

Mr. Di Luca: If the person refuses to do the test, he or she has committed a criminal offence. The innocent person doing nothing other than driving slowly is then the subject of a criminal process.

To step back a bit, here is one problem with this legislation. There is no definition of ``drug'' included. If you look at the Controlled Drugs and Substances Act, previously the Narcotic Control Act, there are schedules and lists of what is a permissible or non-permissible drug. We know alcohol affects a person's abilities to drive. We do not need a schedule to define it. We know that it affects your ability to drive.

With regard to drugs, there are thousands of drugs. How do we know which drugs influence a person's ability to drive? Should there not be a schedule of drugs, so that if the answer is I am taking Celebrex because I have bad joints, the officer says that is not a scheduled drug. If the answer is I am on methadone or Demerol or I just smoked a joint, those are all scheduled drugs. The police are aware of those drugs and can proceed to the next step. In this regard, we do not have a link between the drug and a state of impairment because you cannot assume there is a link between a drug and impairment of the ability to drive. We have no way of weeding out one from the other. If the answer is ``no'' police officer will ever pull over the senior citizen who is driving slowly. Remove the senior from that example and replace the senior with minorities or race or the wrong person in the right neighbourhood. You can see if discretion is going to be transferred and it is left very broad hoping that everyone in the system does the right thing — such that the senior is never going to get stopped for abusing whatever medication they might be on — then we are missing the point because it will happen. The reason we put these regulation and rules in place is to ensure that no innocent person is subjected to the criminal process.

This is a broad piece of legislation. The Supreme Court of Canada undertook a delicate balancing analysis in determining that given the carnage on the road from drunk driving, you can pull over a person and hold them at the side of the road for a period of time without engaging their Charter section 10(b) rights. However, now even that law is in a state of flux. If the person has a cell phone and there is a delay at the roadside, you should give them an opportunity to contact counsel. That analysis was undertaken in the context of drunk driving, that is, alcohol-related impairment. We know the direct link between the two.

I think, if we are going to re-engage in that analysis on the basis of drugs, what if it is Celebrex the person is on or some other drug that does not cause any form of impairment. You are right, that person as it now stands is off to the police station and it is not a friendly invite.

Senator Baker: I thought you were going along well up to the last two sentences. Where I thought you were going to go was this: The Supreme Court of Canada took great trouble to examine the law of the roadside test for which rights to counsel do not have to be given because there is only a suspicion. You are right and they judged there was a period of time — I think Justice Lamer said 30 minutes — in which it was justifiable. It was a violation of your Charter rights, but justified under section 1 of the Charter. All of the rationale used, and this was Senator Joyal's question yesterday, had to do with the consumption of alcohol.

Drunk driving and all of these new roadside tests to be given prior to rights to counsel are now associated with something else. All of these physical tests will now go into the mix.

In your professional opinion, do you believe that arbitrary detention, so judged before by the Supreme Court of Canada, will now survive, with the additional requirements in that period of time, a test of the Charter?

Mr. Di Luca: I do not think it will withstand in the absence of some concrete evidence establishing a link between the harm you are trying to prevent and the means you have chosen to prevent it.

Senator Baker: In other words, the evidence.

Mr. Di Luca: Correct.

Senator Baker: The evidence that is a problem on the highway; that is, the evidence from existing case law.

Looking at the case law, I cannot find — at least in the electronic versions of WestlaweCARSWELL and Quicklaw — evidence there that there are studies that show the consumption of prescription drugs, for example, is causing carnage on the highways. However, I can find many studies saying that alcohol and drunk driving does cause many accidents.

Mr. Di Luca: The only study I have seen with drugs is that marijuana users are frequently far below the speed limit. That creates its own danger. I have not seen anything more concrete beyond that.

Senator Baker: At what point is section 10(b) triggered in this entire process of ``reasonable grounds to believe''? This came up yesterday. Are you aware that the only case we could find in the superior court of a review of a judgment in the provincial court on the DRE testing is a case of R. v. Wood in Alberta that struck down DRE because it was only 44 per cent to 74 per cent reliable? That is, it was not worthy in a criminal proceeding and it was struck down as something that could not be used in a criminal proceeding.

Mr. Di Luca: I am aware of that. In British Columbia, there are other cases that deal with the issue as well. With the admissibility of this stuff, either you do it by regulation where you deem it to be admissible or it must meet the test for scientific evidence before the court. I do not know where the evidence is to back this test. You are asking people to stair at a pencil. You will move it forward and back from their face and from that determine that they are on drugs and impaired. That is just one part of the test; there is more to it. If you are getting an accuracy rate that is that low and there is no evidentiary backdrop to it that links it to carnage on the road, and if you are doing an analysis on section 10(b) rights, section 10(b) triggers when you are detained.

Senator Merchant: Can you address the troublesome issue of North American crime prevention? I think Mr. Rady touched on this. In my opinion, the model we are following is wrong. I think we could look to Europe, where many countries have less money to devote to justice and justice prevention, but where they put money into reforming the prisoners while they are incarcerated. Their crime prevention strategy says that they want to minimize anti-social behaviour by addressing the causes, which are individual causes. To the extent possible, they try to rehabilitate the person rather than impose minimum sentences. That is, they judge the individual. The United States' model is a bit different. Of course, many Canadians may not know that every state has its own laws. In Canada, however, criminal law is a federal matter.

We have these two models. The three-strikes-and-you-are-out model seems to be the model that we are now following when going to dangerous offender legislation. I think that our criminal rates are going down and violent crime is going down. Can you help me with this question? When you do these things on a comparative basis, why are we moving toward the U.S. model?

Mr. Rady: I think the answer to that is probably political and you will recall that we are not here to be political. The U.S. model is very interesting in many respects. They have the ultimate mandatory minimum punishment in some states, which is the death penalty. Yet, we all know that their murder rate is a lot higher than ours, where we do not have the death penalty. Does that work?

On the other hand, let us take what happened in New York City a while ago. We recall that city back in the 1970s. No one wanted to walk in Times Square; it was lawless. They decided to put a police officer every 100 feet and a police precinct right in Times Square. Times Square is now one of the safest places you can travel in the United States. It had nothing to do with creating new punishments and laws. It had to do with the police presence, which is an expense, and being caught.

There is that one aspect that they perhaps do right, namely, a lot of police and getting caught. Some of us do perhaps exceed the speed limit. We know that if there are a lot of police cruisers on the side of the road, we slow down. We do not think of what the fine will be; we just do not want to be fined or lose demerit points. When Ontario had photo radar, which went away for other reasons, people slowed down. It was the aspect of getting caught.

Getting back to our other issue, as you indicated, European countries trying to get at the causes of crime, with all due respect to a comment made earlier, I do not believe it has been studied enough. We must try to understand why there has been a change in society and that is not for us to do. We are saying that we do not need a quick fix that might otherwise trample on the rights of innocent Canadians, which is something we do not need. We seem to have this hysteria that has built up through the media. There have been horrible incidents, for example, the incident in Toronto that occurred on Boxing Day last year. Many horrible things occur and we must address them. However, we must look at it in a sober way and decide why this is going on. Why does this section of Toronto have this kind of gang violence? Why does that section of Winnipeg have gang violence? It is not because of the Criminal Code. We must go deeper and until we do, we will be in the same situation as we are now.

For example, with respect to smoking — and I have used this example at committee before — is no longer socially acceptable. It used to be that in courthouses, even in courtrooms, people smoked everywhere. Laws were passed. You can say smoking is not allowed here or there, but it became socially accepted. It became a health risk. It was sold on that. I submit to you that impaired driving is somewhat that way as well. We see that younger people are not our clients for most impaired driving cases. Most impaired driving accused are over 30. Young people seem to understand that when you go out at night and you have a big party, you must have a designated driver or you take a taxi which, frankly, our older generation has not realized. They have been socialized into believing that that is not socially acceptable.

I do not know the answer to the other issues of violence, but perhaps we can use that same kind of analysis to try to determine, as Mr. Di Luca said, why a gun is like a piece of jewellery and why it is cool to street race. It will take time — it is not a quick fix — to try to make those kinds of conducts socially unacceptable. That will be when we solve the issue. If we can learn from European models, then that is great.

Saying that we need Bill C-2 to go through and everything will then be fine will not work. Sorry, but that will not happen. It will not be fine. More study and more information is needed.

Senator Merchant: The area I am supposed to concentrate on concerns dangerous offenders. In the definition, I see that the primary designated offence pertains to sexual offences. I see that of the 12 offences, seven of them are sexual offences. Why were these 12 chosen?

Mr. Goldstein: The dangerous offender provisions themselves were originally contemplated as necessary in order to address sexual offences. That is particularly true in the debates that surrounded the 1997 modification of Part XXIV to include the LTO. When you read those debates, it is almost entirely aimed at sexual offences.

The problem that perhaps this bill is addressing is that because it is never limited to that in statute, it has become a tool to address anyone that, in the estimation of the Crown Attorney in question, the regional crown and the Attorney General, was, to their term, out of control.

In my office right now, we have no fewer than seven dangerous offender applications in various stages. I think only two or three of them have any sexual component whatsoever. It is becoming used as a broad sword instead of a surgical instrument.

Maybe one of the only things the bill does really well is say, ``Hold on. This is supposed to be about sexual offences.'' The problem is, as was mentioned earlier, ``sexual assault'' is very broad. Unlike it used to be with the old rape provisions, and unlike in the States, where you have various levels within each count, ``sexual assault'' is everything from a groping at a party — and the example I used in the House was a groping in a pool — to the old rape provisions. Since the behaviour can fall anywhere between there, it is hugely problematic.

I had a client convicted, before he met me, of groping. He is a registered sexual offender. It is inconceivable for people who grew up in the sexual revolution and with any kind of understanding of history and of the Victorian age. We are moving into a phenomenally conservative time, and that is fine. However, these provisions, incorporate primary designated offences that are too broad in order to have any meaning in application. Why have they done it? They have done it because they read well. When dealing with politics of fear, you use the words ``sexual assault'' and everyone will respond. It is good politics, namely the politics of fear, but it is bad law.

Senator Joyal: I would like to refer to the brief of the Criminal Lawyers' Association. I think Mr. Di Luca presented it. I would like to draw your attention to page 6 where the second bullet deals with your opinion of the impact of the mandatory minimum sentence.

To support that conclusion, you state:

. . . MMS should not be introduced merely to placate a political constituency or without regard to a thorough understanding of the infractions or offenders for whom they are intended.

You give as a reference to that conclusion a study by Professor Thomas Gabor and Nicole Crutcher. The title of their report is, Mandatory Minimum Penalties: Their effects on crime, sentencing disparities and justice system expenditures, was commissioned by the Department of Justice Canada, and published in January 2002.

Yesterday, we heard from the representatives of the Minister of Justice. They quoted that study as being one of the studies they rely upon to contend that a mandatory minimum sentence approach is an appropriate way to fight crime. How do you reconcile those two positions?

I will be very blunt with you. Must I imply that you nitpick in the study the things that support your conclusion, or is this the thrust of the study that was given to the Department of Justice?

Mr. Di Luca: I quoted it on purpose because I found it interesting to see that their research went against the use of mandatory minimum sentencing. The citation from the paper is accurate. I invite anyone to grab that paper and read it. In fact, I think it is likely available on the Internet.

You will see that paper, and I am sure the statistics that support it, because Professors Gabor and Crutcher went to some sort of analysis behind it. It contains their conclusion. It may be a direct quote from their paper. The research commissioned by the Department of Justice seems to go against the very position that they are articulating before this committee and before others on these issues.

Leaving aside that research for a moment, is there some research out there that says that you have had some changes in crime rates by virtue of mandatory minimum sentence? Yes, there is. How effective? I think it is inconsistent. I do not think there is any piece of research out there that consistently shows a reduction in the crime rate by virtue of mandatory minimum sentence. You might find an odd example which, going back to my initial point in my opening statement, you need to set that off against the cost of mandatory minimum sentencing. We know that the costs are extreme.

I have highlighted a few of the points, but let me repeat them briefly; there are only five. First, in our view, mandatory minimum sentence will not result in a tangible reduction in the incidence of serious violent crime. Second, it will reduce and transfer discretion from judges who are there to craft a just and appropriately tailored sentence. It will remove that discretion and shift it to the prosecution and the police, who we then trust to decide when is the right case and when is the wrong case. Third, it will circumvent the principle of proportionality, which is in the Criminal Code and which is the Supreme Court of Canada has repeatedly said is the right way to impose sentences. Fourth, it will increase prison and related costs; people faced with a mandatory minimum sentence are not likely to plead guilty. They are likely to go to trial because they have nothing to lose. More problematically from a fairness perspective, mandatory minimum sentence will hit minorities and Aboriginal communities harder than it hits anyone else. That is something that we must be concerned about. I agree with your point on that. I find it interesting — and I use the word ``interesting'' euphemistically — to find support for my position in a Department of Justice research paper.

Mr. Rady: If I can respond further, in the legislative summary for this bill, which obviously was completed by the Department of Justice, it refers to the same study that Mr. Di Luca referred to. It says:

A study published in 2002 concluded that existing research generally does not support the use of mandatory minimum sentences for the purposes of deterrence, or for the purpose of reducing sentence disparities.

It is same article. They also cite other studies. It states, ``The study concluded that a direct cause-and-effect relationship between minimum penalties and declines in crime rates could not be drawn . . . .''


Ms. Joncas: I would like to refer the committee members to the testimony of Mr. Brodeur given on December 4, 2006, before the House of Commons Standing Committee on Justice and Human Rights. He identified, I believe very clearly, what I said to you this morning about research — that deterrence is directly related to the fear of being caught and not to mandatory minimum sentences. MrBrodeur spoke quite eloquently about this matter.

Senator Joyal: You or Mr. Labrie also spoke about American studies showing that Americans are currently distancing themselves from mandatory minimum sentences because they have realized that the results were not those expected. Could you forward to the clerk of the committee a copy of the studies or articles to which you referred when making such a conclusion?

Ms. Jones: Certainly. I believe you will be hearing next week from Ms. Kim Pate and Ms. Dominique Larochelle of the Elizabeth Fry Society of Canada. I know that they will be testifying to that effect. I will be sure to send you a list of the references before they testify.

Senator Joyal: Thank you.


Senator Joyal: I would like to come back to the reverse onus issue. During the question and answer session, you touched on the aspect of constitutionality or non-constitutionality of some of the provisions. You have addressed the issue of drunk driving and age of consent. You said that the issue of reverse onus, the three-strikes-and-you're-out provision, might be the objective of constitutional scrutiny. Could you explain at what level you conclude that those provisions of the bill might be open to challenge and on which aspects of the Charter you feel there is a potential of non-constitutionality?

Mr. Goldstein: Are you speaking specifically of the reverse onus provisions of the dangerous offender changes?

Senator Joyal: Yes.

Mr. Goldstein: I should say there is more to the bill than just that which is questionable. There is also dealing with the potential breeches and some fall-out that are of concern. The big topic has always been the reverse onus aspect.

The one thing I think we can agree on, although we will have to look at Gardiner again, is that because the person is convicted, he or she does not have the presumption of innocence. That is certainly true on a first blush reading. However, we do know — and this is old law — that unproven allegations, which are always a big part of a dangerous offender provision, do have to be proven beyond a reasonable doubt. That again goes back to the Supreme Court from decades ago.

The reverse onus provision completely ignores that. While in terms of the predicate offence, the offender has been convicted and no longer benefits from the presumption of innocence, for all of the other colouring factors, the person does benefit from the presumption of innocence. We know, in fact, that if a charge is outstanding, it cannot be used. I have seen and it has happened in my case where an outstanding sexual assault charge was withdrawn literally with the swoop of a pen so they could use those facts in the dangerous offender provision. They cannot later relay that if they do not like the outcome of the Part XXIV application.

There is recognition that the offence is proven in the criminal record and the predicate offences. No, the offender does not benefit from the presumption of innocence, but serious and heavy-duty litigation happens on all of the other litigations. That is why a 30-day dangerous offender hearing can constitute 30 little trials. This says, ``Do not worry about that. For all of those allegations that will be mentioned and relied upon in the psychiatric assessment pursuant to section 752.1, we will presumptively believe those now. We do not have to prove them because you have a bad criminal record.'' Arguably, the presumption of innocence is a problem. The government has said it is not. I say it is not on the predicate offences but it is on all those other unproven allegations.

Section 7 is a massive problem for this piece of legislation, as far as I am concerned. They will argue that it is a fair hearing when this is how the hearing will go. I read this a couple of times, as Bill C-27, as Bill C-2 before the House, and the version you now have to consider. This is what will happen: The officer in charge of the predicate offence will take the stand and introduce the criminal record, be it one offence date with two convictions or two offence dates or three or whatever. Then he or she will get down from the stand and sit down. The Crown attorney will get up and say, ``That is my case.'' Because the offender is now a presumptive dangerous offender, it will become incumbent upon the defence to say, ``Okay, now I have to disprove this.'' They will have to deal with all the allegations, all of the three tests, the pattern of behaviour, the other pattern of behaviour, the brutal offence, and the presumptive offences as listed with the sexual connotations.

The CLA touches on that in the written submission. It becomes a massive problem. The Crown will then split its case, because all the evidence the defence has called to refute this reversal of onus is now the subject of the Crown's reply. We will not be allowed a sur-reply.

This little circus occurs where the Crown has called virtually no evidence, the defence has called a truckload of evidence, and the Crown will call what surgical evidence it needs, and it becomes a reverse trial, with the outcome being the most draconian known to Canadian law for a non-capital offence. The only offence in Canadian law that attracts a harsher penalty is not second-degree murder but first-degree murder, which was a capital offence.

Forty to 50 years ago, you committed an offence for which you could hang. I respect that. That is bad. That is the worst. For anything short of that, these provisions are the most draconian provisions known to Canadian law. It is scary that we now have to disprove it. We do not even know, as defence counsel, what aspect we will be disproving it on. Where will it fall? It will fall across the board, as far as I am concerned.

I remember this was asked in the House. You will find disproportionate representation of these applications made among certain communities, and that may attract Charter scrutiny in a different area. I cannot give you the specific Charter analysis right now. Perhaps at some future time I will have the opportunity to litigate it and I will be able to supply a factum. I am hoping not.

Senator Joyal: You are telling us that by widening the presumption of guilt and closing all other aspects of the behaviour of the convicted to a proof that the Crown would have to sustain and contend to the reasonable doubt of the judge is totally erased. You are saying that could represent a violation of the principle of fundamental justice upon which our system works.

Mr. Goldstein: Yes. I truly look forward to someone putting down on paper how this survives Charter scrutiny. I have never seen it. I have heard many assertions that this will survive. I do not see how. I am very much looking forward to someone putting down on paper how this survives.

For the predicate offence, it has been agreed, the offender no longer has the benefit of the presumption of innocence, but no one goes beyond that to the next level of analysis. I tell you, as someone who has litigated a number of times; the analysis is deeper than that. When talking about putting someone in jail presumptively for the rest of their natural life with the remote possibility of parole subject to a number of things that are addressed in the paper, you need a deeper analysis.

As far as the three strikes law, again, the government will tell you it is not specifically a California-type of three strikes law because the predicate offence has to be of a certain degree of significance. I respect that. Fine, and then do not call it exactly three strikes. You can call it on third conviction, it is your problem. Whatever you call it, it is a reverse onus, and it will fall.

Mr. Rady: It makes the then-convicted person show, on the balance of probabilities, that he or she should not be designated as a dangerous offender. There is an issue, I would think, with section 11(c), which is not to be compelled in witness proceedings against that person in respect to the offence, which it effectively is. If you are putting that onus on the person on the balance of probabilities, and we are at a sentencing hearing, effectively you are compelling that now- convicted formerly accused person to give evidence. It is different than another kind of sentencing hearing. There is another area that might be challenged under the Charter.


Senator Fox: First, I would like to thank the witnesses for their interesting and persuasive presentation. My questions are more general than those of my colleagues.

Yesterday afternoon, the Minister of Justice appeared before this committee. Ironically, he put a gun to our heads and threatened to pull the trigger if we do not adopt this bill by the end of this February. Had it been February 2009, we would have the opportunity to take a very close look at the implications and issues that you have pointed out. However, we are talking about the last day of February 2008, which is barely two to three weeks away. The Minister indicated that, if the bill did not pass, it would be perceived as a question of confidence, which could precipitate elections in Canada.

Given the situation, I would like to ask two general questions. First, the Minister of Justice indicated that he is against crime, violence and everything else. We are all against these scourges. That is not the issue. The issue is what is a reasonable approach that will help reduce the crime rate in Canada?

If you are not for it, you are against it; you are against reducing crime and so you are for violence. That is exactly the rhetoric that we will hear one month from now if elections are held because we were not prepared to quickly pass this bill.

In a spirit of collaboration with the Minister of Justice, I would like to ask two questions. Are there parts of this bill with which you agree and which this committee could adopt without fearing long-term consequences for the system?


Mr. Di Luca: That is a difficult question because the bill will ultimately come down to being either an all or nothing bill. Assume, for a second, that there are parts of the bill that leave me less uneasy as a defence lawyer, the only one I can highlight is the modification to the tertiary ground of bail. This is if a judge is to consider a tertiary ground, the fact that the offence was committed using a gun is something that codifies what is likely already in practice before the courts. I do not think there is a judge who, in considering bail, and in considering the tertiary ground on bail, which is a re-working of the public interest ground, will not consider the fact that a gun was used. Obviously, all judges will be aware of that. Just because a gun was used does not mean you do not get bail. Any principle close to that would obviously violate the Charter.

In terms of aspects that I am not entirely opposed to in the sense that it further clarifies the meaning of the tertiary ground, which was struck down in Morales for being unclear. In Bill C-2 we are adding to it. There is a danger in terms of reversing onus's on bail hearings, and so on; I am not entirely in favour of that proposal. That is one minor aspect.

I do not have trouble with certain other subjects. In terms of re-categorizing the offence of drunk driving as a super summary offence, giving a maximum punishment of 18 months is an understandable shift in the process. That shift would keep a number of other more serious drunk driving cases out of the superior courts and leave them in the provincial courts where, frankly, you have a bench that has developed an expertise in deciding and hearing these types of cases. That is a positive feature.


Senator Fox: I assume that the witnesses agree that that is the only acceptable part of the bill.

The minister indicated yesterday evening, in his great generosity, that he would accept amendments from us that are not substantial and not significant. Consequently, would there be other amendments that are not substantial and not significant with which you would agree?


Mr. Di Luca: There is one aspect of this, namely, the proposed amendment to section 752.1, which changes the time estimate. On its face, it is not substantive, but from the practitioners' perspective, it is very substantive. It would seem counter intuitive that I am okay with extending the time that my client can be held in custody for an assessment, but the quality of that assessment is certainly more important to his ultimate outcome than anything else. Forcing a doctor to read thousands of pages of CSC reports, some of which can be incomprehensible, and then perform studies and psychometric testing; and to force all of that to happen within 60 days, and the report itself to be drafted within 15 days, you need look no further than some of the case law. I will refer you to one example where the appointed doctor under section 752.1 did not have the time to do the comprehensive analysis.

Those are actually pretty good provisions and they have a substantive impact. Extending the time has a positive impact on the quality of information that reaches the bench.


Senator Fox: On pages 16 and 17 of your submission, you speak of these safety mechanisms. Would the permissible departure clause represent an amendment that would make minimum sentences acceptable? This measure would give judges a certain amount of discretion and allow them to set aside the minimum sentence.

When I was Solicitor General of Canada, I visited the Kingston Prison for Women. At the time, the Criminal Code imposed a minimum seven-year sentence for importing narcotics, including marijuana. During that visit, I met three young women, students at a good university who had received the minimum sentence of seven years required by law.

Later, this provision was set aside. However, the example shows the down side of imposing minimum sentences. In this specific case, the judge had written to the Minister of Justice to complain that he had not been able to exercise discretion in sentencing these three young women who, otherwise, had led an honest life. That case struck me. It is the type of situation that we want to avoid at all costs. We have to trust the judges who we appoint. The judge should have the discretion of taking into account all the specific circumstances of the accused before him.

The legislation should contain a permissible departure clause. Can you comment on this?


Mr. Rady: When our council first spoke on this bill, when it was Bill C-10, we proposed a section to be added to section 718 of the Criminal Code, which states:

Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the court before sentencing the accused shall, consider whether the minimum punishment is necessary, having regard to the public interest, the particular needs of the community and the interests of the accused in all circumstances.

That would have an affect on minimum sentences across the board but I believe that is one the things that you are talking about. I indicated in my opening remarks that it may seem to water it down, but it leaves that overlying discretion with the judge.

I will point out one other matter when we talked about what other amendments can be made. In the impaired driving sections, it talks about the police ``may'' videotape the sobriety test and they ``may'' videotape what else is happening at police headquarters. That should be ``shall.'' If we are to rely on those tests and they are to be evidence and we are going to be intrusive, that ``may'' should be ``shall.'' It would read, ``They shall videotape those kinds of tests.'' It is certainly within the realm of possibility to do. If we leave it at ``may'' they will not be videotaped; if it is ``shall'' there will be no mistake as to how the person performed.

Mr. Di Luca: The permissible departure clause is not new. I did not dream this up or create it. This has been in use in England and in a variety of commonwealth jurisdictions, for example, in Scotland, Australia and South Africa. It acts as a safety valve. We can all sit around the room and posit hypotheticals that we would all agree are extremely manifestly unfair to the one person who is caught by the mandatory minimum.

We trust our judges to be in tune with local sentencing features and the needs of their particular communities. If you have something there that permits that safety release just in case, it will help from a constitutionality perspective. It is not unreviewable. You can add a clause in there that requires any judge departing from a mandatory minimum to give reasons for doing so, such that the appellate courts can then supervise and create principles for departures. If we to go down the road of mandatory minimums, which I suggest we should not, we should at least have that provision.

Senator Di Nino: I come from the city of Toronto. I have lived there longer than all or most of you have been alive. I used to brag about how great and safe our city was. You could walk the street at two o'clock in the morning and not have to worry.

The reason I support this bill is because that is not the case any more. When I go to international conferences, or travel as I do on my own, and talk about Toronto, I can no longer brag that I am not afraid to walk the streets any time anywhere. That is, in my opinion, one of the factors that has led to this legislation.

My question deals with dangerous offenders. As discussed a few moments ago, the consideration for a dangerous offender application only comes after an individual has committed three of the listed heinous crimes, crimes that we all would hope no one has ever been involved in. I refer you to proposed subsection 753(4) in the sentencing of the dangerous offenders.

I am not a lawyer but I understand that this is a new provision. It talks about the alternatives, the choices available for sentencing a dangerous offender even after he or she is declared a dangerous offender. There is, if I understand it correctly, a bit of a safety valve there. The hammer is not just of the same size or the cannon must not necessarily be used.

Do you agree with me that this is modifying or giving a choice to some degree to the judges when they are making their decisions?

Mr. Rady: You mean giving indeterminate sentences or definite sentences? It actually is the second reverse onus provision that is probably subject to challenge because the accused will have to show why he or she should not go for an indeterminate sentence, which is now the law and earlier was not the law. The judge had a discretion.

Our point is that people are dangerous offenders. They may be proven as such; they may be locked up indefinitely because society has to be protected absolutely. All we are saying is that before we make that designation, which is very serious, the onus should be on the Crown to do it, not on the accused to disprove it. That is the point.

Mr. Goldstein: With the greatest of respect, proposed subsection 753(4) is the government trying to codify Johnson. This adds nothing. Johnson requires this analysis in any event. It is what we call the ``Johnson curve.'' Unfortunately, it has become something of a crutch for judges who do not feel in a particular individual's case he should go to jail for the rest of his or her life. In such cases, the judge will declare the person a dangerous offender but will find the person to be salvageable under the tertiary ground of the long-term offender. Many of these LTOs are being imposed.

This is not a manifest change in law in any way. However, one possible reading of proposed paragraph 753(4)(b) is a concern because the minimum punishment of a term of two years could in this context be read as, I think it was the Court of Appeal talking in Roberts about the very few scenarios where an individual could be subject to a dangerous offender application but not a long-term offender. In other words, the person's past is such that he may or may not attract dangerous offender analysis but because the predicate offence is so minor he cannot attract an LTO designation. This may deal with that situation. This may also deal with the situations with the LTOs where people have spent a lot of time in jail waiting for their hearing. They went to preliminary hearing, to trial and to sentencing and now their time is up. If they are to be sentenced fairly, this may be used by the Crown attorneys to get two additional years, because they want to get the necessary programming in the federal system. So, 753(4), at its kindest and softest reading, is nothing more than an articulation of Johnson. At its most draconian reading it can impose unnecessary federal penitentiary sentences where they need not be any.

Senator Di Nino: That is also a question of interpretation as well. I do not necessarily agree, but I accept your argument.

When you talk about the reverse onus, surely, if someone has committed three times some of the worst crimes in the Criminal Code, the public at large would say that the person has lost the opportunity to a similar type of treatment to someone else who has not been such a very difficult person in society.

Mr. Goldstein: One of the main attacks that will happen on this reverse onus is that it does not say three separate heinous crimes or two separate heinous crimes before the predicate crime. It says two convictions, and two, three or four convictions can arise out of a single event resulting in multiple counts with multiple convictions. That has to be addressed, or what you will have is a scenario where an individual did something very bad, was properly convicted and properly sentenced; a significant period of time passes wherein that person has had who knows what changes to his or her life — this is not an extreme example; this is commonplace — and then for whatever reason has come back before the courts again, and now after this large gap is being treated not as an offender but as a dangerous offender.

I agree with you. I think everyone agrees with you. Certainly everyone who has children in the community agrees that crime has to be punished.

Senator Di Nino: Parents.

Mr. Di Luca: Parents agree with you. We all agree that crime has to be punished.

Senator Di Nino: My mother will not walk out any more.

Mr. Goldstein: That concern is not addressed here. For the fear of walking out on the streets, prevention is what you want to talk about, not punishment, and this talks about punishment. If you want to walk the streets safely, prevent the crime, deal with the social aspects of the communities where you are afraid to go, get whatever social programming has worked in Europe, get the police officers on every corner. Do not take individuals with two counts and tell that individual that he or she now has to prove that he or she should not be thrown in jail for life. It does not help street safety. It is not giving the judge the tools to look at every individual as an individual and do what we pay him to do, which is to judge the individual.

Senator Di Nino: I agree with you that laws, any kind of law, will never totally solve the problem. I agree they will not solve the problem. There must be the other track of prevention. The other issues must be addressed. No one disagrees with you but when individuals have abused the privilege of citizenship, he or she has to be treated differently.

Mr. Goldstein: Jail them, if they have done something. If it is a life sentence that they attract, let them get a life sentence, but do not start declaring people, and with this now you can declare some of the wrong people, when you have the alternative of incarceration, which is available in the Criminal Code.

Senator Di Nino: We obviously disagree.

Senator Watt: Welcome. That was very interesting and I was encouraged by what you had to say. First, I am not a lawyer and I am from the Arctic. The people that I try to represent as a member of the chamber of sober second thought are the Aboriginal groups, mainly the Inuit of Nunavik, which is part of Quebec. That is where I come from.

In your report, on page 14, you note that Aboriginal offenders are represented at the rate of 3,728 per 100,000, compared to the general population at 432 for 100,000 for non-Aboriginal offenders.

I would like to get some further explanation on this subject. What is the cost of this? We seem to be overpopulating the penitentiaries right across the country and unless a solution is found or the cost identified, maybe we are not going to have enough places within which to put certain people away, especially the minority groups as you highlighted quite well.

That is one question. It is sort of a general question on which I would like to hear more explanation from you. How are we going wrong and how will we rectify this matter? Like you, I would like to see my community be safer, but under certain circumstances at times the criminal is there and whatever we decide to do, even with some improvement, there is always another way for the criminal to keep on popping up.

In regard to the dangerous offenders, we have a number of Aboriginal people, as I said in my remarks, a high number occupying probably more than one-half of a particular penitentiary in Saskatchewan, for example. We have very high numbers and there is no doubt in my mind that those individuals are repeat offenders. Certainly that is the case in my area, the people that I know of, people I have spoken to, and the people I come in contact with and know well.

What will happen to people who already have two counts or three counts? Would this bill, if passed, retroactively would that apply to those people? Is this one point you are making, that the numbers will not decrease but certainly will increase? Could you elaborate on that?

Mr. Goldstein: The shortest answer to that question is yes, absolutely, there is nothing in this provision that says that only criminal convictions that arise after the passing of the bill count. In fact, it is quite the opposite; the idea is to capture people who have criminal records and so absolutely, that is a massive problem.

The dangerous offenders, as I was asked on the last occasion, will likely be disproportionately representing certain communities and that goes as you articulated to the first question, which is the root of crime. Unfortunately socioeconomics — and I am not able to speak intelligently there — I can say this provision of Bill C-2 presents as big or bigger a problem for minorities and the native community than it does for any other community.

Mr. Di Luca: It is clear; other countries have examined the fallout. In the United States the mandatory minimum sentencing has a very clear disproportionate impact on the Black and Hispanic communities. In Australia they have looked at it and mandatory minimum sentencing has been labelled as racist and discriminatory by the Aboriginal council, which also noted there a disproportionate impact.

We look at mandatory minimums on gun offences — weapons. When we picture weapons we picture a young kid in Toronto walking with a gun as jewellery, but I defy you to ask an Aboriginal person in the North whether a gun is a weapon because the answer will be it is not a weapon, it is a tool.

If we are criminalizing with mandatory minimum sentences people who use a gun as a tool, and maybe did not have the wherewithal to get the proper documentation, the licensing or who know what, or sold it to their neighbour, these are people who are getting mandatory minimum sentencing. If we do not think that the impact of that is disproportionate, then we are fooling ourselves because are we not really looking at an issue of moral culpability? While the moral culpability may be high in certain circumstances, the kid who brings in a handgun and shoots someone at a high school, in your circumstance, in the circumstance of the people you speak on behalf of, where is the moral culpability that attacks a mandatory minimum sentence of that nature? It may be entirely absent. If it is present, where is the linkage between the root cause of that criminality and curing it by sticking people away for five years at a time? I do not see it.

Mr. Rady: Also remembering that the Criminal Code applies uniformly throughout the country, to try to fix a big city problem might have different affects on people in the North. I am sure you know that when people in the North are incarcerated the distances that they have to go puts them a long way from their families and causes even more hardship and disparity.

Senator Watt: We certainly have a number of experiences dealing with those situations.

Mr. Rady: I believe 21 per cent of all dangerous offenders are Aboriginals.

Senator Milne: I am looking at the reverse onus sections of this bill, and I thank you Mr. Di Luca very much for this brief. You cover the problems with clause 42, the dangerous offenders part, where you say the only thing really that saved the dangerous offender provisions were the stringent criteria and the procedural safeguards that are in place presently. This was in the case in Johnson and in Lyons.

However, clause 42 of this bill takes them out. It takes away all that protected part that saved the dangerous offenders part of the present Criminal Code in those two cases.

What do you foresee happening on the first challenge?

Mr. Goldstein: There is always the scenario where bad facts can scare off good decisions and so there is a remote possibility that the first challenge will be unsuccessful at the trial level. However, it strikes me that a proper and comprehensive reading of Lyons first and then, after the changes to the legislation, Johnson, with these changes will be successful and will probably be successful in the first instance. Then the question is which Court of Appeal will uphold it first and ultimately, it is, there is no question, an issue of national importance, how quickly it will get to the Supreme Court. That is a very interesting and important question.

The corollary question, and the one that is of more concern for all the members of the communities that are represented here, is, okay, what happens in the meantime? As this passes, people will be declared dangerous offenders and should I be correct, and if falls, suddenly we have this massive influx of re-hearings.

Johnson created that to some small degree when a whole group of people were sent back for re-hearing because their respective sentencing judges had not considered the Johnson criteria. That was small. What happens when these provisions are actually activated and dangerous offenders are declared using these provisions? All of them are now suspect and they all come back. What will happen if Part XXIV as a whole falls? That is a possibility on a broader challenge with a differently constituted bench. We are then left in a massive vacuum with no dangerous offender legislation whatsoever and those people for whom it is properly aimed are not targeted. It strikes me that conservative, useful legislation is better than shotgun, dubious legislation.

Senator Milne: In this brief, you did not comment on the reverse onus questions in clause 37 of this bill. This is for the person who has been convicted of a gun-related offence, is out on bail and convicts another gun-related offence. You said that was tertiary. It seems to me that is not tertiary. What is your feeling about this clause?

Mr. Di Luca: In terms of that actual clause, there is an addition to the tertiary ground of the bail that is separately considered.

As a matter of practice on something like that, judges are already doing that. It is not that they are reversing the onus. When a judge sees someone in that position, they will already be inordinately cognizant in terms of what needs to be done in assessing bail for someone in a gun case. The flexibility that we currently vest, even in a bail decision, which is a constitutional right, must be maintained.

There will be varying cases in terms of moral culpability, gravity of offence and the background of a person that will go into an informed decision. If there is a need to turn around and say that we are being serious on gun crime, judges have that message and know what will happen in those cases.

We do not have a magic box through which we can predict which person that is let out will reoffend. We do not have that capability. Yet, we have a constitutional principle that you are entitled to reasonable bail. I think that needs to be respected. In the provision, they go too far in that regard.

Mr. Goldstein: This is a perfect example of broad-based legislation not taking into consideration the communities in particular. Toronto, I understand, has certain gun problems. Ottawa, the city in which we sit right now, if I understand it correctly, is the knife homicide capital of Canada. When bail hearings are run here, the justices of the peace react to the presence of a knife with the same degree of concern as the presence of a gun. That is because the justices of the peace are members of the community and they recognize the dangers of the community. When it is legislated that you must be concerned about this or that — guns or whatever — you must understand that the justices of the peace walk these streets as well. They know the concern of the community. For example, in Ottawa it is not guns, it is knives. This does not address that issue.

Senator Milne: This is a comment because since Senator Carstairs had to leave. With respect to the age of consent, it seems that this bill is leading to a ridiculous situation where, by raising the age of consent to 16 years, it is creating in some areas of Canada, the fact where a 15-year-old is not allowed to kiss someone who is five years older, plus two days; however, they can marry them, which seems to me to be very peculiar. They can also marry them in other areas of Canada if the woman is pregnant. Excuse me, but how did she became pregnant other than by Immaculate Conception? No one is allowed to touch her, let alone kiss or hug her.

I think this age of consent business is very ridiculous. It will create impossible situations.

Senator Andreychuk: I found it rather curious that you would say, Mr. Rady, that passing laws on drug impairments should not be done until society is ready and that it is a cultural and educational thing that people do not believe we should be on the roads impaired. Smoking cessation was a combination of education, culture and the laws. We passed all kinds of laws and we used the laws as denunciation, deterrence, education, and so on, to say it was not acceptable. We had all kinds of laws; we restricted young people from purchasing cigarettes; we put taxes on them. We used all kinds of legal legislation as a tool for society.

Would you not agree that the Criminal Code would be one tool in trying to address impairment in the community? Sometimes the law leads and sometimes it is one off.

Mr. Rady: Smoking started going down when smoking advertising on television and in magazines was not permitted. That is a law to say you cannot do it. It was glorified, for example, with the Marlboro man on pictures, and so on. It was a change in the way of thinking. There was a law to do that, but it was not a punishment law as much as a prohibition from advertising cigarettes on television or in magazines. Actors in movies tend not to smoke anymore. There are still regulatory offences in terms of smoking. For example, you can not smoke in this place or in that place. There are still smokers, but they have been ostracized by having to smoke outside. It is not socially acceptable.

To answer the second part of your question, yes, within the criminal law you can do things to make things socially unacceptable. In criminal law, the offences and things talked about in Bill C-2 are already there in saying things are not socially acceptable. This may be seen as a beef up in the regulations but when this law passes, at that point or a month later or two months later to think that you can safely walk down the streets of Toronto and the thing is solved will not happen. We need more than that. There must stop this glorification of gun use.

We will get into all sorts of social issues here as to what people see on television and what is promoted as being something that is good, and there are the movies such as The Fast and The Furious — I will not go there. There is more to it than just this. That is what I am trying to say. We have to get to that socialization.

Senator Andreychuk: Certainly the minister did not present Bill C-2 as the answer to the problems within it. It is a cornerstone of what they are using, but I specifically asked the minister about preventive measures, for example, community policing, preventive sources, non-governmental agencies and others working towards these problems. The criminal Bill C-2 was a significant cornerstone of attacking this problem.

I found it interesting that on impairment you thought that it should not be. We wait until it is something on society and then pass a law? We will agree to disagree.

Senator Joyal: I would like to go back to the brief of the Criminal Lawyers' Association. On page 16, you discuss some safety mechanisms.

Could you explain to us the substance of the recommendation, which is to ask us to include in Bill C-2 a clause that would provide a review of the provisions of the mandatory minimum sentences after a term of five years? Are there not other parts of the bill that should also be the subject to review after five years?

Mr. Di Luca: If we accept for a minute the proposition that mandatory minimum sentences will reduce crime, and I do not see it yet in the research that the Department of Justice has put out, but other sources as well, and say, let us test it, then my position is, let us meet again here in five years and ask the Department of Justice and academics to come back and report to this committee and see what has changed. If I had to bet a dollar on it, it would be that the mandatory minimum sentences have not worked. We all know that once rights are lost, they are hardly ever regained. If we can at least time limit something like this, we can come back in a rational context and look at the evidence.

Quite frankly, I think that provision should apply across the bill. There are various sections that it could apply to, such as the dangerous offender provisions or the impairment issue. Let us come back to see if this is making a difference. On the impairment by drug, I do not even know the scope of the problem to begin with. We are left in the dark. It is hard to see where we would be in five years. With respect to mandatory minimum sentences, we can come back on this. It is a question of engaging the proper people to come back and report. It has been done in other legislation, such as the DNA provisions. There is a mechanism out there that could deal with this.

Senator Stratton: I would like to go to the deterrence side to which Senator Andreychuk referred. The government has, in essence, put money on the table for more tools on the ground with respect to police. That is to be respected, and we hope it will happen quickly. It is happening quickly. The other side is preventive measures with respect to drug crime or prevention. Those two things, coupled with this bill, are the three-legged stool that will provide stability.

Mr. Rady said that we need more study and we need more information. People will ask, ``For what?'' Mr. Goldstein and I hate to repeat this, but when they hear ``the system is working'' and there are gangs in Winnipeg, you know it is not working. Mr. Di Luca said that this proposed legislation would not reduce the problem in any significant way. However, the public's reaction will be, ``If we can get one of those guys off the street with this bill so he or she cannot do that again, I am all for it.'' You can see the visceral reaction on the part of the citizens of my city that will say ``pass this bill.'' With the other two legs of that stool, would you not think that is worth doing?

Mr. Rady: No and I will tell you why.

Senator Stratton: That is okay. I did not expect you to say ``yes.''

Mr. Rady: This bill is all encompassing. The dangerous offender who you want off the street will get off the street with our current dangerous offender legislation. If they are dangerous, the Crown can bring that application and they can do it. Why have they not done it? They have not done it because it is costly and time consuming. All we are doing it shifting it over to the accused to make it easier. The prosecution has the tool to do it now. The punishment for gun crime is there now. The punishment for sexual predators is there now. We had a problem or what seemed to be a problem of alcohol consumption, so they created prohibition in United States and Canada. That did not work particularly well.

You can say that the public will feel better about this bill, but there must be some in promoting things like this to say, ``What will it really do?'' When I say we need more study, the legislative study done by Parliament says it does not show that there will be any kind of deterrence to gun crime. I did not write that; that was written by the Department of Justice, the prosecution side, the way I would look at it. If they are saying that, do we not need to know more? Why are we doing something if it will not have an effect? That is the issue. It is effectively cosmetic. We will create a thing and say we will have this tough on crime bill and use all the right words and push all the right buttons and people will say we are doing something.

It is across all parties. We can see the debates in the House. I am not saying the Conservative Party is supporting this and not the Liberals or NDP, the Bloc to some extent. There is a lot of party support to this. It is non-partisan. It is very easy to say, ``Let us get tough on crime.'' No one will get elected by being soft on crime. No one will get elected by being reasonable on crime. It is seen as a political measure. We are saying this will last longer than the politics of the situation. We really want a true answer to these issues on crime. Let us be honest about it. We cannot ourselves determine from the information we have now with this bill that it will have the effect you think it will have, and we are saying we do not think it will have that effect on crime and it may increase injustices. We may agree to disagree on that, but we see the clients out there when they come to our offices, and we see what goes through their mind. When we see our clients, we realize that they are not thinking about whether there is a mandatory minimum sentence.

Mr. Goldstein: If I can ask you a question myself: Would you be willing to go back to Winnipeg and say, ``Let us pass it to get that one guy off,'' and tell them the $60,000 it took could be spent on a drug treatment program that would prevent five crimes?

Senator Stratton: We have been there. That is the problem. The public says, ``We have been there. It has accomplished nothing. It is getting worse.'' That is what their reaction would be.

The Chair: This has been and will continue to be a fascinating journey, including expert input and vigorous debate.

Senator Milne: On a point of order, I understand that the Conservatives have called for a confidence vote on the crime bill this morning in the House of Commons.

The Chair: I believe they tabled a notice of motion.

Senator Milne: They tabled a confidence motion.

The Chair: I would await with considerable interest the views of parliamentary authorities on the acceptability of such a motion, but it is a motion in the House of Commons and not in the Senate, and certainly not in this committee. I do not think you have a point of order, Senator Milne. As a point of information, it is indeed fascinating.

I thank all of our witnesses. You have been with us for a long time. This has been a long session. It has been very interesting and constructive for us. We are extremely grateful.

The committee adjourned.

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