Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence, June 17, 2009
OTTAWA, Wednesday, June 17, 2009
The Standing Senate Committee on Legal and Constitutional Affairs, to which
were referred Bill C-39, An Act to amend the Judges Act; and Bill C-14, An Act
to amend the Criminal Code (organized crime and protection of justice system
participants), met this day at 4:03 p.m. to give consideration to the bills.
Senator Joan Fraser (Chair) in the chair.
The Chair: Welcome to the meeting of the Standing Senate Committee on
Legal and Constitutional Affairs. We shall begin with consideration of Bill
C-39, An Act to amend the Judges Act. We have the particular pleasure of
welcoming as our witnesses two ministers of the Crown, the Honourable Chuck
Strahl, P.C., M.P., Minister of Indian Affairs and Northern Development and
Federal Interlocutor for Métis and Non-Status Indians; and a familiar witness
before this committee, the Honourable Rob Nicholson, P.C., M.P., Minister of
Justice and Attorney General of Canada.
Ministers, have you decided who will go first?
Hon. Rob Nicholson, P.C., M.P., Minister of Justice and Attorney General
of Canada: We have. I will make opening remarks and then turn it over to my
I am pleased to be here today to discuss an amendment to the Judges Act. You
will see that we are proposing to amend a single provision of the Judges Act,
section 16(d), which authorizes the appointment of judges to the Manitoba
Queen's Bench. Presently, this section provides for the appointment of 30 judges
to the court. Our amendment would increase by one the number of judges that may
be appointed to the Queen's Bench of Manitoba. We are bringing forward this
single-provision amendment specifically to support the implementation of the
Truth and Reconciliation Commission.
As Minister Strahl will explain, a sitting judge of the Manitoba Queen's
Bench has been recommended for appointment as chairperson of the Truth and
Reconciliation Commission. The judge could take a leave of absence from his
judicial duties pursuant to section 56 of the Judges Act in order to take on the
role. However, a leave of absence does not create a vacancy on the court. His
appointment would, therefore, leave the Manitoba Queen's Bench one judge short
for the duration of his term, with no possibility of replacing him. This would
have a correspondingly detrimental impact on the court's daily operations.
The proposed amendment to increase the complement of the Manitoba Queen's
Bench by one judge will permit the government to appoint a new judge to the
Queen's Bench to ensure that the court remains at full capacity during the
absence of the chairperson.
Hon. Chuck Strahl, P.C., M.P., Minister of Indian Affairs and Northern
Development and Federal Interlocutor for Métis and Non-Status Indians: Madam
Chair, thank you for giving me the opportunity to appear before the committee
with the Minister of Justice to talk about Bill C-39.
I appreciate the committee's willingness to review the proposed legislation
swiftly and thoroughly. Before I begin my remarks, I should introduce the
officials who are with me at the table today. They are Caroline Davis, Assistant
Deputy Minister, Resolution and Individual Affairs; and Aideen Nabigon, Acting
Executive Director, Truth and Reconciliation Commission Secretariat. I thank
them both for their work on this file.
Bill C-39 proposes what we think is an effective solution to a problem
related to the Truth and Reconciliation Commission. As the members of this
committee recognize, the commission got off to a difficult start. While the
Truth and Reconciliation Commission is not mentioned directly in Bill C-39, the
legislation will help get the commission back on track.
Bill C-39 proposes to amend the Judges Act to enable the appointment of an
extra judge to the Court of Queen's Bench of Manitoba. This appointment would
pave the way for the Honourable Justice Murray Sinclair to start work as the new
chair of the Truth and Reconciliation Commission, and he can do this without
disrupting the work of the Court of Queen's Bench of Manitoba.
All parties to the Indian Residential Schools Settlement Agreement have
already endorsed the appointment of the Honourable Justice Sinclair. However,
the appointment leaves the court with less than a full complement of judges, a
circumstance that would compromise the interests of Manitobans. This is
unacceptable. Bill C-39 will resolve the problem by facilitating the appointment
of a replacement to the court. It would also mean that the Truth and
Reconciliation Commission can start its vital work.
The Truth and Reconciliation Commission is needed to help Canadians
understand this sad chapter of our history and how it is still affect today the
The Indian Residential School system left an indelible stain on Canada's
history. While we must never forget the past, we can lessen the negative impact
it continues to have on all Canadians. By bringing the past to light, the
commission will help Aboriginal peoples to deal with our past in an honest and
caring way. What is more, the commission will help all Canadians focus on
healing, compassion and a more positive future.
Madam Chair, this is precisely the purpose of Bill C-39. I encourage the
committee to review the proposed legislation in a prompt and effective manner,
as is your custom. I thank you for your attention to this in such a timely way.
I believe it is in the best interests of all Canadians that we proceed as
quickly as possible.
The Chair: Thank you very much.
Senator Nolin: I have only one technical question. In principle, we
all agree on finally having a judge who will chair the commission. Mr.
Nicholson, will this increase be a temporary measure for the time of the
commission, or will it be a permanent increase?
Mr. Nicholson: As it stands now, it would be a permanent increase. We
can revisit the matter in five years, but there may be other pressures that we
will reconsider at that time.
Senator Nolin: When Justice Sinclair finishes his responsibilities as
chair of the commission, there will be a net increase of one judge on the bench.
Mr. Nicholson: Unless the matter is revisited at that time, yes, but
we will take it one step at a time, senator.
The Chair: Justice Sinclair is the second person to be appointed from
the bench to preside over the commission. I understand that in the first
appointment it was not necessary to present legislation like this. Could you
explain why that is?
Mr. Nicholson: At the time Justice LaForme was appointed, there were
what is known as two pool positions, or two extra positions at the Ontario Court
of Appeal. Therefore it was possible to do that without making any amendments to
the Judges Act. However, in this case we do not have that ability. We do not
have pool positions that we can add to the Queen's Bench of Manitoba.
My colleague and I discussed this on a number of occasions and felt that this
was the most expeditious — and frankly, the only way we thought that we could
deal with this situation and have this individual appointed. It was different
with Justice LaForme inasmuch as the pool positions allowed us to appoint up to
two extra members of the Court of Appeal. Therefore we could appoint him, and we
could have appointed another person to the Ontario Court of Appeal within the
Senator Milne: Ministers, Senator Nolin asked my question, but I am
concerned about the internal misunderstandings that caused the previous
difficulty and what steps the ministry is taking to ensure that everyone knows
clearly what their role is this time around.
Mr. Strahl: That is a good question, and one we spent quite a bit of
time to resolve from the time when the first commissioners had resigned and the
appointments we put forward recently.
All the parties to the settlement agreed to sit together, with Justice
Iacobucci as facilitator, to go through those issues, going through a selection
and interview process where they gathered nominations for the positions of both
chief commissioners and the other roles. They also agreed, with the secretariat,
to go through the role of the chief commissioner and other commissioners and
their relationship with one another, whether or not this person should maintain
the role of deputy head, which is more of a technical role, and so on. All those
issues were discussed at length and codified with the facilitation of Justice
Iacobucci. It was a good process. At our first iteration of the commission, the
language seemed straightforward. However, clearly, when it came time to play
out, when it came time to look at how it actually works, we needed more detail.
That detail has been put forward and agreed to by all the parties to the
That was explained during the interview process with the potential
commissioners, and everyone seems very pleased with that degree of detail, which
takes any of the question marks out of how the relationship between
commissioners works and how the relationship works between the commissioners,
the secretariat, the public service and me. That is all clearly described in a
way that assures the Truth and Reconciliation Commission of independence, which
is extremely important if we are to get a report that is respected by all
participants, but at the same time ensures that the nuts and bolts of it all —
administration, who answers to whom, all those sorts of details — need to be
sorted out in more detail.
I am convinced, as are the other participants who worked with Justice
Iacobucci, that those details are now in place. The commissioners include
Justice Murray Sinclair, who has experience as a commissioner of an inquiry, so
he knew what he was looking for as well. Everyone seems satisfied that the work
done has put those questions to rest.
Senator Milne: How long do you anticipate the whole process to last?
Mr. Strahl: The original agreement called for five years from the
launch of the original commission, but of course a year has passed. There has
been some work in the meantime. The secretariat has been set up; many of the
frameworks for how meetings may take place, and so on, have been developed, as
have many services to survivors.
What I expressed to the commissioners was a willingness to extend it to five
years instead of four, but also to work with them as they go through this
process. They may want to table their final report earlier. If they want to do
that, it is up to them. They have a lot of independence, and we wanted to ensure
that that independence was obvious from the start.
Certainly they have up to five years but, again, it is up to them and I do
not want to be prescriptive. It will not be my commission to run; it will be up
to the commissioners to table their final report when they feel the work is
Senator Wallace: Mr. Strahl, this is not so much a question as a
comment. I want to commend you for the Truth and Reconciliation Commission. The
work is obviously very valuable and needed and, as you said, it is time to get
the commission back on track. This is — I am sure for all of us here and for you
— very good news, as was the apology made by the Prime Minister last year; both
of those things together. It is time to get on with it, and I am sure you feel
the urgency, as do we. Let us get moving and get things back on track, as you
Mr. Strahl: Absolutely. Thank you.
The Chair: That was a comment, not a question.
Senator Wallace: I think it ended with a question mark.
Mr. Strahl: The only thing I would add is that it was not lost on many
of us that this year, on the anniversary of the apology, the Assembly of First
Nations proposed that we have a day of reconciliation as opposed to a day of
action, or protest, or whatever else might have been in works. That is
It does not mean we can delay — we want to get on with reconciliation — but
it was significant to me, and not lost on others, that the National Chief and
many others said reconciliation, and we must put the actual legs to this now. I
thought it was significant, on the anniversary, that the culture, if you will,
has changed to: Let us talk about how to move towards reconciliation. All
Canadians need to put their minds to that, not just Aboriginal people. We all
need to put our minds to what that might look like. That is why the
commissioner's report is much anticipated, because it needs to find the truth of
what went on during the residential schools era but move to reconciliation, as
you say, as a change of culture between two peoples.
The Chair: I have a couple of questions for you, Mr. Nicholson. The
first is purely technical. When a judge goes off to head a commission of
inquiry, who pays the judge's salary at that point? Does the judge get to
collect two salaries, or how does that work?
Mr. Nicholson: That is a good technical question. He does not get two
The Chair: That is helpful.
Mr. Nicholson: He does not get two. He is paid as a judge. My
understanding is that it is the same as what he is getting paid now, as a member
of the Queen's Bench. I think that is the way it works. It is a
The Chair: This is perhaps a little more speculative. Given that, as
the legislation is written, this would be a permanent expansion of the bench in
Manitoba, which you have noted could be revisited in five years' time, could we
take it as a modest indication that, in your thinking, it is not a bad thing to
have more judges available?
Mr. Nicholson: I was here on another amendment to the Judges Act where
we increased the number of judges. Generally, as the country expands in
population and there is an increase in litigation, it makes sense to have more
judges. You are correct; this is the second time I have been before this
committee proposing legislation that increases the number of judges and, on both
occasions of course, I support that.
In terms of salary, he would be paid under the Judges Act as the head of this
Senator Milne: In your presentation, you say that once the new
commission is appointed you will be ready to move forward with scheduling the
first national event and other TRC mandate activities. I understand "other TRC
mandate activities,'' but what do you mean by "the first national event''?
Mr. Strahl: The commissioner's mandate includes holding major events
across the country and a series of other events as is seen fit.
Aideen Nabigon, Acting Executive Director, Truth and Reconciliation
Commission Secretariat Canada, Indian and Northern Affairs Canada: As the
minister said, under the mandate of the settlement agreement, the TRC is
required to hold seven national events.
Senator Milne: Do you mean public meetings rather than national
Ms. Nabigon: Yes, public meetings with national and international
media, and Aboriginal people and non- Aboriginal people. Survivors of
residential schools will tell their stories. Other Canadians will hear them and
be educated about what happened, which will start the process of reconciliation.
There is also a requirement to hold community events, which will be smaller
but probably with less media. It could include one to four communities.
Senator Milne: You will probably get more feedback at smaller events
rather than where there is a lot of hoopla and media.
Ms. Nabigon: Yes.
Senator Milne: These people are rather retiring about what happened to
Ms. Nabigon: That could be. The intention is that the national events
will be big and a little splashier, with media. We must remember that this is
also about reconciliation. The community events may be more, as you say, about
survivors telling their stories, always in a very safe and respectful manner. We
are aware of the need for health supports and protection of survivors. That is a
different issue when there may be national and international media, so the two
fora will have a different flavour. They will all be about furthering the goal
Senator Milne: Do you anticipate further help for survivors?
Ms. Nabigon: Further help in terms of support?
Senator Milne: Yes, helping them come to grips with their personal
Ms. Nabigon: Yes, that is extremely important. We are working with
Health Canada and the Aboriginal Healing Foundation. Regional and community
groups are already providing support of that type to survivors, their families
and their communities to ensure that they are well protected and that there is
lots of health support in place when they tell their stories. It could be
extremely traumatic. Some survivors will be doing this for the first time.
Some survivors have been telling their stories for a long time. Their stories
are horrible, but they are at different places in the healing journey. Those are
the people whom we may try to get before national and international cameras,
because they may be better prepared to do that than someone telling their story
for the first time.
Mr. Strahl: The Aboriginal Healing Foundation has published their
second book with some stories they have already gathered and some experiences on
reconciliation. I spoke to the director the other day and he said that they had
requests for 11,000 copies of the first edition of this book, I believe. The
second edition came out only this week.
If people are interested in getting a flavour of what is possible in this
journey of reconciliation, I recommend going to the website of the Aboriginal
Healing Foundation to check out this book, and possibly even order one. It is
not an easy read in that it is a difficult issue, but it is well done. For those
who want to get a jump start on the hearings, that is a good primer.
Senator Milne: Madam Chair, I apologize for taking us off the subject
of the bill, but it is important to get some of these things on the record.
The Chair: It is important for us to understand why we are doing what
we are doing, and this committee does not often get the Minister of Indian
Affairs and Northern Development and Federal Interlocutor for Métis and Non-
Status Indians as a witness.
Mr. Strahl: I have the biggest title in the cabinet.
The Chair: We are very grateful to you both, Ministers, and to the
officials. Thank you very much. This has been most helpful.
Colleagues, is it agreed that the committee proceed to clause-by-clause
consideration of Bill C-39, An Act to amend the Judges Act?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Hon. Senators: Agreed.
The Chair: Agreed. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Carried. Shall the title carry?
Hon. Senators: Agreed.
The Chair: Agreed. Shall the bill carry?
Hon. Senators: Agreed.
The Chair: It is agreed. Does the committee wish to consider appending
observations to the report?
Hon. Senators: No.
The Chair: Therefore, is it agreed that I report this bill to the
Hon. Senators: Agreed.
The Chair: Thank you. I shall do so at the sitting tomorrow.
The Chair: We shall now proceed with the study of Bill C-14, an Act to
amend the Criminal Code (organized crime and protection of justice system
We have the great pleasure of welcoming again the Honorable Rob Nicholson,
M.P., Minister of Justice and Attorney General of Canada.
Welcome back, Mr. Minister. We are delighted to have you here. I believe that
you have a statement to make on the next bill on our agenda, Bill C-14, before
proceeding to questions.
Mr. Nicholson: I am pleased to be here with Matthew Taylor from the
Department of Justice. I appreciate him appearing with me.
Thanrk you for the invitation to appear before you to discuss Bill C-14. As
you know, the bill proposes important amendments to the Criminal Code to respond
to the problems of violence and intimidation perpetrated by organized crime,
including street gangs.
I appreciate the wide support that I have received from all parties on this
bill combating the disregard that organized crime has for the safety and
security of our citizens. The harm that such groups commit unites us in purpose
and truly transcends partisan politics.
The support that this bill has enjoyed in the house mirrors the unanimous
support that the proposals received from provincial and territorial counterparts
as well as members of the law enforcement community.
Bill C-14 focuses on four main areas. First, it proposes to make all murders
linked to organized crime automatically first degree, regardless of whether they
are planned and deliberate. Section 231 of the Criminal Code classifies murder
as either first degree or second degree. Instances where murder is classified as
first degree include murders that involve specific victims, for example police
officers; murders committed during offences of domination, such as sexual
assault; and murders committed during the commission of specific explosive
events, as on behalf of a criminal organization. Bill C-14 proposes to amend the
classification provision pertaining to organized crime by broadening it to
include all murders that can be linked to organized crime, thus making them all
first degree murder.
The amendments focus on the link to organized crime and the inherent danger
that organized crime activity poses to the public in two ways. First, if it can
be established that the murder itself was committed directly for the benefit of,
or at the direction of, or in association with a criminal organization then it
will be classified as first degree murder, even if it cannot be shown that it
was planned and deliberate. Thus, even if the murder is relatively spontaneous
but was instigated or committed to benefit a criminal organization, it will be
first degree. Second, if it can be established that the murder occurred while
the person was committing or attempting to commit another indictable offence for
the benefit of, at the direction of, or in association with a criminal
organization then it will be classified as first degree murder.
It should be clear that we are not raising cases of manslaughter to murder or
creating some sort of constructive murder provision. Rather, we are concerned
only with those who have first been found guilty of murder. After all, these
subsections are first and foremost sentencing provisions. The general trend that
we have observed is that the rates for gang homicides, including gang murders,
continue to increase. Such violence poses a particular and deadly threat to
those embroiled in gang activity but also to the public more generally. We must
denounce this activity in no uncertain terms.
The second proposed area of reform is focused on the issue of drive-by or
other similarly reckless shootings. This offence is concerned with the criminal
intent of the offender and not the specific consequences of their actions. It
punishes those who deliberately turn their mind to the fact that their actions
will put the lives of others at risk and, appreciating the risk, go ahead and
shoot anyway. I find such disregard for others deeply disturbing, as I am sure
Bill C-14 sets an appropriate punishment for this type of offence. The
offence would be punishable by a mandatory penalty of at least four years'
imprisonment and a maximum penalty of 14 years' imprisonment. The minimum
increases to five years if the offence is committed for the benefit of, or at
the direction of, or in association with a criminal organization. In addition,
repeat offenders who have used a prohibited or restricted firearm or committed
the offence for the benefit of organized crime would be subject to a mandatory
seven year imprisonment. This penalty scheme is consistent with other serious
offences involving the use of firearms in the Criminal Code and responds to this
behaviour with appropriate penalties.
We are also taking steps to fortify the Criminal Code's treatment of attacks
against police and other peace officers by adding two new specific offences to
respond to very serious assaults. The first offence would address the assault of
a police officer that involves a weapon or causes bodily harm. This would be a
hybrid offence punishable by a maximum of 10 years' imprisonment. The second
offence would address the aggravated assault of a police officer or peace
officer. This would be a straight indictable offence punishable by a maximum of
14 years' imprisonment. Taken together, these two offences, along with the
existing offences of common assault against a peace officer and first degree
murder of a peace officer, would create a complete and separate scheme within
the Criminal Code to respond to violence against peace officers carrying out
their duties. It should be noted that these amendments would also address
assaults on the entire class of peace officers, not just police officers but
including prison guards, wardens and border, Coast Guard and Fisheries officers,
to name a few.
We are also codifying a principle that when courts are sentencing an offender
for any of the offences targeting assaults against peace officers, they must
give primary consideration to the principles of denunciation and deterrence.
This would apply to cases involving the intimidation of justice system
participants, a class that includes judges, Crown attorneys, jurors and many
others who play a role in the criminal justice system. This conduct is expressly
designed to undermine the rule of law in the criminal justice system as a whole
more broadly, and it must be strongly denounced.
Lastly, passage of Bill C-14 would strengthen the use of the gang
recognizance provisions, or what is commonly referred to as the gang peace bond.
A peace bond is a preventive tool aimed at preventing the commission of an
offence. These amendments make it clear that judges issuing such an order can
impose any reasonable conditions they feel are necessary to secure the good
conduct of the defendant. The amendment would also extend the possible length of
an order up to 24 months if the defendant had been previously convicted of a
criminal organization offence. We anticipate that these amendments will help
address the behaviour of those suspected of engaging in organized crime
behaviour and hopefully assist in preventing this activity from occurring in the
Indeed, I am aware that the Toronto police have had success with the use of
these orders in curtailing street gang activity, which enables them to monitor
the activity of street gang members and charge with breaches of the orders when
that becomes necessary.
I urge all honourable senators to continue to work in a spirit of
collaboration and move these amendments to their enactment as law as soon as
The Chair: Thank you, Mr. Minister.
Senator Nolin: Thank you for appearing before us, minister. If my
memory serves me well, in the previous Parliament, in Bill C-2, you introduced,
among other things, mandatory minimum penalties for serious gun crimes.
Mr. Nicholson: Yes, we did.
Senator Nolin: You are doing the same thing in Bill C-14. My first
question would be, how will this array of serious gun-crime criminal infractions
Mr. Nicholson: These are in addition to what we now have. You are
quite correct that in Bill C-2, the Tackling Violent Crime Act, there are
specific provisions whereby people who are convicted of a list of serious gun
crimes can expect to receive, quite apart from the maximum, a minimum of five
years' imprisonment if they are convicted for the first time. If they do not get
the message the first time, they get again the benefit of seven years the second
time as a minimum. The judges, in their discretion, can increase that sentence
depending upon the seriousness of the offence. We have here an addition to that,
and these are what we call the drive-by, reckless shootings. They are in
addition, but they complement the provisions we have already enacted with
respect to gun crimes. In my opinion, they send out the right message to people
that if you are reckless, if you try to use a firearm for illegal purposes or
with disregard for the safety of others, there is now a whole wide range of
penalties within the Criminal Code specifically directed towards that, and there
are serious consequences.
Senator Nolin: You said in your opening remarks that you had extensive
consultation with your colleagues from the provinces.
Mr. Nicholson: Yes.
Senator Nolin: Have they reported to you the occurrence of such
situations, and how widespread is the problem?
Mr. Nicholson: The problem with gangs, which is what we are referring
to, is increasing. While homicides have either levelled off or, in some years,
actually decreased, the number of gang-related murders is up in this country,
and now they account for approximately 20 per cent of the murders in this
country. Believe me, I hear about it all the time. I do not have to tell you how
challenging this is right now in British Columbia and about the problems they
are having with gangs, drugs and guns. It has certainly been welcomed by my
counterparts in British Columbia.
Again, we raise these matters in all my meetings with provincial and
territorial Attorneys General, and they are very supportive.
Senator Nolin: My question was, of course, about gang crimes but was
more specifically focused on the new section 244.2, to the extent that
infraction is happening in Canada. That is the discharging of a firearm,
Matthew Taylor, Counsel, Criminal Law Policy Section, Department of
Justice Canada: One of the challenges that currently exists is with the
drive-by shooting offence, or this type of activity. There are any number of
different Criminal Code provisions that might be used to criminalize and punish
those who would engage in drive-by shootings or reckless shootings. We have, for
example, section 86, which is a negligence-based offence. It is not really
appropriate for this kind of behaviour, however, because what you have there is
the inadvertent discharge. That could cover a wide range of behaviour.
As the minister has pointed out, what we are interested in is the person who
intentionally shoots a firearm, appreciating the risk that they pose to the
public. We do not have those statistics. I can tell you, though, from an
officials perspective, that just the other day a colleague from the Government
of Manitoba contacted us to indicate that they were again experiencing a wave of
these types of shootings, so we do know they are happening.
Senator Nolin: Minister, this is not the first time that you are
reintroducing minimum punishment. Are you convinced it will achieve the
objective of protecting Canadians?
Mr. Nicholson: It is part of what we are trying to do. The
administration of justice, as you know, for the most part is conducted at the
provincial level so we are one component of this, but certainly we want to send
out the right message.
When I introduced mandatory prison terms for people who commit serious gun
crimes, I did have one member of the House of Commons point his finger at me and
say that I did not appreciate that many of the people who commit these crimes do
not appreciate the consequence of their actions. I told him that this is where
we want to help. I want to help these individuals and make sure that they get
the message. Certainly, whether an individual gets four, five or seven years, it
gives that individual the opportunity to reflect on the seriousness of his or
I would be afraid of the individual who commits a serious crime and gets sent
home. Unfortunately, that would send out the wrong message because ultimately we
want these individuals to straighten around their lives; we want them to be
rehabilitated and become productive members of society. At the same time, we
want to send out the correct message to them that this is very serious activity.
We are one part of it at the Department of Justice, with respect to the
Criminal Code changes you have before you, but I realize that this is in a
larger context. This is why I always consult carefully with Attorneys General,
and I always welcome their input and that of law enforcement agencies, members
of the legal community and members of the general public. I am pleased that,
everywhere I go, people approach me and say, "Here is what you have to do. Here
are my thoughts on this.'' I have welcomed that in the two and a half years that
I have been Minister of Justice.
Senator Campbell: I find myself on the horns of a dilemma in this
committee. I am a police officer by training, so I hear the whistling of Hang
'em High in the back of my head, and I recognize the reality of the
My first question is with respect to gang involvement. I have been involved
in a number of conspiracy investigations, and they are incredibly difficult.
They are tough to get to court; they are tough to prove. I have never been
involved in proving someone is in a gang. I wonder if that also will be a
difficulty. Conspiracy is tough. Will it be tough to prove that these people are
Mr. Nicholson: Each case turns on its own particular facts, senator.
Obviously, any time we convict anyone under the Criminal Code, we must be very
careful. As you know, in our system there is a very high standard. Proving
someone guilty beyond a reasonable doubt is a high standard, and appropriately
so, because we are taking away the freedom of an individual and, quite frankly,
stigmatizing an individual with a criminal record. It is appropriate that there
should be this high standard.
That being said, we provide the tools within the Criminal Code. There have
been provisions with respect to organized crime for quite some time. If it is
ever raised with me that these are problematic, again I would look into that,
but I believe these are appropriate and reasonable additions.
Senator Campbell: I certainly am not arguing with the appropriateness
of these provisions. My concern is on the ground. How tough will this be for me,
as a cop during an investigation, to prove? The crime is not bad, I can get that
done; the problem is going to the next step.
Mr. Taylor: It is a difficult question, and it is one that does come
up quite often, first off. There are mixed opinions on what the appropriate
response is. Some have argued that proving a criminal organization is difficult.
It is time- intensive, as the minister has said; facts are complicated, and
these are lengthy cases. In other cases we have heard prosecutors explaining
that they are comfortable with the definition of criminal organization. As all
senators know, the amendments from 2002 modified the definition and in some
respects it is still relatively new.
We are getting jurisprudence, including out of British Columbia, where Crown
prosecutors are successfully establishing the existence of criminal
Senator Campbell: My second question is with regard to the charge of
assaulting a police officer. Assaulting a police officer has always been
considered very seriously by the courts. When I look at this legislation, I am
trying to come to grips with it. Why do you not just take out 270, which is the
assault provision, and replace it with 270.01, which you are adding here? From
my point of view, the only difference I can see is an actual increase in the
penalty limit. When I look at the charges in that clause, certainly I do not see
a large difference there. Could you explain that to me?
Mr. Nicholson: In my opinion, there was a gap in the Criminal Code.
There was a specific provision of assaulting a police officer, and then the
murder of a police officer. We wanted to have the aggravated assault provision,
the two extra provisions so that there is a complete regime of the aggression
that is directed towards a police officer, so with that clause we cover it all.
I will turn it over to Mr. Taylor to answer as to why we did not take out one
section and put in the other. It is a technical question, but from my point of
view I supported the complete coverage of police officers in a separate regime
to send out the message of how inappropriate and how disgusted society in
general is when peace officers are attacked in this country.
With respect to your technical question as to why we did it that way, I will
turn it over to Mr. Taylor.
Mr. Taylor: It is relatively straightforward, as Minister Nicholson
has said. With the creation of the two new offences, the assault of a peace
officer with a weapon or causing bodily harm or the aggravated assault were
just, as the minister said, filling the gap. If we were to remove the existing
provision, we would not have that low end assault provision addressing peace
officers. We would have the general assault scheme, but that would not be
reflected in law in terms of the simple assault of a peace officer. In large
part, it is just completing the scheme.
The Chair: For the information of those who may be trying to follow
this on television, the existing section 270 refers to persons who assault "a
public officer or peace officer engaged in the execution of his duty or a person
acting in aid of such an officer''; someone who "assaults a person with intent
to resist or prevent the lawful arrest or detention of himself'' or someone
else, or who assaults a person "who is engaged in the lawful execution of a
process against lands or goods'', et cetera, or "with intent to rescue anything
taken under lawful process,'' et cetera.
Mr. Nicholson: These provisions are in addition to those.
Senator Wallace: Minister Nicholson, you were saying that there is
widespread support for this bill, and that is encouraging as a sponsor. Being
the personal sponsor of the bill in the Senate, I am encouraged to hear that as
well. I have read recently where the Ottawa police services and the Crown
prosecutors' office in Quebec are two examples of where there has been declared
support for the bill.
In particular — one that is, I am sure, music to your ears — I see where
Dominic LeBlanc, the Liberal justice critic when the matter was dealt with in
the house, said that the legislation seeks to assure the public and to send a
clear message that Parliament will be very diligent with respect to the fight
against organized crime. Coming from that side of the House, that is very
You have obviously undertaken a considerable consultation process before the
bill was tabled in the House. I wonder if you might provide us with a bit of
background so that we have a better sense of the extent of that consultation
Mr. Nicholson: We get input all the time. You are quite correct; there
has been widespread support for this bill. Other organizations such as the
Canadian Association of Chiefs of Police, for instance, are unequivocal in their
support of moving in these directions. I do hear it all the time. I have been to
British Columbia three times in the last several months and, believe me, members
of the law enforcement agencies, police chiefs and everyone involved with the
challenges that they are having in Lower Mainland British Columbia are very
supportive of these measures. They say "Keep moving.'' I say that I will keep
moving as quickly as I can. It is a challenge to get legislation through, as you
would be aware.
That being said, I thank you for your assistance in moving this justice
legislation through the Senate, and I appreciate your sponsorship. Again, I
think these are all steps in the right direction; but yes, I hear about it all
I was at a crime forum in Mississauga on Thursday night. Again, I hear from
victims' groups, people who want the Criminal Code, to the extent that it can,
to respond to their concerns. I am very concerned about that.
The whole question of victims is what we are talking about. They were
victims, and the interests of law-abiding Canadians are a priority with the
government. I am pleased, for instance, that we have appointed the first federal
ombudsman for victims of crime. These are steps in the right direction, and
sending out the right message. Thank you for your comments and your support,
Senator Baker: I am told by a person who should know, who is watching
legislation very closely here in the Commons and the Senate, that you have set a
record in the number of bills that you have introduced as minister.
There are several questions concerning this bill, and I am sure we will have
an opportunity to pursue some others. However, my question is one that stands
out, which is the proposed section referenced by Senator Nolin a moment ago. If
I read this correctly, it concerns minimum sentence. Whenever I see something
that commands a minimum sentence, I think about it and read the words and say to
myself, "Will this capture persons whom it is not intended to capture?'' That is
proposed section 244.2 of the Criminal Code, and it is clause 8 in this bill. It
says, in one sentence:
244.2 (1) Every person commits an offence who
(a) intentionally discharges a firearm into or at a place, knowing
that or being reckless as to whether another person is present in the place.
Then it goes on with variations of the same, and it defines "place'' as being
a building or structure.
Then the proposed punishment section, subsection (3), says:
(3) Every person who commits an offence under subsection (1) is guilty of
an indictable offence and
(a) . . .is liable to imprisonment for a term. . .
(b) in any other case . . . of not more than 14 years and to a
minimum punishment of imprisonment for a term of four years.
On a plain reading of that — and I know it is a technical matter, Mr.
Minister, and perhaps Mr. Taylor can answer the question — that reads to me as
"Anyone who discharges a firearm, being reckless as to whether another person is
present in the place . . .'' That is a very broad statement, and it would cover
the definition of "firearm'' pursuant to section 2 of the code. Are we, in this
bill, changing the definition of "firearm'' in section 2 of the code?
Mr. Taylor: No.
Senator Baker: That leads us to a problem. If you look at recent case
law in Canada, you will find many cases of persons convicted of an offence using
a BB gun or a pellet gun. As Mr. Taylor is aware, as defined under section 2 as
a firearm, it is a barrelled weapon. It covers a BB gun. I have the cases here.
You have them, I am sure.
In other words, a person who now discharges a BB gun or a pellet gun will be
captured by this section if they discharge it in a place, being reckless as to
whether or not there is someone else present in that place. Is that correct?
Mr. Taylor: I actually cannot comment on that specific example that
you have given, but what I will say is that the concept of recklessness as it is
defined in law, as all senators are familiar, is a relatively high standard. The
individual has to perceive a particular risk, and in the face of that risk go
ahead and do the prohibited consequence anyway. As you have articulated the
offence, under section 2, the second way you can prove this test is the risk to
life or safety of another person. They have to appreciate that what they are
doing will put another person's safety at issue.
Senator Baker: I understand that, but that is separated by an "or.''
Mr. Taylor: In the first context.
Senator Baker: In the first context, it says simply for discharging a
firearm into a place, knowing that or being reckless as to whether another
person is present in the place. Your qualification is after the word "or,''
which is a different offence altogether.
It is not the recklessness that is being questioned here, on the face of it;
it is the definition of a firearm.
The senator sitting next to me, Senator Watt from Northern Canada, knows all
about firearms and the various regulations that the government brings in.
Normally, they define firearms as to the muzzle velocity and energy of the gun,
as to whether certain regulations will apply. However, what you have done here
is just taken a definition of firearm, applied it to a four-year minimum
sentence, if someone does something with it, knowing full well that it covers BB
guns and pellet guns.
Mr. Taylor: What we have done with respect to subsection (a),
in looking at how we craft a particular offence, that is addressed. What we have
heard — some of the motivations that have caused us to create this offence — are
the use of drive-by or similarly reckless shootings by organized crime. Unlike
section 244 — the specific intent to cause bodily harm — what they are doing is
really about rival gang members intimidating the community at large. They pull
up to a house; they maybe spray into the house and drive off. They turn their
mind to what they are about to do. The house may be occupied. In turn, the fact
that it is occupied, in some respects, is standing in place of life or safety of
another person. This is what we are trying to do with subsection (a).
Your specific question in terms of the case law and interpretation, I just
cannot comment on today. I would be more than prepared to respond in subsequent
correspondence with the committee.
Senator Baker: I will give you two references: The Cripps case
in Ontario last year, where a pellet gun was defined under section 2 of the
Criminal Code as a firearm. Then there is R. v. Siguenza, of the Ontario
Superior Court again, defining a BB gun, so we have pellet guns and BB guns. In
those two cases, yes, the person committed an offence, but they received a
What you have done now is taken a giant step with a minimum. That is perhaps
what we find objectionable about minimum sentences in that you leave the judge
with no choice but to put someone in jail for four years. Perhaps it is
something to think about: use the muzzle velocity and muzzle energy definition
of firearm and insert that under section 2 in order to justify this kind of
Mr. Taylor: As I say, I will take your question and respond with a
more detailed response subsequently.
Senator Milne: Mr. Minister, you have said to this committee before
that you are strongly in favour of mandatory minimum sentences, and you have
previously brought in several bills containing such sentences. The department
must have provided you with some evidence as to how effective they are, if they
are effective at all.
Mr. Nicholson: We will be in a better position to tell you in a couple
of years what has happened with the ones we have introduced. We will let you
know, but again, trying to guess or predict human behaviour, either in the
future or exactly what motivates people in the past, is always very difficult
and an inexact science.
Certainly I have said this before, that with those individuals off the street
who should be off the street, there will be fewer victims, and we can all agree
with that. Again, for those people who do not agree with the mandatory minimum,
there is no amount of evidence or anecdotal evidence or rationale that will get
them to support it; I accept that. However, I think it is appropriate and it
sends out the right message.
Senator Milne: Mr. Minister, I am not talking about anecdotal
evidence, but about evidence that has been collected in other jurisdictions
where they have used them. I am certain that the department has had that, and
that the department has let you see what that evidence is.
Mr. Nicholson: It is always apples and oranges, trying to prove what
is and is not effective in some other jurisdictions.
Mr. Taylor, do you have any comments on that?
Mr. Taylor: We have some information on mandatory minimums available
on the Justice website. The results, I think, are inconclusive.
Senator Milne: Whose position does it support?
Mr. Nicholson: Mr. Taylor says that they are inconclusive, because it
is very difficult to compare. You do not have the same sort of system.
Senator Milne: Mr. Taylor?
Mr. Taylor: As I say, the results are inconclusive.
Senator Milne: One could not say very much else right now.
The Chair: I will ask you, Mr. Taylor, to give the clerk the precise
reference on the rather large Justice website.
Mr. Taylor: I can read them in now, or provide them later.
The Chair: If you do it tonight, that will be great, because we will
be able to give it to colleagues for tomorrow morning's proceedings.
Senator Nolin: Mr. Taylor, what you have on your website now is fine,
but we would like to see what was posted in the past and has been retired from
the website as well.
Mr. Taylor: I can take that back.
Senator Nolin: Let us look back 10 years. You had previous documents
on your website that did not exactly support mandatory minimum sentences, but
let us see what you have.
Mr. Nicholson: We will do our best.
Senator Milne: This is a technical question, because when I look at
the proposed section 244.2, clause 8(1)(a) and (b), those two
subclauses to me say exactly the same thing.
Mr. Taylor: They are very similar, absolutely very similar. In certain
cases, both provisions could apply.
Senator Milne: Or one provision would cover both?
Mr. Taylor: Or one could cover both, but not in all situations. Why we
have designed it and separated it into two different places is that a park, a
public space or an open space — a street, for example — is difficult to
articulate as being a "place'' as we have defined it in the code. We are trying
to get at those open spaces — perhaps a schoolyard — where someone is
intentionally discharging their firearm and is reckless as to the consequences.
Why you see the wording different there, in terms of:
. . .as to the life or safety of another person.
If you are in an open space, it is likely that you would know that the place
is occupied. It is not quite the same as saying — as we have done in subsection
8 — where you have not deliberately or consciously confirmed that, in fact. this
place is occupied. In the case of subsection 8, we are looking at the person who
sees the lights on in the house and has turned their mind to the fact that
someone will be there. In other words, it is a certain time of the day; I know
someone will be there.
They do cover different things, and of course it will always depend on the
particular facts of the case. We are trying to give Crown prosecutors at the
provincial level a couple of ways in which to address a full range of behaviour.
Senator Milne: It is still reckless behaviour.
Mr. Taylor: It is still a reckless standard in both offences. In the
context of subsection (a), they know where they are reckless, so you can
prove they did know. Whereas in the case of subsection (b), if you prove
that they know, then obviously you have met a higher threshold than you have
made out the element in that context.
Senator Milne: It still says:
. . .knowing that or being reckless. . .
It still comes down to the reckless use of a firearm.
The B.C. Attorney General and the Solicitor General both make the case that
they need to target organized crime, and that what they need is not in this
Mr. Nicholson: One thing they asked for was getting rid of credit for
time served, and I was happy to oblige them a couple of weeks later on that
Senator Milne: Maybe. That is still up in the air, I believe.
Senator Dickson: This question is for the Minister. I am a senator
from Nova Scotia, and not a week goes by now in Nova Scotia without a shooting,
sometimes unrelated to a person. It is very prevalent in Nova Scotia.
I note that Chief of Police Frank Beazley of the Halifax Regional
Municipality, has said:
Bill C-14 sends the clear message that drive-by shootings, the reckless
discharge of firearms in public places, and the use of firearms for
intimidation by criminals will not be accepted by our society. It is long
I agree wholeheartedly with Chief Beazley. He goes on further to say:
I am also pleased that this bill will create two new offences designed to
protect peace officers and other justice officials. Police officers today
are being confronted more and more with weapons and violence.
That sure is true in Nova Scotia, particularly in the Halifax area.
We must ensure that our laws address that violence, and these provisions
speak to the level of violence and intimidation police face today.
This statistic is shocking, really:
Assaults on police officers in Halifax this year over last year have
risen in excess of 40 per cent.
As a junior senator around this table, I fully support the quick
implementation of this bill, and I would appreciate your comments as to how this
bill will help us in the fight against organized crime, because definitely it is
involved with drugs and whatever else.
Mr. Nicholson: That is an excellent question, and a great quote. Could
you see that a copy of that is distributed to all your colleagues with the other
information they will be getting?
I feel strongly about upgrading the provisions with respect to assaults on
peace officers and other people involved with the criminal justice system. We
can never have a system in this country under which people feel that they can
intimidate people who are involved with law enforcement at any level. You will
see that there is a fairly wide definition.
I remember an occasion when someone did something that could be interpreted
as a threat to a public officer, and I thought how wrong it would be if people
in our society targeted those who are there to protect us.
I make no apologies for the fact that we have upgraded the offences as they
relate to individuals who are involved with enforcing the criminal justice
system and including, as part of the sentencing provisions, deterrence and
denunciation provisions. We want to send the message that people will not get
away with intimidating the people who protect us.
I appreciate the comments of the chief of police of the regional municipality
of Halifax. His focus on that section is very helpful. Although nothing is ever
perfect, we have certainly been receiving good feedback on this legislation. In
my opinion, it sends the right message, but it is only part of what we need to
do. I appreciate that we need a comprehensive approach on all aspects of
tackling crime. This is why we have taken a very balanced approach. This is one
section of it, and we must continuously focus on the Criminal Code to ensure
that it is up to date. This will cover identity theft and auto theft. Again, we
are trying to update the Criminal Code to ensure that it is responding to the
challenges, which are changing all the time.
You alluded to what is happening in Halifax. We are not facing the same
challenges there as we had 25 years ago. I am familiar with that situation.
When I introduced the identity theft bill, a reporter asked me if this was an
attempt to get ahead of the bad guys. I said that I just wanted to catch up with
them. This is what we are dealing with. Crime evolves. It is becoming more
sophisticated and more dangerous. We need to respond, and this is part of the
The Chair: Mr. Minister, could I ask you to give someone, perhaps Mr.
Taylor, some homework for the summer? There have been quite a number of bills
presented since this government took office, but let us go back to what was Bill
C-2, the tackling violent crime bill. Could you produce for us, in tabular form,
a list of all the changes in sentencing that have been either passed in
legislation or are now proposed in bills before one or the other chamber of
Parliament? This would include the establishment of minimum sentences where
there were none, or increasing them, but also, if you would, any changes in the
criteria for sentencing and, in the final column, what the previous sentence was
in cases where we are not talking about a newly created offence but, rather,
about a change in sentencing for an existing offence.
This may be a fairly voluminous document, but it would be of assistance to
this committee as we go forward. I ask for this as a tool.
Mr. Nicholson: We will do what we can to provide you with that
information. In some cases they are brand new offences that we have created.
There is a separate offence for auto theft. It replaced the old theft over
$5,000, so it is a refinement.
The Chair: I am not asking you to give it to us this minute. I would
simply like a document to which we can refer as we go forward.
Senator Joyal: I apologize for being late. I was caught in the chamber
on another matter.
Have you measured the impact that this bill will have on plea bargains and
the capacity for the Crown to bring many more criminals before the court?
Mr. Nicholson: It would be only a guess, senator. How do we measure
something that has not yet taken place? Again, we want this bill to work well,
and certainly to respond to the challenges that Crown attorneys and police
officers across the country are having. We are making changes to the Criminal
Code, and I am sure they will be well received.
Senator Joyal: I am wondering whether you have had an opportunity to
measure, with Crown attorneys, what impact these changes might have on their
Mr. Taylor: That was not raised with the Crown prosecutors we spoke
with in developing the bill. We can look to other examples in the code where the
criminal organization element is present for possible guidance. We have heard
some articulate that a criminal organization charge or another offence where
there is an enhanced penalty because of the link to a criminal organization may
prove effective in encouraging people to plea bargain.
I am not in a position to comment on whether that is appropriate or
inappropriate. The decision is obviously one of a provincial Crown prosecutor or
those involved in the prosecution of those cases. It was not raised to us when
we were developing these specific proposals.
Senator Joyal: In other words, you have not measured how this might
affect a Crown attorney's decision to proceed with a charge of first degree
murder rather than manslaughter?
Mr. Taylor: With respect to the specific proposals around first degree
murder, we are not talking about manslaughter at all. The amendments before you
in Bill C-14 will only come into play after a person has been found guilty of
murder, because we are looking at the sentencing provision. It is not a
consideration in the section 231 amendment. It is only after an individual has
been found guilty that the question arises as to whether it is murder in the
first degree or murder in the second degree. We are proposing, with respect to
organized crime, that it will be first degree in either of the two circumstances
in Bill C-14.
Senator Joyal: You have had no representation from the Crown attorney
on that specific —
Mr. Nicholson: We deal with the provincial attorneys general. These
offences come within provincial jurisdiction. As I indicated in my opening
comments, I have received excellent feedback on this bill, including from the
former attorney general and former solicitor general of British Columbia. They
were very supportive of this legislation, and they are representative of a
number of others. They raised these matters with me and we have responded.
However, we do not go over their heads and ask Crown attorneys how they would
like it. We rely on the provincial attorneys general in each province and
Senator Joyal: It is not a question of going over the heads of others;
it is a matter of trying to understand the impact that this measure will have on
the administration of justice.
Mr. Nicholson: This is why I rely on provincial attorneys general.
They have the responsibility for the administration of justice, and I put my
trust in them. I meet with them regularly and hear from them regularly. I am
glad to get their input, and if you had any number of them here, they would say
that the Conservative government in Ottawa is responding to what they wanted.
This is not a list of random legislation that we have presented to you. They
come, for the most part, from our constituents, our voters, as well as from
provincial attorneys general and even from the law enforcement people. You heard
a good example from Senator Dickson, namely, the chief of police of the regional
municipality of Halifax. There is widespread support.
Mr. Taylor: As Minister Nicholson said, many of these proposals came
from the provinces. If I can focus again, for example, on the first degree
murder amendments, those are based on a specific recommendation from the
Minister of Justice from Manitoba. That recommendation was informed by an
extensive consultation of provincial officials with experts in organized crime
from across Canada. When they brought that proposal to the minister's table and
then through the process down to officials, it was never something that was
raised at the time that we developed the bill. As I have indicated, in the
discussions that we have had with our counterparts, the issue of whether it
would have a negative or positive effect with respect to plea bargaining was
never raised. We also consulted with expert Crown attorneys in organized crime
prosecutions, specifically, and discussed some of the ideas that have informed
this bill and, again, it was not raised.
As I said earlier, it might be viewed positively, or it might be viewed
negatively. That will depend on the particular Crown, and I guess what you view
as a positive outcome with respect to a conviction for a more serious offence or
a lesser plea bargain offence.
Senator Milne: I would like to make a comment to the minister after
his previous remark that we will have the identity theft bill before us. We have
already had it, Mr. Minister, and I am sure you remember appearing before us on
The Chair: We sent it to your very own chamber.
Senator Bryden: Thank you for appearing before us. I want to start
where Senator Baker started and then moved on.
Approximately how many bills to amend the Criminal Code that increase
penalties has the Department of Justice introduced since the government was
Mr. Nicholson: I could tell you that, just in this Parliament, we have
Bill C-14, organized crime; Bill C-15, drug offences; Bill C-25, truth in
sentencing; Bill C-26, auto theft; Bill C-31, criminal procedure; Bill C-36,
repeal of faint hope; Bill C-39, the Judges Act, which I shared with my
colleague the Minister of Indian Affairs; Bill C-42, conditional sentences; and
Bill S-4 that was introduced in the Senate on identity theft. Those are the ones
we have introduced in this Parliament.
In the previous Parliament, we introduced changes such as criminalizing video
piracy. We had the Tackling Violent Crime Act; there was another one for street
racing. It has been an extensive list that covers many areas.
Senator Bryden: How many bills would that be?
Mr. Nicholson: I believe it is 10 or 11 in this Parliament. Some of
our bills in the previous Parliament never made it through, but we put them all
together under the Tackling Violent Crime Act. I think we put five acts together
Senator Bryden: The number is at 15, 20 or 25.
Mr. Nicholson: It is in that neighbourhood. It has been busy.
Senator Bryden: Every one is primarily concentrated on increasing the
Mr. Nicholson: Many of them do, senator. Some of them are
criminalizing behaviour that was not criminalized before. Certainly, you have
that with identity theft. Some of them, like the Judges Act, have nothing to do
with penalties but come within the purview of the Justice Department. Certainly,
we have upped the penalties on a number of offences, and again, Senator Fraser
gave us that homework for the summer. We will give you that in detail, either
the new offences or the increases in penalties for existing offences.
Senator Bryden: In doing that, I go back to Bill C-2. What made me
think of that is your saying that we do not know whether these do us any good or
Mr. Nicholson: I think they do good.
Senator Bryden: You think that, but you do not have any evidence of
that because you said that you have not had enough time.
Mr. Nicholson: I said that in reference to bills that we have before
this Parliament. If you are asking me how it will affect things, we will know
better as they come on line. Even with respect to the Tackling Violent Crime
Act, I appreciate that we were in office for two and a half years, but it has
only come into effect within less than the last 12 months. It has to work its
way through the system.
Senator Bryden: How long will that take? When you get to the end of
it, if it turns out that this is wrongheaded and, in fact, is not the way to
make our streets safer, what do you do then? Do you just say, "Oops?''
What we were able to establish in analyzing Bill C-2 was that the United
States, Australia and many other countries — but the U.S. in particular —
brought in the mandatory minimums, to use my colleague's terms, the "hang 'em
high'' line. Not only did I spend a lot of time but I also spent a lot of my
office money in researching this aspect. We had expert after expert appear
before us, and we had no evidence whatsoever that mandatory minimum penalties
reduced the amount of crime and made our streets any safer.
It turned out that, in the U.S., it filled up many jails so that a whole
industry has made a huge amount of money building new jails to fill them up. The
African Americans and the Latinos who are in there are in automatically under
this provision. We found that when you looked at Canada, it was the Aboriginals.
They make up a small percentage of the Canadian population but they make up 70
per cent of the people who are in the jails, as I believe the number was then.
If mandatory minimums come in, they are the ones who get hit. We found it was so
bad in Australia that the Australians did away with mandatory minimums. Not only
was it not helping, they came to the conclusion that it was making the situation
Other than this magical thing, that if we could just lock everyone up, then
everyone else who causes a crime will look around and say, "I am not going to
cause a crime because that is what happens to you.'' The evidence is very clear
that the criminal does not act on that basis.
Other than "lock 'em up,'' do you have a program to minimize the impact of
crime on our communities? There are such programs.
Mr. Nicholson: There is no question, senator — and I appreciate the
comment — that the peace bond provisions are an encouragement for people in
preventing them from committing crime. We are giving these conditions to a
certain type of behaviour to prevent criminal activity.
I was very proud and pleased to be part of the National Anti-Drug Strategy,
joining with my colleagues the Minister of Health and the Minister of Public
Safety and putting on a program to help people. I like the idea of the drug
courts in this country. That, too, is part of the Tackling Violent Crime Act and
the provisions of this government and the financing so that we help an
individual who has been charged with a drug offence. It is not about the people
in organized crime, and I do not want people to get mixed up. It is not about
the people bringing drugs into this country, trying to destroy it, but the
person who becomes an addict. I want that individual to get help, and I support
the drug courts across this country so that we can give them an alternative to
having a criminal record.
If my colleague the Minister of Public Safety were here, you would have a
long list of all the different organizations that we support. Why? We understand
that we need to have a complete package. This is not something that I dreamed up
last Saturday night and brought forward. As Mr. Taylor and others have indicated
to you, we have heard from provincial Attorneys General, the people involved on
the front line, law enforcement agencies and my own constituents, all the people
we hear from on a regular basis. They want us to move forward on these matters,
senator. They say we are on the right track.
Senator Bryden: Do you give comparable time to the social workers and
the people in the areas where they are really trying to make a difference? What
do you say to the cynics who see this list and, unfair as it might be, take the
position, "Well, that is what is expected of this party by the people who
support them. They are the people who are interested in crime and punishment.''
There is a concern from ordinary Canadians about continuing in this direction.
We talk to the police a lot, we talk to victims a lot, but we do not talk a
great deal to the people who just use the streets and use my farm and things of
that nature. We could very easily fall into a situation that would be close to a
police state, or something like that.
Mr. Nicholson: I have no worry about that, senator. I really think
these are balanced approaches. These are appropriate sentences for the type of
activity that we are taking aim at. I hope I mentioned some victims' groups. I
talk with them as well. The people who are the victims have strong views on this
situation, and what is needed. I tell them the truth. I appreciate hearing from
them. When we deal with people under the National Anti-Drug Strategy or the
National Crime Prevention programs, the guns, gangs and drugs initiatives, we
are working with people who are working with people on the front line to help
them. I want them to get the message that this is not the way to go, that Canada
does not tolerate this behaviour, that there are certain consequences, that we
want them to live that productive life and we want to help them do that.
Senator Bryden: I will make one comment and then be quiet. The Book
says that if your hand should fail you, chop it off. If your foot does, do the
same. An eye for an eye and a tooth for a tooth. That is the sort of message
that I find coming out of this almost total approach, saying, "What we need to
do is to punish, and punish directly, and if we do that, then that will solve
Mr. Nicholson: I disagree with your analogy, senator, about the eye
for an eye. I have spoken with victims groups and I can tell you that there is
not a penalty here in any of these measures that will ever compensate for, or
equal, the pain that victims across this country experience because of the crime
that has been committed on them and their family. I could never agree that it is
an eye for an eye or equal/equal, because it is not even close. That is
something that comes across again and again when I visit with victims or they
meet with me.
Senator Bryden: It is a false position to say that now that we have
these wonderful penalties and we can lock people up for four years, five years,
ten years, you will now be safer. There is no validity in that. You have no
evidence of that.
Mr. Nicholson: It is like getting rid of the "faint hope'' clause. The
people whom I met know that the individual who murdered a family member will
still have the benefit of the "faint hope'' clause and that they will continue
to be victimized every time that person comes up for a parole hearing. We have
taken some steps to try to minimize that. They all said to me that at least
people in the future will not be victimized again and again, as they have been
after the conviction of the person who took away a loved one. That is what they
tell me. It is not even for themselves. It is for people in the future. They
understand that, and they thank us for doing it.
Senator Bryden: The unfortunate thing is, he really believes it.
Senator Angus: We have had Criminology 201.
The Chair: We have had a schedule wonderful set of arguments advanced,
Mr. Minister. Thank you.
Mr. Nicholson: Thank you. I am sure I will be back again.
The Chair: It seems likely, does it not?
We are fortunate to have with us, representing the Criminal Lawyers'
Association, Michael Spratt, who is a defence lawyer and a CLA Designate.
Welcome, Mr. Spratt. Do you have a statement to give us?
Michael Spratt, Defense Lawyer, CLA Designate, Criminal Lawyers'
Association: I have prepared brief opening remarks.
Thank you for the introduction. I am a criminal lawyer here in Ottawa with
the firm of Webber Schroeder Goldstein Abergel. I am a member of the CLA, the
Criminal Lawyers' Association. I am here on their behalf.
Very briefly, the CLA supports legislation that is modest, fair,
constitutional and necessary. We are here today to talk about Bill C-14. From my
view, there are some problems with this bill that should be considered. I would
like to concentrate specifically on the new section 244.2.
Of course, this section creates a new offence, to discharge a firearm knowing
or being reckless as to whether another person is present in a place, or to
discharge a firearm being reckless as to the life or safety of another person.
This section also creates a minimum sentence if a restricted or a prohibited
firearm is used. That provision specifically is very concerning to me.
This is yet another minimum sentence that is being proposed. Sentencing has
long been an individualized process. Rehabilitation and specific deterrence are
important principles of sentencing and, in my submission, should not be
discarded to focus mainly on general deterrence and denunciation. This is
especially true, I would suggest, given some empirical data I will be referring
to about rates of crime.
Currently, the CLA's position is that experienced judges who are privy not
only to the specific individualized facts of the case but also to the
individualized information about an offender are best situated to craft a just
and appropriate sentence. Of course, it should be remembered that these judges'
decisions are always subject to judicial review, but it is CLA's position that
it is the judges themselves, with their experience and their detailed knowledge
of those specific facts that I referred to, who are in the best position to
craft an appropriate and just sentence.
I see that Bill C-14 as proposed also expands some peace bond provisions. It
is apt to look at some statements made in that regard. I note that the committee
just heard from the Honourable Mr. Nicholson, the Justice Minister. In speaking
about those expanded peace bond provisions in the code the minister said:
Specifically, we are making changes to clarify that, when imposing conditions as
part of the order, a judge has very broad discretion to order any reasonable
conditions that are desirable in order to secure the good conduct of the person
before the court. This flexibility is extremely important because it provides
those dealing with these persons with the framework they need to craft the most
appropriate response to address the particular facts and circumstances of the
case at hand. This helps avoid a cookie-cutter approach, and will result in more
effective conditions being ordered.
I agree with that statement entirely. That reasoning is equally applicable,
not only to the imposition of potential peace bond convictions that may follow a
sentence but to the sentence itself. A wealth of literature has been presented,
I believe, before this committee on different bills, and these include reports
from the Department of Justice that show that mandatory minimum sentences are
simply not effective. I echo the minister's position. A cookie-cutter approach,
however politically attractive, does not advance the cause of justice or result
in a fair and appropriate sentence being imposed on a specific offender.
The proposed cookie-cutter approach, and that is what minimum sentences are,
will result in more litigation, increased prison population at the taxpayers'
expense, and most important, in potential unfairness to the individual being
sentenced. Through minimum sentences we turn our backs on a fair and
individualized sentencing process that, until recently, has been the enviable
characteristic of the Canadian system.
I made mention earlier in my submissions to some crime statistics and data. I
think they support the position. Statistics Canada has recently compiled a new
index for spotting trends in criminal occurrence rates. That has produced
results that are certainly at odds with the current federal government's mantra
that crime is on the increase and can only be stopped by longer sentences, no
bail and the creation of more and more offences. The new crime index is the
Police-reported Crime Severity Index. Of course, it has an acronym: the PRCSI.
This differs from previous indexes — for example, the Police-reported Crime
Rates that compiles any report of a crime. The Police-reported Crime Severity
Index actually indexes the severity of the crime. It is based on the seriousness
of the offence.
What Statistics Canada found was that, over the last decade, crime severity
has fallen by about 20 per cent. One must ask: Are minimum sentences, more
punitive measures, this new legislation, really necessary? Is there really as
large a problem as we are sometimes led to believe in the media and through the
statements of the government?
In my submission, there is not. This minimum sentence and this legislation
are not necessary; they remove an important function from our judiciary, which
has been historically trusted to impose just and fair sentences that, again, are
always subject to appellate review.
There is another aspect of the legislation, and this section specifically,
that I would like to discuss. This proposed section 244.2 I view as a companion
section to section 244, which of course is to discharge a firearm with the
intent to maim or wound someone. Of course, that section has mandatory minimum
sentences as well — in fact, the same mandatory minimum sentences being proposed
in this legislation.
What we are left with, if this legislation passes as drafted, are two
sections with very different intent elements: one, an intent to wound or maim
and one, mere recklessness, but we are looking at the exact same minimum
sentence that would be imposed on those two offenders.
That disparity is uncalled for. It has long been held that sentencing must
reflect one's moral culpability, and certainly there would be a difference in
someone's moral culpability between discharging a firearm with the intent to
maim and wound someone and discharging a firearm recklessly.
Recklessness is a very low standard in criminal law, and that should be
reflected in the sentence. Ultimately, it should be reflected in a sentence that
is imposed by a judge who is aware of all of the circumstances and not merely a
number printed in the Criminal Code. Again, this proposed section is broad, and
it may capture a range of activities that perhaps were not contemplated — for
example, children who discover a firearm in a parent's home and use it. One
could imagine a young Aboriginal child who is passed down a family heirloom that
was used at some point and perhaps discharges that in a manner that is captured
by this code. Certainly, that firearm could be a restricted or prohibited
weapon, and in that situation a judge should have the discretion to take all
factors into account before simply passing a sentence.
The Chair: For a young child?
Mr. Spratt: When I say a young child, I mean a young child that would
be captured by this section. Perhaps it shows my age, which may be a good thing,
if I think of anyone younger than me as being a young child. I could be turning
into my parents; I am losing my hair.
To come back to the point, this proposed section is broad, and the Criminal
Code should not repeat itself. This new section, in my submission, may not be
necessary, given the crime data, but also given that there are many other
sections of the Criminal Code that may address the problem, or perceived
problem. If you look at section 86 of the Criminal Code and following, there are
many charges that deal with weapons offences, including section 86, which is
careless use of a firearm — a section that, in itself, has a minimum sentence
and no maximum sentence. A judge using their discretion under that piece of
legislation — or what discretion they may have, given that there is a minimum
sentence — would be able to capture any conduct that is intended to be captured
by this new piece of legislation.
As I said, duplication in the Criminal Code is not advantageous. In my
experience, it leads to overcharging, laying of multiple charges for one act
which leads to more complex trials, potential unfairness in negotiation in
pre-trial conferences with the Crown and, ultimately, protracted litigation.
One must ask, given the existing sections of the Criminal Code and the crime
data indicating that there has not been a rise in serious crime, is this new
legislation really necessary? It is my submission that the answer to that
question is no. As drafted, it is my position that, apart from being
unnecessary, this proposed section could lead to much unfairness in the
sentencing of individual offenders; unfairness that, unlike some other
jurisdictions around the world, Canada has largely been able to avoid up until
Senator Nolin: Mr. Spratt, thank you for taking the time to study with
Mr. Spratt: It is always a pleasure.
Senator Nolin: Did you testify before the House of Commons committee?
Mr. Spratt: I have not had that pleasure.
Senator Nolin: Have you read or listened to transcripts of proceedings
of the Justice Committee in the House of Commons?
Mr. Spratt: I have. I do not expect that I have read all of them, but
I have tried to make myself aware of them prior to coming here today.
Senator Nolin: Are you aware whether the argument you are raising
today has been raised over there?
Mr. Spratt: I expect it has been.
Senator Nolin: I am asking you if you have read of it — I think it is
an important argument.
Mr. Spratt: I know the argument has been raised. I have not read the
details but I believe it is a very important argument and one that needs to be
considered at all levels.
Senator Nolin: You have referred in your remarks to a document — and
you were questioning its origin, you mentioned the Department of Justice — to
the effect that those sentences do not work. Do you still have that document?
Mr. Spratt: I do not have it with me. I know there was a Justice
Department report in 2002 and 2005. It dealt primarily with narcotics offences.
I would submit that their analysis of minimum offences is quite apt in this case
Senator Nolin: I do not want to depend on hearsay on the document.
Could you check in your notes, in your library, to see if you still have that
document? I am sure we would be glad to see it.
The Chair: I think we can actually find it. We have all these
Senator Nolin: I do not think it is on the website anymore.
The Chair: However, I think it is available to our staff through their
Senator Nolin: Just to make sure we are talking about the same
document, could you look at your papers and perhaps forward to the clerk a copy
of the document you have?
Mr. Spratt: I will do my best, senator.
Senator Nolin: Thank you. Maybe it will help in future studies.
The Chair: This is not the last bill that will come before this
committee on these matters.
Senator Watt: You have already raised the issue that I was very
concerned about, but I will raise it again. For an Aboriginal child who happens
to know where the rifles are stored, even though they are locked up, there is a
good possibility that they could find the key and access those rifles. There is
no age limit in this piece of legislation, and as you mention, it is very broad.
I do agree with that.
Let us say in the case of a child who is under the age of 14, as an example,
if that child happens to use pellet or BB guns — which they use pretty heavily
in the North when they are beginning to use rifles; we even use those as a way
of teaching our youngsters how to handle rifles — and the child happens to hit
someone or wound someone, is it your opinion that the child will charged?
Mr. Spratt: The child would have to be of an age to be charged under
the Youth Criminal Justice Act, of course. To be honest, I am not sure how the
Youth Criminal Justice Act would intersect with this piece of legislation when
it comes down to sentencing. It is something that I would need to look into, but
there could definitely be issues there. However, I expect if the child is of
age, he would be charged.
Senator Watt: It is your opinion that the person would be charged,
regardless of age, under the minimum sentence?
Mr. Spratt: Yes, and if the child is not charged, what we are really
doing is removing discretion from the hands of judges and putting discretion in
the hands of police officers as to when to charge and when not to charge, which
could be problematic as well.
Senator Watt: At the same time, I do not think we have facilities in
the North, even in the sub-Arctic, to take care of those young people who are
breaking the law.
Senator Angus: Are you basically a defence attorney?
Mr. Spratt: I practice exclusively criminal defence.
Senator Angus: Is the Criminal Lawyers' Association a grouping of
Mr. Spratt: That is correct, yes.
Senator Angus: In the views you are expressing here, you said you were
speaking on behalf of the defence bar, is that correct?
Mr. Spratt: That is correct.
Senator Angus: Would you have had a meeting to put together your
submission, or are you coming because you are here in Ottawa and you have that
Mr. Spratt: The association is headed by Mr. Frank Addario. Also, I
have spoken to a number of members of the criminal defence bar — a number of
members of the Criminal Lawyers' Association, including Mr. Matthew Weber, a
senior partner at my firm who has practiced criminal law for a lot longer than I
The CLA is comprised of many senior lawyers, including Mr. Joe De Luca, who
is currently doing a murder trial in Barrie. Through that trial, in fact, the
jury vetting problem came to light. There are a number of very senior lawyers on
the board of the CLA.
Senator Angus: This is the prevailing view of those individuals at the
bar who are defending people charged with crime, is that correct?
Mr. Spratt: Yes. I do not think I have met a member of the criminal
defence bar who is in favour of minimum sentences.
Senator Angus: I wanted to have that point on the record. Were you in
the room when Minister Nicholson was having an interchange with my colleague
Mr. Spratt: Yes. I had the pleasure of catching the end of his
testimony, and I think I did see that interaction.
Senator Angus: Did you agree with the minister's responses?
Mr. Spratt: Could you remind me precisely what the issue was? There
was a wide-ranging conversation.
Senator Angus: The issue was a standard academic argument in
criminology, namely, whether mandatory minimum sentences are a deterrent. My
colleague was making the case, after doing substantial study, that they are not
a deterrent at all, and in fact may have the reverse effect. The minister put up
a spirited contrary position.
I thought I had seen you sitting there. I do not want to put you on the spot.
Mr. Spratt: I heard the comments. The material I have reviewed, which
I think has been presented to this committee on other bills, has said that it is
not effective. In fact, I found an article on the Internet today from the
National Post that said so.
Senator Angus: That is a great law journal. I will conclude with a
question. Your position was clear, and I expected it to be that.
We are told, and read about every day, about a rampant crime wave with
drive-by shootings and reckless killings. In Montreal there were four shootings
last Sunday and Saturday. I believe that three of the four were fatal. It is a
Have you a better suggestion to deal with that than what is in these bills?
Mr. Spratt: I may have to disagree with you on the point of it being a
rampant problem. I do not know if there is empirical data to suggest that. In
fact, the opposite may be true. However, I would submit that the current
provisions under the Criminal Code are adequate to deal with the problem. To be
honest, I have not seen a lenient sentence for homicide committed with a gun
since I have been practising. I think the current legislation is adequate to
deal with whatever problem there may be.
Senator Angus: That is fine. Thank you.
Senator Baker: Senator Joyal asked several questions of the minister,
one of which pertained to the effect on prosecutions, to which the minister
responded that prosecutions were done under the provincial attorneys general and
ministers of justice. I think he forgot that we have a director of public
prosecutions, and it is federal prosecutors who prosecute everything under the
Controlled Drugs and Substances Act and under the Fisheries Act, and in many
cases there is an interspersing of charges with the Criminal Code, so Senator
Joyal's question was legitimate.
I would like to ask the witness about the effect of minimum sentences on plea
bargaining. Would the fact that a convicted person would face enhanced sentences
lead to an increase in the number of plea bargains, such as pleading guilty to
included offence or other offences under the same indictment, which would also
lead to increased numbers of prisoners in Canada?
Mr. Spratt: I believe that minimum sentences do two things, neither of
which is particularly advantageous: The first is that they remove discretion
from the hands of judges and put it in the hands of prosecutors, who have the
discretion to withdraw some charges and proceed on others. As a result, there is
a great incentive for an accused who is facing a charge that carries a mandatory
minimum to bargain with the Crown to avoid a trial or adjudication of the charge
and plead guilty to an included offence. That is problematic because it is a
misplacement of discretion. A judge should have that discretion. If we are
worried about the exercise of discretion, a member of the judiciary who is
accountable to appellate review is a safe place to put that discretion.
Conversely, mandatory minimum sentences may also result in more charges
making their way to trial. If one is faced with a charge which carries a
mandatory minimum sentence, especially if your criminal conduct is towards the
lower end of the spectrum, there is no incentive to plea bargain because you
know what sentence you will get. There is actually an incentive to proceed to
trial, because after trial, if convicted, you will not face any more than the
mandatory minimum because your conduct is on the lower end of the spectrum.
Therefore, we have this plea bargaining problem as well as a potential backlog
in the courts through charges that could have been resolved earlier but simply
are not, because of the mandatory minimum sentence.
Senator Baker: I have one further short question. You observed that we
are increasing the numbers of offences in the Criminal Code that already cover,
in part, the same delict. You mentioned section 86.1, careless use of firearm;
section 221, criminal negligence; discharging a firearm recklessly, section 244;
section 87, possession of a weapon dangerous to the public peace; section
267(1)(a), assault with a dangerous weapon, to wit, a sling shot.
The answer given in response to that argument was that the Crown would
"kienapple out'' those offences and the person would go to trial not on all of
these offences individually and that would not increase the number of offences.
What do you say in response to that?
Mr. Spratt: In my experience, it is the court that would apply the
"kienapple principle'' after convictions are entered, that is, the rule against
multiple convictions. We often see someone charged with assault and assault with
a weapon, for example. I have not seen one of those charges stayed or withdrawn
prior to trial. The accused is arraigned on all and the trial takes place on
all, so I have not seen the Crown use that discretion.
Senator Baker: You overlooked a section. You mentioned section 244 at
the beginning and you said, and I think you misspoke, that this minimum sentence
only applied to restricted firearms and prohibited firearms. That is in
subsection (a), but subsection (b) says "in any other case.''
Mr. Spratt: Yes.
Senator Baker: So this would apply not only to restricted firearms but
to a BB gun, a pellet gun and a sling shot.
Senator Wallace: Mr. Spratt, hearing you speak about mandatory
minimums, I am almost left with the impression that this bill is introducing
mandatory minimum sentencing for the first time to the Criminal Code, but of
course that is not the case, is it?
Mr. Spratt: No. The code is replete these days with mandatory minimum
sentences. This is yet another example of them.
Senator Wallace: Those mandatory minimums in the code today have been
introduced in the past through a series of governments. It is certainly not only
the current government that has introduced mandatory minimum sentences. Is that
Mr. Spratt: Many governments have supported mandatory minimum
sentences in the past.
Senator Wallace: A series of governments have obviously felt that they
represent some value to society. They provide some value to law enforcement, I
would have to assume. Would you not agree?
Mr. Spratt: Perhaps that, or perhaps it is politically advantageous. I
do not know which one it may be.
Senator Wallace: Code provisions would be introduced because they are
politically advantageous as opposed to serving the interests of justice. You as
a legal counsel would suggest that?
Mr. Spratt: I say that, not to be disrespectful.
Senator Wallace: There is a serious administration of justice issue. I
would not agree, but I will not comment further on what you have to say.
Mr. Spratt: I say that, not to be disrespectful, senator, but merely
because I have not seen empirical evidence that would suggest that these minimum
sentences have utility.
Senator Wallace: Have you researched that yourself in regard to the
existing minimum sentences? Are you telling us that the mandatory minimums in
the code today have had no impact on creating a deterrence in regard to the
commission of crime?
Mr. Spratt: I am saying that I have not seen that research.
Senator Wallace: You do not have the research? You do not know
Mr. Spratt: I have not seen that research. I do not know if the
committee has been presented with it, but I know the Department of Justice, in
regard to that —
Senator Wallace: You are giving the evidence. We have already heard
from the Department of Justice. Your position is that you have nothing to offer
to support your statement, or your impression, I guess, that deterrence is not
created from mandatory minimum sentences. You cannot comment on that?
Mr. Spratt: It is my position that it is not. I have not seen anything
to change that position.
Senator Wallace: You have no evidence to present to us to support that
Mr. Spratt: No. I think others would be in a better position to
present that evidence.
Senator Wallace: You made a comment in your evidence in regard to the
approach being taken not only by this bill but perhaps others. You boiled it
down to a statement that, in your opinion, it seems that government is saying
that crime can only be stopped by longer sentences. I hope that was a
misstatement on your part. I hope you would agree that there is far more to the
administration of justice than simply longer sentences and that you would not
boil it all down to that as being the sole thrust of the government's approach.
Mr. Spratt: In this legislation, to be fair, there are enhanced peace
bond provisions. What I find troubling in this legislation is that discretion is
deemed to be wise and valuable in certain circumstances, yet removed in other
circumstances in potentially an unfair way.
Senator Wallace: You also said that it would appear the government is
turning its back on a fair and just sentencing system that exists today. I would
suggest to you that the public and law enforcement officials would take serious
exception to that and have serious doubts that the existing system is at all
times a fair and just sentencing system. In part, that is why this bill is being
introduced. Would you not agree that there is a wide divergence of opinion on
Mr. Spratt: I agree there is a wide divergence of opinion on that,
just as there are a wide diverse of offenders and types of offences, which is
why discretion and paying attention to the differences among those are things
that should be encouraged instead of discouraged.
Senator Wallace: As you said in response to Senator Angus' question,
you do represent the accused. You represent defendants, and that is your
perspective. Thank heavens you are there to do that important job, but that is
The Chair: Senator Wallace, if we have time for a second round, you
will be on it.
Mr. Spratt: I am a criminal defence attorney, and it is my job to
ensure that the process is fair to accused people who are presumed innocent.
Senator Joyal: I remind honourable senators that that is the
fundamental principle on which the criminal justice system of Canada is based.
Mr. Spratt, you have explained to us the impact that these amendments could
have on plea bargaining. On the basis of your experience, how does it work when
a Crown attorney discusses with you or another defence lawyer the grounds on
which to choose negotiating with the lawyers? Is it based on the chances of
success in court?
Mr. Spratt: I have not had experience with these provisions, but I
have had experience with other provisions, some dealing with firearms. Quite
often, there is a mandatory minimum sentence, and a good example perhaps is the
impaired law. There is a mandatory 14-day minimum sentence upon a second
conviction, should the Crown attorney choose to file the notice of increased
penalty. Quite often, if the circumstances are explained — if, for example, the
family situation, the work situation, an offence on the minor end, the Crown may
choose not to file the notice of increased penalty and therefore there would not
be a mandatory minimum sentence. Similar things can occur for other offences
where there are mandatory minimum sentences. Typically, in my experience, that
is how the negotiation at that point would proceed.
There is always a risk that you are left with an accused who is facing a
mandatory minimum sentence and may take a plea bargain. They may, in the face of
what seems to be a strong Crown case, take a plea bargain where the mandatory
minimum offence is withdrawn by the Crown and plead guilty for a custodial
period in relation to an offence without a mandatory minimum. Of course, an
accused at that point is in a very stressful position, and it is always
difficult, from my perspective, to ensure that the accused should be pleading
guilty. Sometimes it is against my advice, and sometimes I have to remove myself
from a case where an accused would want to do that because they are facing a
long sentence, or a mandatory sentence, should they be found guilty.
Senator Joyal: In that context, could we not consider the situation
where, for the sake of expediency of justice on the eve of a trial when there is
a list of charges, they pick and choose which one they will agree on between the
defence lawyer and the Crown attorney and try to skip the higher charges
because, on another one, the accused would accept a plea bargain?
Mr. Spratt: Yes. The short answer is yes.
Senator Joyal: When the minister was here, I counted 13 times that he
said, "We have to send the right message.'' It was a leitmotif of his
presentation. It seems to me that it does not send the right message if, at the
trial level, they pick and choose the charge on which the accused will be
brought before the court.
Mr. Spratt: The placement of the discretion in the Crown attorney's
hands may be problematic, but also at that point the meetings between defence
counsel and Crown are not a matter of public record. They are not in open court.
There may be a valid reason to come to that sort of agreement. There may be
valid circumstances that would justify that sort of agreement. Since it is not
in open court, victims of crime or members of the public might not be fully
informed about why that decision was taken. It would be my preference not to
have a mandatory minimum sentence, to air that in front of a judge, who is
subject to appellate review should a mistake be made, and that such matters be
of public record. In my opinion, the public is more informed that way and might
have a more accurate picture of what happened in that specific case.
Senator Joyal: Thank you.
Senator Bryden: There is much that one could say. One thing I should
make very clear is that I am not indicating that this government was the first
to discover mandatory minimums, but they sure know how to pile them up. I was as
much opposed to mandatory minimums when they first came in under, I believe, the
Mulroney administration, but certainly there were mandatory minimums during both
the Chrétien and Martin administrations.
In fairness to everyone, we do not live in a bubble here. I have only been
here 15 years, although I have been involved with law for quite a long time. In
many instances, the change does come from political pressure from the police and
from all kinds of different sources, including whoever your opposition is, in
order to try for a match. For God's sake, do not pretend that you are soft on
crime, because if you do that, that is a terrible thing for a politician.
Whether it works or not, you have to appear to be hard on crime.
Senator Joyal: It is the right message.
Senator Bryden: We heard it today.
The Chair: This is a fabulous debate, but is there a question?
Senator Bryden: In any event, there is no evidence that indicates,
from any jurisdiction we were able to check, that mandatory minimums acted as a
deterrent and reduced crime.
I have two things to say. First, everyone probably knows this, but the
Supreme Court has ruled that Parliament has the right and the ability to
legislate minimum sentences. It is there. I do not know that they are
recommending that they do it. It does not violate the Charter.
Senator Angus: The Supreme Court is not recommending that they do not,
Senator Bryden: No, but they are there. Whether they are as useless,
as I think they are, that is up to the people to make a decision on that.
I will make the other point that I was trying to make with the minister in
one sentence. There has been evidence within the last three weeks that
communities that have had a reduction in crime came from them allocating — in
one instance, $1 per capita, and in another $2 per capita — for the purpose of
crime prevention, particularly in young gangs. The result of that was a 30 per
cent reduction in one instance and a 35 per cent in another community in a
Right now there is no real evidence that part of the thrust of our Justice
Department is to prevent crime. Those communities spent their money on making
sure that there were things for these people to do, ensuring that there was an
opportunity to go to university. There are other ways to make our communities
safer besides simply locking people up and throwing away the key for at least
The Chair: I was about to give Senator Wallace an occasion to make a
corresponding debating contribution, but we have run out of time. Our
interpreters must get to another building for another committee in five minutes.
Senator Joyal: Give him the opportunity tomorrow.
The Chair: We will will give you that opportunity tomorrow morning,
Colleagues, our next meeting will be tomorrow morning in this room at 10:45.
Tomorrow morning we shall hear from the RCMP, from the Canadian Association of
Chiefs of Police and from the Canadian Centre for Justice Statistics.
(The committee adjourned.)