OTTAWA, Wednesday, February 1, 2012
The Standing Senate Committee on Legal and
Constitutional Affairs, to which was referred Bill C-10, An Act to enact the
Justice for Victims of Terrorism Act and to amend the State Immunity Act,
the Criminal Code, the Controlled Drugs and Substances Act, the Corrections
and Conditional Release Act, the Youth Criminal Justice Act, the Immigration
and Refugee Protection Act and other Acts, met this day at 4:15 p.m. to give
consideration to the bill.
Senator John D. Wallace (Chair)
in the chair.
The Chair: Good afternoon and welcome,
Senate colleagues, invited guests and members of the general public who are
viewing today's proceedings on the CPAC television network. I am John
Wallace, senator from New Brunswick, and I am Chair of the Standing Senate
Committee on Legal and Constitutional Affairs.
Colleagues, today we begin our consideration of
Bill C-10, An Act to enact the Justice for Victims of Terrorism Act and to
amend the State Immunity Act, the Criminal Code, the Controlled Drugs and
Substances Act, the Corrections and Conditional Release Act, the Youth
Criminal Justice Act, the Immigration and Refugee Protection Act and other
Acts. This bill groups together nine bills that have been dealt with
separately during the Third Session of the Fortieth Parliament.
Bill C-10 was first introduced in the House of
Commons on September 20, 2011, by the Minister of Justice, the Honourable
Rob Nicholson. The bill underwent several weeks of consideration in the
house before being introduced in the Senate on December 6, 2011. As part of
its legislative process, the Senate refers the study of most bills to
various committees in order to allow for a more detailed and thorough
examination. Senate committees often invite individuals, experts,
stakeholder groups, public servants and ministers of the Crown to appear
before them in order to receive information that is relevant to the bill
under consideration. Bill C-10 was referred to this committee by the Senate
on December 6, 2011, for further study.
In order to complete our examination of the
bill, this committee intends to hold extended and additional hearings. As a
result, we have scheduled 11 days of public hearings, including all-day
meetings during the week of February 20 to 24, 2012. These hearings will be
open to the public and also available live, via webcast, on the parl.gc.ca
In addition to the ministers and departmental
officials who are with us today, we will hear testimony from victims and
their families, academics, legal experts, law enforcement specialists and
youth advocates, as well as representatives of various associations,
stakeholders and others working in the field of criminal justice. In total,
the committee has invited approximately 110 witnesses. More information on
the scheduling of witnesses can be found on the parl.gc.ca website under the
heading "Senate Committees."
Before introducing our distinguished guests who
are joining us today, I would first invite each of our Senate committee
members to introduce themselves and identify the region that they represent.
Senator Baker: My name is George Baker, and
I represent Newfoundland and Labrador.
Senator Joyal: Serge Joyal, from Quebec.
Senator Cowan: Jim Cowan, from Nova Scotia.
Senator Fraser: Joan Fraser, from Quebec,
and deputy chair of the committee.
Senator Jaffer: Mobina Jaffer, from British
Senator Chaput: Maria Chaput, from
Senator Lang: Senator Dan Lang.
Senator Angus: Senator David Angus,
Senator Dagenais: Jean-Guy Dagenais from
Senator Fraser: Linda Frum, from Ontario.
Senator Nolin: Pierre Claude Nolin, from
Senator Runciman: Bob Runciman, Ontario,
Thousand Islands and Rideau Lakes.
Senator Boisvenu: Pierre-Hugues Boisvenu
The Chair: Thank you, colleagues. I would
point out that Senators Nolin and Cowan, who are with us today, are not
members of the committee, but, as senators, they do have —
Senator Cowan is ex officio? Sorry about
that, Senator Cowan. We do not see enough of you.
Senator Cowan: You may get your wish.
The Chair: Indeed.
Senator Nolin is not a member of the committee,
but, as are all senators who wish to, he is able to be here today since he
has an interest in this topic. Welcome, senator.
As well, we have our clerk, Shaila Anwar, and
our research analyst, Robin McKay, who do wonderful work for us.
To begin our public hearings today, I am very
pleased to welcome our first panel of witnesses beginning with the
Honourable Robert Nicholson, Minister of Justice and Attorney General of
Canada, and the Honourable Vic Toews, Minister of Public Safety.
Accompanying Minister Nicholson from the Department of Justice Canada, we
also welcome Catherine Kane, Director General and Senior General Counsel,
Criminal Law Policy Section. Accompanying Minister Toews from Public Safety
Canada, I am also pleased to introduce Mary Campbell, Director General,
Corrections and Criminal Justice Directorate, and Larisa Galadza, Senior
Director, National Security Policy.
Minister Nicholson, I understand you wish to
make an opening statement, after which we will hear from Minister Toews. The
floor is yours.
Hon. Robert Nicholson, P.C., M.P., Minister of
Justice and Attorney General of Canada: Thank you very much.
First of all, I would like to welcome Senator
Dagenais. I think he will be a welcome addition to this committee. I have
known him over the years and know of his interest in this area. I certainly
wish him all the best, as everyone here does.
I am pleased to appear before this committee as
you begin your analysis of and hearings on Bill C-10, the safe streets and
I am happy to address the members of the
committee as it begins its review of Bill C-10, the Safe Streets &
One of the greatest responsibilities we have as
a government, of course, is to protect Canadians and to ensure that those
who commit crimes are held to account. Canadians deserve to feel safe in
their homes, and that means that violent criminals need to be off our
streets. By moving quickly to reintroduce the safe streets and communities
act, our government is fulfilling its commitment to hold criminals fully
accountable, to protect families and to stand up for the victims of crime.
Last week I met with my provincial counterparts
at the Federal-Provincial-Territorial Meeting of Ministers Responsible for
Justice and Public Safety. My discussions there confirmed widespread support
for the safe streets and communities act. My counterpart in Saskatchewan,
Minister Don Morgan, said it best when he said this:
The point I’d like to make to everybody
is that these are things that were asked for by most provinces when
we went through federal-provincial-territorial ministers meetings
earlier. When we had the discussions, nobody came and said, "Do not
do it unless you agree to pay for it." Everybody
said these are things we need to make our communities safe.
Since taking office, we have increased support
payments to the provinces and territories by 30 per cent, or $12.7 billion.
In Budget 2010-11, we announced transfer payments to the provinces and
territories of $54 billion, an increase of over $2.4 billion from the
The fact is that the cost of crime on society
far exceeds the cost of fighting crime. The Department of Justice estimates
that the cost of crime on society is nearly $100 billion. The safe streets
and communities act is targeted and specific legislation. Our experience
shows that toughening sentences does not create new criminals; it just keeps
the existing ones in jail for a more appropriate period of time. A major
component of the safe streets and communities act goes after the source of
the illicit drug trade, the drug traffickers. If you asked any parent, I am
sure they would tell you that the last thing they want is for their child to
become addicted to drugs. The sad reality is that that happens all too
Chuck Doucette, a retired RCMP officer and an
expert in these gang wars, blames weaker sentencing, in part, for
contributing to the problem. This is one of the reasons why the government
has introduced this bill. Contrary to what some opponents say, we are not
looking to go after substance abuse victims or experimenting teenagers. We
are making no changes to the laws with respect to simple possession. In
fact, the legislation we have introduced has a specific exemption to allow
for the use of drug treatment courts so that those who are unfortunately
addicted can get some help.
Another major component of the safe streets and
communities act goes after child predators. No parent wants their child to
fall prey to a pedophile. In fact, parents list abduction and sexual
exploitation as two of three concerns facing Canadian children.
The safe streets and communities act introduces
two new amendments to the Criminal Code. The first amendment corrects a gap
and makes it a crime when two adults conspire to set up a child for
exploitation. The second amendment makes it a crime to give a child sexually
explicit material for the purpose of grooming that child for sexual
exploitation. Any story on child pornography, whether it is about the
pedophile who perpetrated the act or the one who watched it online, outrages
each and every one of us. This is why we are taking steps to better protect
The safe streets and communities act will go
after criminals who sometimes get to serve their sentence within the luxury
of their own home. Our legislation will reform the Criminal Code to further
restrict the use of conditional sentencing, or house arrest as it is often
called. Criminals convicted of serious and violent crimes, like sexual
assault, kidnapping and human trafficking, must serve sentences that reflect
the severity of their crimes.
Lastly, the safe streets and communities act
will better protect Canadians from violent and repeat young offenders. We
are proposing fair and appropriate measures to better handle youth crime.
These measures are balanced, effective and responsible. Our approach
respects the rights of the accused without allowing these rights to take
precedence over other interests, such as community safety.
Parliament has seen and debated all these
measures over the course of the past four years. The Justice Committee has
spent 67 days reviewing the components of this bill. That is 139 hours of
discussion, 95 hours of debate, 261 speeches and 363 witness appearances.
I encourage all senators to work together to
pass this bill expeditiously. By moving quickly on the safe streets and
communities act, you are better protecting families and holding criminals
accountable for their crimes against law-abiding Canadians.
Thank you very much. I believe my colleague,
the Minister of Public Safety, will say a few words.
Hon. Vic Toews, P.C., M.P., Minister of Public
Safety: Thank you, Minister Nicholson, and thank you, senators, for the
opportunity to be here with my colleague to assist with your deliberations
in respect of this bill, the safe streets and communities act.
The bill before you today contains a number of
measures pertaining to my portfolio, including measures to help ensure that
the corrections system actually corrects criminal behaviour, that victims
have a greater voice in the justice system and that offenders are fully
accountable for their actions. Law enforcement officials, victims'
advocates, provincial governments and many other stakeholders have asked for
the changes incorporated in the bill for many years. Our government is proud
to be delivering for them.
Conservatives believe that investing in
measures to keep Canadians safe is money well spent, and Canadians have
provided us with a strong mandate to continue with the very good work that
we have already completed. I want to thank the Senate for their work in
assisting the house in the completion of that work.
This bill builds upon our record in several
ways. First, the legislation before you today proposes amendments to the
Corrections and Conditional Release Act that will enshrine victim
participation in conditional release hearings and keep victims better
informed about the behaviour and management of offenders. It will increase
offender accountability by modernizing disciplinary sanctions and adding a
requirement in law to complete a correctional plan for each offender. It
will authorize police to arrest an offender who appears to be breaking their
release conditions without the need for a warrant; and it will emphasize the
importance of considering the seriousness of an offence in making decisions
Second, the safe streets and communities act
also proposes amendments to the Criminal Code that will replace the term
"pardon" with the more appropriate term "record suspension." It will require
the Parole Board of Canada to submit an annual report to Parliament that
will include statistics on the number of applications for record suspensions
and the number of those accepted. It will extend the ineligibility periods
for applications for a record suspension from three to five years for all
summary conviction offences and from five to ten years for all indictable
offences. It will ensure that those who are convicted of sexually abusing
children never receive a record suspension. It will ensure that those who
have demonstrated clear contempt for the law by incessantly committing
serious offences are not eligible for record suspensions.
Third, the safe streets and communities act
will amend the International Transfer of Offenders Act to recognize that the
protection of Canadians is paramount. Bill C-10 will also help to protect
victims by giving the minister discretion to deny a transfer when the
offender has a potential to place the safety of a victim at risk. It will
help to protect the safety of family members and children by giving the
minister discretion to deny a transfer when the offender would put the
safety of children at risk. As well, the bill before you today will provide
that other considerations, such as whether an offender has participated in
rehabilitation programs, may be considered in assessing offender requests
for transfer to Canada. All in all, the legislation will help to ensure that
Canadian offenders who request a transfer are treated fairly and equitably
and that an appropriate decision-making framework is in place to consider
There are many ways that Bill C-10 delivers on
our government's ongoing commitment to build safer streets and communities
for all Canadians. There are many ways that the legislation before you today
delivers on our government's commitment to stand up for victims, including
victims of terrorism. The bill will create a cause of action to allow
victims of terrorism to sue perpetrators and supporters of terrorism for any
loss or damages that occurred as a result of terrorist acts committed
anywhere in the world on or after January 1, 1985.
Amendments that were passed in the other place
will further strengthen these important provisions in two ways: First, the
amendments will lighten the burden of proof on victims of terrorism by
creating a presumption of causation of damage; and second, the amendments
will establish that a plaintiff’s Canadian citizenship or permanent
residency would be sufficient for a court to hear a matter. This would be
the case even where there is no other real and substantial connection
between the action and Canada.
Our government is committed to ensuring that
all provisions within Bill C-10 are as strong as possible, including those
pertaining to victims of terrorism.
Thank you, Mr. Chair.
The Chair: Thank you, ministers. We will
move to questions. My understanding, ministers, is that you are able to be
with us for an hour.
Senators, please keep that in mind and keep
your questions as concise as possible. There are many areas we want to
cover, and we want everyone to have an opportunity to ask their question.
Senator Fraser: Ministers, welcome back to
the Senate. It is always instructive for us to hear from you. My first
question is to the Minister of Justice, Mr. Nicholson.
Minister, this bill includes a number of new or
increased mandatory minimum sentences — a bit of a hallmark in a number of
pieces of legislation you have sent to us. I am trying to figure out the
interrelationship, if any, between the various mandatory minimums. For
example, I am struck by the fact that if you grow six marijuana plants for
the purposes of trafficking, which could be giving to your neighbour over
the back fence, you can get a mandatory minimum of six months. However, a
child sex offender can get as little as 30 days for making sexually explicit
material available to a child. How do you settle upon the mandatory
minimums? What is the underlying principle that determines the length of
Mr. Nicholson: Again, with respect to child
sexual offences, we were very clear that it would be comprehensive in the
sense that no matter what offence you inflict upon a child, you are looking
at jail time. You will notice, though, that there is a wide range, depending
upon the seriousness of the crime. Indeed, they are all serious, but they go
up to life.
Senator Fraser: I am talking about
Mr. Nicholson: Again, there are minimums,
as you point out, and there are maximums. It is important to point out that
a wide range of discretion is given to the courts to have a look at this and
gauge the seriousness of the individual crime. All of these crimes are
despicable, but we made it comprehensive so that no matter where you get
charged under the Criminal Code with respect to abusing a child, you are
looking at jail time. Again, we give guidelines on the exact amount of that
jail time. In some cases, it is up to life in prison and in some cases, 14
years. I think it is appropriate.
I point out that two new offences are in there
as well that were not there before and have been added. These are the ones I
mentioned with respect to giving sexually explicit material to a child, and
for two adults, which covers a gap that was in the Criminal Code.
Again, I think this is appropriate, and I hope
that you will get this passed quickly.
Mr. Toews: I think what the minister has
said is absolutely correct. The reason these mandatory minimums are being
brought in is to eliminate the possibility of house arrest for these types
of offences. Whether it is one day or thirty days, the conditional sentence,
or house arrest, is eliminated.
That was very important when I was the justice
minister back in 2006, where we could not get stronger mandatory minimums,
but as long as we had the mandatory minimums, those who perpetrate sexual
assaults on children would not receive house arrest. This effectively
eliminates the conditional sentence and then gives the court full
jurisdiction to consider whatever sentence from 30 days to life
Senator Fraser: Yes, I understand that, at
least I think I do. What I am trying to find out is whether there is,
somewhere, a formula, a grid or a set of guidelines to establish what
mandatory minimums would be appropriate in different circumstances. It seems
to me that any sexual offence against a child is more serious than growing
six pot plants.
Mr. Nicholson: I appreciate that most of
our critics say "growing six pot plants." We are talking about people who
are in the business of trafficking, the people who are in the business of
abusing and taking advantage of people and endangering other people. Very
often they are part of organized crime.
We do give wide discretion to the courts on
these but, again, I will repeat it — I think I have said the line twice — we
are not changing the laws with respect to possession. We are into the
business of going after those who traffic, the people bringing drugs into
this country, the people who are in the business of destroying other
people's lives. I think we send a very clear message that this will not be
tolerated and that there are serious consequences.
With respect to the abuse of children, I
believe that any abuse of a child deserves jail time, and this bill is
consistent with that. We had a look at all the mandatory minimums that were
already in the Criminal Code in this area. As you can see, we have increased
them, and in some cases we have created whole new offences.
Senator Frum: Ministers, thank you both
very much for being here today.
I want to focus on the section that deals with
child predators. There is often talk about the crime rate in Canada
decreasing. Could you address whether that is true in the case of crimes
Mr. Nicholson: It is actually not, senator.
It is interesting that when I introduced the bill, people said that crime is
going down. I said yes, but it is going up with respect to drugs and the
exploitation of children. Yes, there are more offences with respect to child
pornography and sexual offences against children. Drug crimes are up as
I do not go anywhere, when I sit down with
those in law enforcement, where they do not tell me of the problems and
proliferation, for instance, of child pornography and how the borders are,
in a sense, ignored. This information is trafficked around the world.
One of the things that I have to congratulate
our law enforcement agencies on is that there is greater cooperation now. It
is less likely for these people to get away with this. Every so often you
will see when one of these busts is made in child pornography, for instance,
and you will see people arrested around the world. It could be 15 people in
Canada or in Britain or 30 people in the United States. This is a direct
result of the cooperation taking place between law enforcement agencies.
This is exactly what must happen.
You are quite correct, particularly with regard
to child pornography and sexual assault, that all of those are up in Canada,
and that is very unfortunate. Again, this bill deals directly with those
Senator Frum: I suppose that one of the
motivations behind this bill is to help restore Canadians' belief in their
criminal justice system.
In fact, when one looks at the proposed
mandatory minimums against child predators, it begs this question: What have
the sentences been like up until now? If there has to be a mandatory minimum
of six months for people who are creating child pornography, what kind of
sentences were they receiving before or until now?
Mr. Nicholson: If you look at the existing
Criminal Code, there are a number of mandatory minimums. One of the concerns
that we had is we wanted to make sure that no one could plead guilty to
another charge and then completely escape jail time. We do not think that is
This is why you will see, when you analyze this
bill, as I am sure you have, that it is wide ranging to cover all different
types of abuse of a child.
Again, this is part of our responsibility as
legislators. We do set maximums, and over the years various governments have
set minimums to give guidelines to the courts. That is exactly what we are
doing. We are providing guidance to the courts.
As my colleague points out, house arrest will
not be an option. You do not get to go home after abusing a child under this
and, again, I believe we give appropriate guidelines to the courts.
Mr. Toews: If I could add, I agree with the
comments of my colleague.
Obviously there were some cases where child
predators were receiving house arrest. This is simply not appropriate. We
believe it is up to the courts, generally speaking, to make the
determination as to what the appropriate sentence is, but in no case should
that sentence involve house arrest.
Since we were dealing with mandatory minimums,
I also want to clarify the suggestion that the Americans are moving away
from mandatory minimum sentences. At the risk of comparing apples and
oranges, first of all, every state that has a criminal jurisdiction in the
United States has mandatory minimum prison sentences, including the death
penalty in some cases. The point is, though, that the incarceration rate in
the United States is probably four to six times the rate in Canada. What
many of their jurisdictions do is they have mandatory minimums but they also
have sentencing guidelines. If you look at a lot of the American judgments,
the courts will say that the recommended guideline in this situation is five
years, and then they look at the facts and go up or down from there. They
have a very rigorous system of guidelines that are almost followed to the
letter by the American courts. They actually have, in addition to mandatory
minimum sentences, a very strict regime of mandatory guidelines, almost,
that the courts follow literally without exception.
We do not have that. You will see, I think, our
legislation stress the mandatory minimum. There is a much broader range in
sentences in Canadian courts. What happens often is that lower precedents
are accepted until it becomes a race to the bottom. What the mandatory
minimums do is stop that race and say you can go low, but you cannot go
beyond this point, effectively eliminating things like house arrest.
Senator Jaffer: Thank you, ministers, for
joining us. There is a lot of talk about the protection of children, and I
of course commend you for that.
I wanted to ask Minister Nicholson about
Article 3 of the Convention on the Rights of the Child, and I will read it:
In all actions concerning children,
whether undertaken by public or private social welfare institutions,
courts of law, administrative authorities or legislative bodies, the
best interests of the child shall be a primary consideration.
For me, that indicates an obligation for all
bills to be prepared in compliance with this principle.
Minister Nicholson, when you appeared before
the Human Rights Committee on December 9, 2009, you stated the following:
As with other international human
rights treaties, before ratifying the Convention on the Rights of
the Child and its two optional protocols, federal, provincial and
territorial laws, policies and practices were assessed to determine
whether they complied with the convention and the protocols.
I would like to hear from you: Does Bill C-10
violate the United Nations Convention on the Rights of the Child, and if so,
Mr. Nicholson: No, and children will be
better protected under this. As I say, we came across gaps in the law where,
for instance, two adults could be conspiring online to set up a child for
sexual exploitation, and basically this was not covered under the criminal
law. I was very pleased to ensure that this was included.
In addition, with respect to the act of giving
a child sexually explicit material for the purpose of grooming that child so
that the child thinks that this kind of activity is okay with respect to him
or her, it was important to put that in there.
This is consistent with our overall approach.
One bill we had was to better protect 14- and 15-year-olds from adult sexual
predators. I was told of a case in Toronto where a 40-year-old from Texas
had hooked up online with a 14-year-old girl. He had come to Toronto and
sexually exploited that girl. There was nothing the police, the parents or
anyone else could do about that. I remember promising them, about four and a
half years ago, that we are going to change that and that we would better
protect 14- and 15-year-olds from these adult sexual predators.
Yes, the bill is very comprehensive and
wide-ranging. However, I have absolute confidence — and I am sure you will —
that children will be better protected from these individuals with the
addition of this bill. Thank you very much for that question.
Senator Jaffer: Minister, I am pleased with
your answer. However, I would like to know if an assessment was done of Bill
C-10 with the Convention on the Rights of the Child in mind. If an
evaluation was done, can the committee get a copy?
Mr. Nicholson: I do not have any copies. I
know that whenever bills are drafted within the Department of Justice, they
take note and they analyze these things to ensure they comply with
everything, such as the Canadian Bill of Rights. That is one of the things
they do. Again, they are very careful in drafting these, because as
background they sometimes have all these other constitutional documents. I
have complete confidence in those who help us draft, under our instructions.
Senator Jaffer: I understand that you say
generally it is done, but was it done in this case?
Mr. Nicholson: Again, this bill, as with
all bills, was drafted in compliance with all constitutional and
international treaties that this country has signed on to.
Senator Runciman: Thank you, ministers. I
have a question for Minister Toews.
As a former corrections minister in Ontario, I
was intrigued recently with the press release from the current occupant of
that office, suggesting that this legislation will result in 1,500 new
occupants of provincial lock-ups, at a significant cost to Ontarians. I know
you recently held federal-provincial-territorial meetings. Did the minister
explain the rationale of the way they arrived at those figures, and if they,
in essence, hold water?
Mr. Toews: Predicting the future and the
future impact of a bill is always very difficult. We rely on the expertise
of our officials to give us some indication. We hear the rhetoric all the
time, and we dismiss that outright. Clearly, in the case of Bill C-10 and
other similar types of legislation, like the truth in sentencing
legislation, we do not believe that the rhetoric is in any way warranted.
In respect of the Truth in Sentencing Act,
which I think came into force in March of 2010, the prediction by my
officials was that the federal population would rise from 14,000 prisoners
to, today, 17,800. In fact, the real number today is approximately 14,800.
It has been stable for the last three or four months. In fact, it dropped 63
in the last month.
How is it, then, that there was such an
overestimation of prisoners? I think it is really a justification of the
philosophy that we are putting forward, which is that we are not creating
new criminals; we are simply keeping the guys who are always back out on the
street, pressuring the system, the police, the courts, the sheriffs, the
remand centres. These guys are staying in, so we will see that trickle
effect in the Truth in Sentencing Act.
We also passed in that same bill the
elimination of the two for one. In Manitoba, for example, 70 per cent of
provincial prisoners are not sentenced. They are in remand, and they all
take advantage of the two for one and three for one, which have now been
We see those kinds of provisions, in fact,
moving prisoners out of the provincial system, by and large, and into the
federal system. The federal system still has not seen the tens of thousands
that the opposition said would occur. We have seen about 800, which, I might
add, is still technically under the occupancy that we had in January of
2010, which is 15,000. I authorized the construction of 2,500 new units, but
that was for two reasons: some increase, but some very dilapidated old wings
that do need to be replaced; and also to give us more flexibility in respect
of gangs and the segregation of these individuals.
I have not seen the analysis by the Ontario
minister, but I wonder where she comes up with a figure of 1,500 for Ontario
alone. It is curious that she says it will cost us 1,500, so you have to
build us a new jail for $900 million. At the same time, she is closing down
three provincial jails and a 200-bed wing in another provincial jail.
The suspicion — and I have no reason to believe
it is; it is just apparent — is that this is a case of the province shutting
down old provincial facilities and then building a new facility and saying,
"This is the impact of Bill C-10." I have not seen any statistics. I am
skeptical of the figure of 1,500, given my own experience with my staff
analysis. I do not take anything away from what they have done. It is
difficult to predict, but I think we are on the right track.
Senator Runciman: I share your suspicion.
I have a question for Minister Nicholson with
respect to judicial discretion. We have heard and read quite a bit about the
removal of judicial discretion. If you could, I would like you to speak to
the Youth Criminal Justice Act. What I see is the expansion of discretion,
returning discretion to judges, and concerns with respect to the limitations
that were placed on judges in terms of their concerns, if they had concerns,
about a dangerous young offender going back out into the community and the
added discretion that this act will provide for them.
Mr. Nicholson: You will remember, senator,
that an important report came out of the province of Nova Scotia. It was
known as the Nunn report. It identified a small group of what was described
as out-of-control young people who were a danger to themselves and to the
public. It pointed out the limitations under the law to detain an individual
who is a danger to themselves and to the public.
If you look — as you will and as you have in
the past — at the changes we have made to the Youth Criminal Justice Act, it
is very specific and in no way takes away from — and I have made this point
before — provincial programs and the provincial ability to help these
individuals. We all want to help young people. We all want to get them back
to living productive lives in society. However, some fine tuning needed to
be done within the Youth Criminal Justice Act, and it certainly was
identified by the Nunn report. A number of changes that we have made have
been identified. Again, I hope that they will continue to have your support
because, as I say, they are very targeted, very specific and very much
Senator Runciman: Mr. Toews, related to the
new powers that have been given to the Parole Board of Canada, and I am
talking about the power to continue detention past the statutory release if
the offender is considered dangerous, might you comment on that provision?
Mr. Toews: This is a series of amendments
that, in fact, expands discretion. They can consider new elements in terms
of getting a fuller picture of who the offender is before them so that
things like the nature of the offence can then be considered rather than
simply looking at the face of the record and saying, "Well, this is this
type of offence, therefore this is how we proceed."
It is also reflected in our International
Transfer of Offenders Act to allow the minister responsible to consider a
broader picture to ensure that when we do bring these criminals back to
Canada — and everyone wants to come back to Canada. There is no question
about it. Very few prisoners want to leave Canadian prisons. I find it
remarkable that I see maybe two or three applications a year, usually by
Americans wanting to go finish off a sentence. Very few actually want to
leave Canadian prisons to go home. Everyone wants to come home, and there
are some reasons for that. Especially long-time organized crime figures who
were serving long sentences in the United States knew that as soon as they
came here, they would be out on day parole very quickly.
In addition to making changes to the law to
ensure public safety, as the minister responsible for that act, I also have
to have flexibility to ensure that public safety becomes the paramount
consideration in returning these individuals who have been convicted
lawfully in another jurisdiction.
Senator Baker: I would like to congratulate
both the ministers on the job that they are doing in enunciating, putting
forward and establishing government policy, as the government has proclaimed
and as they proclaimed in the last federal election.
Mr. Nicholson: Thank you very much.
Senator Angus: Beware of Baker bearing
Senator Baker: Minister, I noticed you have
a cold. Under this bill, if I were to offer you an Atasol 30 that has been
prescribed to me, or a Tylenol 3 or a Tylenol 4, then that is trafficking
because there is codeine in that pill, and there is case law to prove that
it has been prosecuted in the past. If I did it twice and we were here, I
would be subjected to a mandatory minimum of one year in jail. If I did it
twice and the second time we were at the University of Ottawa campus, it
would be a mandatory two years in jail.
The problem with that, of course, is that the
mandatory minimum does in fact work where you have levels of gravity and
seriousness within an offence: assault divided into many categories —
assault with a weapon, assault causing bodily harm; dangerous driving,
dangerous driving causing bodily harm, causing death; murder, second degree
murder. There are various levels, but trafficking is trafficking.
The question becomes, if these mandatory
minimums come into effect, which they will, then where is the fail safe
here? Are we expecting the police not to prosecute when the trafficking is
of a relatively minor nature? Trafficking is trafficking. Life imprisonment
is your maximum for trafficking. Are we trusting the prosecutors to say, "We
are not going to bring in the record of their first conviction in order to
save someone from that mandatory jail term?" How is it envisioned in this
legislation that these relatively minor offences, like me offering you an
Atasol 30, does not make me end up in jail for two years?
Mr. Nicholson: Senator, first of all, with
respect to trafficking, it is a question of fact in each particular case. In
your interesting example, you are just trafficking or sending around pills
that have codeine in them. I am not familiar with the actual medication that
you indicated. Even with respect to the schools, you will see that there are
provisions that exist within the Criminal Code that there must be a
substantive amount. Now, most times, what happens is people say, "Oh,
someone is trading a joint at the school." There are specific requirements
in the Criminal Code that talk about, for instance, three kilograms.
Senator Baker: That is marijuana.
Mr. Nicholson: That is right, with respect
Senator Baker: There is nothing for
Mr. Nicholson: I am saying to you, senator,
that the law is with respect to possession; but if you are into the business
of trafficking, if you are into the business of selling, importing,
exporting, if you are into the business of producing marijuana for the
purposes of trafficking or manufacturing these things, then you will come
within this law. I would suggest to you that if you have pills with codeine,
be very careful as to what you do with those.
Senator Baker: We will follow it up with
Getting on to the second question that I wanted
to ask you in light of the questions that were asked of you about the Youth
Criminal Justice Act, what you are removing is the section with the head
note, "detention presumed unnecessary." The presumption is that a youth, 18
years of age on their birthday, or less when the offence was committed, will
not go to jail before they are convicted.
For adults, the presumption is there.
Subsection 515(1) of Criminal Code says that a judge shall release somebody
unless the Crown prosecutor provides reasons for not releasing, and then the
next subsection says that they shall release with conditions unless the
Crown prosecutor provides reasons. I am wondering what the logic is of
removing the presumption for young people and not removing it for adults.
Mr. Nicholson: We have actually made
changes with respect to bail. You will remember me here a few years ago with
respect to actually reversing the onus regarding adult bail hearings for
individuals who have been charged or have records with guns, et cetera. It
is not universally the same with respect to that.
We are dealing with this very specific case
that I identified for Senator Runciman in the Nunn report, where you might
get a child, as there was in Nova Scotia, and there was nothing they felt
they could do with the child who was released again and again and kept
stealing cars until, unfortunately, someone was killed as a result. We are
making changes with this.
If you have private members’ bills that you
would like to introduce with respect to other aspects of bail for adults, I
would be very pleased to look at those, but we are looking at all these
areas. As you know, several years ago, I was already here with changes to
the bail hearing with respect to adults, but this bill deals specifically
with the challenges that were identified in the Nunn report, which I have
shared with my provincial colleagues.
Mr. Toews: I think that you have to see the
difficulties with the youth in the context of the specific statute. A number
of precedents essentially bound the judges to a certain course of action
when it came to bail.
Really, once you get into that kind of a
precedential situation, the only way to remedy that, if there is a problem,
is by legislation, and I think that is essentially what the report is doing.
We hear all the time in Manitoba judges saying this individual, yes, stole a
car, but they are not considered dangerous in the true sense of the word.
They are out again and again until, as in the Nova Scotia case, someone is
Senator Baker: I will pursue this with the
Senator Lang: I welcome the witnesses and
want to say that there is broad support among the Canadian public for this
legislation. Over the last 20 years or so, more and more Canadians have
started to realize that the justice system is being viewed by the offenders
with very little respect and that there is little fear of any consequences.
That is why I think we are here today.
I refer to a report from the Canadian Centre
for Justice Statistics on Police-reported crime statistics in Canada, 2010,
in which they generally report a modest decline in crime across the country.
In the same report, which has not been publicized and should be commented
on, maybe by both ministers, are the facts that the following offences have
increased: child pornography offences by 123 per cent; charges for firearm
offences by 11 per cent; drug offences by 10 per cent; criminal harassment
by 5 per cent; and sexual assaults by 5 per cent. It is also noted, and
various parts of the country have been affected, that there has been
increased crime in Newfoundland, Senator Baker's part of the world, in the
Northwest Territories, in Nunavut and in Saskatchewan, where there is a
I would like to hear your comments with respect
to this legislation and how it applies to the statistics that are coming
forward that have not been publicized but I believe should be publicized.
Mr. Nicholson: Thank you, Senator Lang.
We are bringing forward this legislation
because it makes sense to do so. Generally, I do not get into arguing with
people about whether gun crimes are up 3 per cent or 5 per cent or 10 per
cent. We identify problems when speaking with people across the country. We
were very clear with the people of Canada on four different occasions that
these are the directions that we will move in to better protect Canadians
and to better stand up for victims in this country. I am very grateful, as
are my colleagues, that the people of this country have responded in greater
numbers on every occasion. This is part of our promise to the Canadian
public that we will move forward on this.
You identify something that has been told to
me. Nationally when I speak with law enforcement agents and people who work
in the area of trying to protect children and when I have been at
international meetings with my American, British, Australian and New Zealand
counterparts, I hear the same thing: There is a proliferation and expansion
of the exploitation of children through child pornography and child sexual
exploitation. They all tell me this. I have had the discussion with Senator
Dagenais before that this greater cooperation is absolutely necessary, and
the laws of this country have to keep pace. Twenty-five years ago people
were telling us that we did not need to consider the downloading of child
pornography a crime and that we did not need a law. Well, it had to be
considered a crime and we had to move forward with that almost 20 years ago.
We have to update our laws to ensure that they respond to what happens out
People have told me that the people who bring
drugs into this country are not the unfortunate individuals who become
addicted. They are not the people who are experiment at a party. They tell
me it is organized crime. These are sophisticated operations. This
legislation sends out a message to them that there will be serious
consequences for those involved in that kind of activity, such as bringing
drugs into this country. It lets those individuals who are into the business
of sexually exploiting children know that we are on to this by updating and
modernizing our laws. We are sending out a message as well that there are
serious consequences for those who sexually molest a child or are in the
business of producing child pornography.
Again, we are part of a worldwide effort to do
something about these issues. I am very pleased that we have this
legislation before Parliament. I hope it gets passed expeditiously, as I
said in my opening remarks.
Mr. Toews: I agree completely with my
colleague's comments about the expansion of certain types of offences in
certain parts of the country. The Criminal Code, though, has to apply across
the board. I, as well, do not get too hung up on the statistics. I am more
concerned about whether there is danger out there. If an individual poses a
danger to the ordinary citizen, then that individual should not be on the
street and should be dealt with in that way. I do not care whether the
statistics demonstrate that crime is down 5 per cent or 3 per cent or 1 per
cent or up 10 per cent; I am focused on danger, and that is what the
legislation is focused on as well.
If you do want to get into statistics, you have
to be very careful. We are dealing with police-reported crimes. When I
started prosecuting many years ago, we had dozens and dozens of charges
relating to bad cheques. No one gets prosecuted for bad cheques any more,
that I am aware of. Suddenly, we see a huge decrease in property crime, but
is anyone seriously suggesting that fraud does not occur in terms of
commercial activities? This gets back to my colleague's analysis that we
have to keep up with the times. We use credit cards rather than cheques, by
The other important thing that Statistics
Canada points out every five years is the victimization statistics. People
say, "Well, this is just a victim's impression." No, these are very accurate
statistics. In fact, the Americans measure their crime levels on
victimization surveys, not on police-reported crimes. When we compare our
statistics with the U.S., we are comparing apples to oranges and think that
the Americans are much worse than we are. Well, we are using a totally
different set of statistics, as a general rule — police-reported crimes as
opposed to victimization surveys.
When you compare apples to apples, as the
Vancouver Board of Trade did in a very interesting study, you see that the
highest rate of property crime offences in the United States and Canada was
in Vancouver; second, they said at that time a couple years ago, was in
When you compare apples to apples, suddenly
there is a whole different picture. I say, let us not talk about statistics;
let us talk about danger. I want individuals to be safe on the streets
during the day and during the night. If there is a danger to them, then that
danger needs to be addressed. This legislation does that.
Senator Lang: One other area I would like
to move to is the question of trafficking, which Senator Baker brought
forward, and discuss the question of whether you can give a person a codeine
pill and not be charged. I would like some comfort in knowing that will not
happen. I believe it will not happen and that it is not trafficking. I would
like to hear your comments on that.
Second, I would like to hear your comments on
the requirement of six plants. I would like to hear this for the record. My
understanding is that six plants can mean up to as much as $20,000 worth of
marijuana on the street at any given time, depending on the value. Is that
how that benchmark was arrived at? Perhaps you could explain further.
Mr. Nicholson: It is a question of fact in
each particular case. With respect to the six plants, most critics of this
bill will say that we are trying to lock up some poor fellow who has six
plants in his kitchen, but they forget to mention that the individual must
be in the business of trafficking. When law enforcement agents have talked
about this, the guy might have cleared out 100 plants the day before and
have only half a dozen left. Does that mean he was not trafficking or that
this is not a serious matter?
Again, we have been very specific with respect
to that, and it is a question of the facts in each particular case. If you
are in the business of growing marijuana plants for the purposes of
trafficking, you will be caught by this legislation, and I think that is
appropriate. As I have been told by law enforcement agents, very often
marijuana is the currency that brings harder drugs into this country. This
is part of the exchange, and so we send out the correct message that these
marijuana grow ops are a huge problem of safety and health. Again, this bill
targets those individuals who get involved in that kind of activity.
The Chair: Minister Toews, to your comment
that your focus is on removing threats from the street, obviously the idea
is to provide enhanced protection to the public. It is obvious, too, that
there is a need to do everything possible to prevent reoffending, which
raises the issue of rehabilitative services and programs. I am wondering
what you can say about the importance of rehabilitation services and
programs and how that factors, if at all, into your considerations in your
department's initiatives as they relate to Bill C-10?
Mr. Toews: For me, rehabilitation, training
and mental health services are absolutely essential to the broader criminal
justice system. I have worked very closely encouraging Corrections Canada to
upgrade training, to get new agreements with the colleges and trainers and
to get education. The only way we ultimately beat crime is by educating
these individuals once they are in prison. I would like to see them educated
before they get to prison, and so I am very pleased to see things such as
Dr. Lloyd Axworthy is doing at the University of Winnipeg, sort of breaking
down the barriers at that university, getting young Aboriginal kids in the
downtown area to get that association with the university. This is very,
very important. However, I will tell you, when we have those people in our
prisons, let us not waste that time. I have said to Commissioner Head over
and over and over again, "Let us strengthen our training and strengthen
CORCAN." There are regulations and bureaucracy in the way that I think
everybody recognizes are just impediments to getting training and work done.
We are working on that, and so I see that as absolutely essential to the
overall rehabilitation of individuals.
The other thing is mental health. What we have
seen, essentially, is, in many ways, a breakdown of the delivery of the
mental health system at the provincial level, where institutions were
emptied and people were put out on to the street. The theory was a good one:
that we provide these individuals with support and, therefore, they do not
need to be in an asylum. I use that word in the best sense of that word, in
the old sense of that word.
The problem is that many of these individuals
do, in fact, need care 24 hours a day, 7 days a week, and it is not good
enough to have intermittent care. We really have to re-examine the whole
issue of whether we made a mistake. I say that if we are going to put
mentally ill people in an institution, let us work with the provinces to put
those people into an institution that focuses on health rather than on penal
consequences. I think we have a lot of work to do in that respect. I am
proud of the work our government has done and of the amount of money we
poured into federal institutions in that respect. I do not want to say that
when we come here all we talk about is getting the bad guys off the streets.
Certainly that is my primary obligation, but in terms of rehabilitation, we
have opportunities that we should not waste when these guys — and most of
them are guys — are locked up for a period of time.
Senator Joyal: My question is addressed to
the two ministers we have the privilege of hearing this afternoon.
Minister Nicholson referred in his opening
statement to the meeting of provincial ministers of Justice that took place
last week, and in particular to the essential cooperation between the two
levels of government to ensure the coherent administration of justice.
Minister Toews mentioned earlier that his
department, the Department of Public Safety, had tended to overestimate the
number of inmates who were incarcerated following the adoption of a certain
number of bills.
You gave statistics that inmates are now at the
level of 14,800, instead of 15,000 or 16,000.
Mr. Toews: Instead of 17,800.
Senator Joyal: In other words, I think it
is fair to say that you and the provincial ministers are of the opinion that
there will be an increase in inmates due to all the legislation — the bill
adopted by Parliament in previous years, this one and maybe others that the
government might want to contemplate.
Do you think that the overall impact of that
legislation on the provincial budget for the administration of justice and,
of course, for the maintenance of prisons will be serious? One can quarrel
about whether it is $1 million, $1 billion, $900 million or $500 million.
The Minister of Quebec mentioned $500 million. The Ontario Minister of
Justice mentioned something close to $900 million. I know that some
ministers in the Maritimes also have concerns. Would you be open to the idea
of establishing a joint committee with the provinces to monitor the increase
in inmates and the impact of that on provincial budgets, and also, at a
point in time, to reopen discussions of a shared kind of bill, to have that
level of cooperation that you expect to maintain with the provinces? You
mentioned rehabilitation and mental institutions. They fall under provincial
jurisdiction. Would you be open to such an idea, which is practical and
which would alleviate the fear of your provincial counterparts that the cost
of all those bills — not only Bill C-10, but all the other ones adopted in
the past — would be meaningful? Would you share the statistics with them so
that we have coherent cooperation between the two levels of government
instead of both sides making political speeches to say no, to say yes, to
say you got enough money and so on? We can debate on those grounds, but in
real terms there is one taxpayer in Canada, and it is the same one who foots
the bill. Would you be open to that idea, or is it something that at this
stage you would prefer not to accept?
Mr. Toews: Actually, senator, I think that
there is a lot of merit in that. I guess we could quibble about the
structure of that, but that type of committee already exists in terms of
sharing that type of information between the provinces and the federal
government, because we recognize that it is a joint responsibility. As the
Minister of Justice pointed out at the beginning of his comments, many of
these changes were made at the request of the provinces. They recognize that
there is an issue with respect to cost. We bear that cost in our
constitutional sharing of responsibilities. That is something that happens.
Now, I have to point out that since we came to
power there has been an increase of about $12.9 billion in transfer
payments. We feel that we are being generous in that sense. We have not held
the line at those types of transfers, as we have done with health care and
with social transfers as well.
If a province comes to me and says, "Look, we
have a certain increase in population because of the bill," then what you
get into is the decision that if we have had an increase in mental health
problems in federal penitentiaries because of their policies, do we then
send them a bill and say, "We have to build new wings in our federal
penitentiaries because of your provincial policies"?
It is a difficult issue to untangle all of
this. I think we have been fair with the provinces, but I certainly agree
with your proposition that we need to cooperate in terms of the discussion.
That needs to continue, and I encourage my department to have that function
with the provinces in order to monitor any increases or changes that are
Every year at the
federal-provincial-territorial ministers' meetings we discuss these types of
issues, and it is in that context that the Ontario minister said she needs a
certain amount of money. We did not raise the issue that we need a whole lot
of money for patients who come under essentially provincial jurisdiction,
but a failure of that provincial health system has resulted in these
individuals being here.
In my opinion, the better approach is to look
at how we deal with the issue of mental health. We were not going to solve
it by ourselves as a federal government in a penitentiary. I believe that we
need a much more comprehensive approach to deal with the mentally ill.
The Chair: I regret having to interrupt you
at this point. I just received word that the ministers are required back in
the house immediately. As a result, that will be the end of the questions
that we are able to pose to the ministers.
The good news is that we do have with us
officials from both departments, some of whom are at the table now, and
others are here as well. They are prepared to remain with us for an extended
period and we will continue.
Senator Nolin: Officials cannot answer
policy questions; is that right?
Mr. Toews: That is correct.
Senator Nolin: I have policy questions for
Mr. Toews: We will have to make that
arrangement some other time. We have a vote; I am sorry.
Senator Nolin: Are you afraid, ministers?
The Chair: I will come back and address
that in a moment, Senator Nolin.
We will suspend and allow the ministers to
leave and return to the house. On your behalf, I want to thank the
ministers. It was very informative and helpful to us.
Colleagues, as I said before, the ministers
were compelled to leave, but we do have numerous officials from both the
Department of Justice and Public Safety with us. We have quite a contingent
at the end of the table, and hopefully I have everyone in my introduction.
Catherine Kane, who I introduced earlier, is
still with us. As well, joining her from the Department of Justice is Carole
Morency, Director and General Counsel, Criminal Law Policy Section. We also
have, again from the Department of Justice, Paul Saint-Denis, Senior
Counsel, Criminal Law Policy Section. Welcome back, Mr. Saint-Denis. We have
Paula Kingston, Senior Counsel, Youth Justice and Strategic Initiatives
From the Department of Public Safety, we have
Mary Campbell, who I introduced earlier; Larisa Galadza, Senior Director,
National Security Policy, who remains with us; and we have added to the
Public Safety group Mr. Daryl Churney, Director, Corrections Policy.
Given the many topics that Bill C-10 covers,
obviously senators had great interest in this and wished to have an
opportunity to speak and question the ministers. Just because of time,
unfortunately, it was not possible. In that first round, committee members
Angus, Chaput and Boisvenu unfortunately were not able to question the
ministers, and we had our guest today, Senator Nolin, as well.
Without further ado —
Senator Nolin: I am not a guest. I am a
member of the Senate. I am totally entitled to be here. I am not a guest. I
am a member of the Senate.
The Chair: Yes. I apologize for improperly
describing you, senator.
Senator Nolin: You may feel that I am a
guest, but I am totally entitled to be here and ask questions and
participate in the deliberations of the committee. I intend to do that.
The Chair: Yes, you are certainly entitled
to do that. As we know, we have had the members of this committee who have
put a lot of time and effort into this and a lot of thought, and I am sure
that will be reflected in the questions that they will have for our
Senator Jaffer: Chair, may I ask a
The Chair: Yes, Senator Jaffer.
Senator Jaffer: I am concerned that with
such an important bill we would have two very senior ministers who had
introductory statements, and you let them answer questions at length, so our
time for questions was short. Having such an important bill and two
ministers for less than an hour has really tied our hands on the questions
we wanted to ask. Are we going to get the ministers back?
The Chair: It is a complex issue,
obviously, with nine previous bills being included within Bill C-10.
Senator Jaffer: Exactly. That is just my
The Chair: What appears to be a simple
question for the ministers in receiving those questions is not necessarily
an answer that can be given concisely.
Senator Jaffer: That is just my point.
The Chair: If I could just finish. Because
of that, I was giving the ministers the opportunity to answer the questions
in a way in which they were comfortable. I believe we owe it to them. Had
there been more time available, were they able to stay longer, we would have
been able to continue. We have to work within some of the constraints we
have. That was one we realized before today. We realized the ministers would
be here for an hour. Each of the committee members was advised of that, and
we have to deal with that.
Senator Jaffer: Why would we have two
ministers at the same time? That is my question.
The Chair: We have two matters. We have
matters that involve both of those departments. As well, we have Minister
Kenney from Citizenship and Immigration. There are matters that touch upon
his portfolio. He may well have been here today, but his schedule did not
permit it, and he will appear at a later date.
That is the way we had to deal with this. It
was a matter that was dealt with by the three-member steering committee, and
we recognized that that was the reality of the appearances today.
Senator Fraser: I think I am not really
breaking the seal of the confessional if I say that, in the steering
committee, we knew that an hour would be a very short time. We tried to get
more. The frustration is real, I think, for all members of the committee, as
is often the case when ministers have to dash off for votes. In this case, I
do not think anybody around this table is to blame for the situation in
which we find ourselves.
The Chair: Quite frankly, senator, I do not
believe anybody is to blame for it. The fact of the matter is that the
ministers had a certain amount of time available. We knew that, and they had
many matters they have to deal with, some of which compel them to return to
I think we have talked enough about that. I
wish there had been more time, but we worked with what we had. We will do
our job thoroughly in the process.
Having said that, we now have with us officials
from both departments. We should take full opportunity to question them,
which I am sure you will do. Without further ado, we will begin with Senator
Senator Angus: Thank you, chair, and
welcome to all of you officials. I think all or most of you have been before
As has been indicated, Bill C-10 comprises nine
pieces of legislation on varying aspects of the crime and punishment issues
that are before us. I guess it is fair to say, too, that both of those
ministers have been in front of us before, and we have had opportunities to
question them previously on these same provisions of proposed law.
First of all, it is true that there are nine
pieces of legislation, all of which we have seen before?
Senator Fraser: No.
Senator Angus: Except for one?
Catherine Kane, Director General and Senior
General Counsel, Criminal Law Policy Section, Department of Justice Canada:
I believe the Senate committee has seen the drug-related reforms previously.
You were about to study the child sex offence reforms this time last year
but did not get that opportunity. You have not looked at the youth justice
reforms. They were in the house only, in the other place. I believe you are
familiar with the victims of terrorism act.
Senator Fraser: In one or two of its
incarnations, that bill has been before this committee.
Senator Angus: This is what I thought. In
any event, it is not unfamiliar territory. I can remember questioning and
hearing all the same arguments of minimum sentencing and the like. It is all
Let me ask why you folks decided to bundle all
these bills into one big bill. I had a thing delivered to my office, and I
am not exaggerating, that was this big. I said, "What is that?" They said,
"That is the clauses of Bill C-10, of all these nine bills, in fact."
Ms. Kane: Senator, you are correct.
Senator Angus: I think this is what is
known in the trade as an omnibus bill; is that correct?
Ms. Kane: We do not use the term "omnibus."
It is comprehensive. It rolls together the nine bills that you mentioned,
and hence the enormous size of the clause-by-clause briefing book, which is
basically the same briefing books for all the nine previous pieces of
legislation rolled together and reordered because the bill had to be
reordered to some extent. The bill is a compilation of those previous bills,
which reflects the commitment of the government to reintroduce them in a
comprehensive manner, and that is why you have Bill C-10 in the shape that
it is in now. There are some threads of common interest all about tackling
crime and better protecting victims in that bill.
We use the term "omnibus" usually to refer to a
bunch of miscellaneous provisions that we pull together over a period of
time when there is no other legislative vehicle to make those reforms, so
this is really not an omnibus bill; it is a comprehensive bill.
Senator Angus: I will accept that. I am
sitting on this side of the table, and I am not being churlish; I really am
intrigued. I actually made the effort to go through that document. We had a
crane hired to bring it up to the ninth floor office. I thought to myself
that we have been all through that piece of legislation. I have questioned
it three ways to Sunday. I have heard psychiatrists and people from every
John Howard and Elizabeth Fry Society in Canada asking me why could we not
have at least kept that separate and whipped these things through. We were
right on the verge of passing them.
I have been around here just coming up to 20
years. I find it really hard now to compartmentalize all this material in a
Ms. Kane: Certainly all of my colleagues
and I can help you sort out what is where and answer any questions. That is
why there are so many of us. We are holdovers from the bills in their
original state, so the experts on all of those are here.
Senator Angus: It is good of you to all
come and be there for us, but as Senator Jaffer pointed out, it would have
been easier to have one minister and deal with one thing at a time. We were
not able to do that, and that is fine. I support the government very
enthusiastically, but I am trying to understand why, from a practical point
of view, we are in this situation.
I have a question. I do not think it is a
policy question, and therefore I feel that it is in order. Let me put it
this way: I understand that some or all of these nine bills were actually
asked for and supported by the provinces and territories; is that correct?
Ms. Kane: Yes, that is correct. Many of the
reforms that have found their way into this bill and the predecessor bills
were the subject of federal-provincial-territorial discussions over several
years. For example, the conditional sentence reforms were discussed with
provinces originating over about six and a half years ago. There has been
previous conditional sentence legislation. This is a follow-up, perhaps not
exactly what the provinces and territories had discussed or recommended but
certainly had their genesis there. Similarly, the youth criminal justice
reforms, as the minister indicated, the genesis, a great deal of
consultation, not just provinces and territories but stakeholders in
general, and the implementation of many of the recommendations of the Nunn
As Mr. Saint-Denis will answer if there are
drug-related questions, many of these issues in general are discussed at
federal-provincial committees. We are guided by the input of provincial and
territorial colleagues. We have a number of committees that meet regularly
over the course of the year on various issues. We get provincial and
territorial input on emerging issues, problems with implementation of the
current law and so on. Those same issues are discussed at FPT deputy
ministers' meetings and ministers' meetings where provinces continue to ask
for additional reforms, as well as many of the reforms that have already
been proposed or enacted.
Senator Angus: I just started addressing
this legislation with an understanding, rightly or wrongly, that I want to
clear up now on the record. Is it correct that the provinces and territories
support the intent of all aspects of Bill C-10?
Ms. Kane: I understand that your committee
may be hearing from some provincial representatives and that question may be
better put to them. As Minister Nicholson indicated at last week's meeting
of federal, provincial and territorial ministers, there was a great deal of
discussion about this bill. The overall thrust was support for the vast
majority of the provisions. Some provinces have particular concerns about
aspects of the bill in terms of how they will implement them in the short
term. They have called for collaboration with respect to the staggered
implementation and so on. Much of that information was in the communiqué
that came out of the ministers' meeting. However, I could not say that every
province and territory would say that they wanted every single provision of
this bill because that is not what I heard arising out of the aftermath of
that meeting. There is general support for proposed legislation that
responds to crime, public safety and protection of victims. All provinces
are in agreement that those efforts need to be made.
Senator Angus: As I said, I approached it
on the basis of an understanding that there was general support for the
intent, not the cost of implementation, for example. I assiduously read all
the daily newspapers and find that some provinces and territories are quite
vociferously opposed. What parts of Bill C-10 are not acceptable, as far as
you know, to the provinces and territories?
Ms. Kane: It is fair to say that there is
no clear answer to what is acceptable and not acceptable across the board.
Certain provinces have strong support for some provisions over others. For
example, we know that the Quebec Minister of Justice of raised specific
issues about two provisions in the youth justice part of Bill C-10: one
related to lifting publication bans and the other related to whether there
was a need to include protection of society as a principle in the Youth
Criminal Justice Act. He made it clear that those were his primary concerns.
We could not say that he was 100 per cent in support of those provisions
with those two caveats.
Other provinces have noted that they need to
take into account the impact of implementation on the administration of
justice, which is a provincial responsibility. They have highlighted
particular provisions and have not indicated that they are opposed to them
but rather that they perhaps will have short-term challenges in implementing
Senator Angus: That is helpful in the sense
that it highlights the difficulties facing us, Mr. Chair. In the case of
Quebec, which Senators Dagenais, Nolin and I as well as some senators on the
other side of the table represent, there is an old tradition with which I do
not agree. Quebec ministers refuse to testify with their officials before
federal committees such as this one. They feel so strongly about these two
concerns, which you just elucidated upon, that the Quebec Minister of
Justice, the Honourable Jean-Marc Fournier, actually came here and expressed
his unhappiness with the bill. Let us have no illusions — this is not
something for which we have universal excitement.
The Chair: I would remind colleagues to
keep questions as concise as possible. We want to get as many ideas and
questions on the table as possible.
Senator Chaput: Thank you, Mr. Chair.
Essentially, I am concerned by three main
points in Bill C-10. There are others, but I would like you to explain to me
how Bill C-10 deals with my three concerns; the first is the matter of
victims. If I understood correctly, Minister Toews said: Keep victims better
That is what I understood. I wonder if we would
not do better to increase the resources available to victims. Does Bill C-10
deal with this concern? If resources were increased, this would encourage
victims to go to the police. This would create a system that would better
meet their needs.
My second concern is the absence of
consideration given to the particular circumstances of young offenders.
Several experts say that stiffer sentences have no deterrent effect on young
people. Stiffer sentences do not change things, rather, the opposite
happens. Young people are hardened. I would like you to explain to me how
this bill deals with that issue.
Thirdly, I agree that we have to imprison
criminals and that they should be punished. But I see a system based on
imprisonment rather than on rehabilitation. I heard Minister Toews say some
very nice things on the topic of rehabilitation and education. Does the bill
really address those three issue, and if so, how?
Ms. Kane: Your question deals with three
aspects, so three different people will respond. Ms. Campbell will begin
with the provisions relating to victims and the Corrections and Conditional
Mary Campbell, Director General, Corrections
and Criminal Justice Directorate, Public Safety and Emergency Preparedness:
Thank you for the question about victims. Everyone at this table knows
that victims have multiple needs, and diverse victims have diverse needs.
One of the issues raised consistently by victims is access to more
information about the progress of their case or the offender who has harmed
them. Minister Toews is responsible for the area of victims in relation to
offenders in the federal penitentiary system. We do not have responsibility
for or any control over what happens to victims where the offender is in the
provincial system. Bill C-10 contains several measures to provide more
information to victims.
One measure focuses on the location of the
offender. Sometimes victims are concerned if the offender is being
transferred to a penitentiary that is closer to where the victim lives. They
simply want the knowledge in advance, if possible, when that is going to
occur because offenders are transferred for any number of reasons. Bill C-10
will allow that information to be shared with the victim, where the person
is being moved in certain circumstances.
Another issue that officials and victims have
been concerned about is parole hearings. Sometimes a victim will come to a
parole hearing and the offender that they know or are familiar with was the
offender when the crime occurred, which might be many years previously. They
come to the parole hearing and have no idea what has transpired in the
meantime. Has the offender taken programming? Have they made efforts to
change their life?
They will get that information at the parole
hearing, but there was a feeling that it would be more useful if they could
get that information earlier on. Therefore, there are provisions to share
that information with the victim while the offender is serving the sentence,
again balancing that with any privacy or security issues.
In terms of providing more information versus
more resources, again these are multiple means. Many of the victim services
are provided by the provinces, so the federal system provides some
resources. My office runs the National Office for Victims, for example. In
this day and age, if we cannot get more resources we are always happy if we
can keep the resources we have. This is certainly an area that is regarded
as one that is extremely important in terms of resourcing.
To jump to your third point about the focus
appearing to be more on punishment rather than rehabilitation, that may
simply be a factor in terms of what matters are covered in legislation
versus those that are covered in operation. The Corrections and Conditional
Release Act speaks quite clearly to the importance of programming,
rehabilitation, treatments and work release, as the minister mentioned. This
is a large preoccupation for officials, so I would not take the absence of
more of those references in Bill C-10 as meaning they are not regarded as
I have spent the past two days meeting with
corrections officials talking about a particular work program in the trades
that would have offenders gaining trade skills and working as volunteers on
the job. We are looking at serious renewal of the trades training for all
offenders, male and female. We have a number of projects under way.
I wish we had all the resources in the world —
the minister mentioned mental health — to address those needs. Correctional
Services does what it can. I want to assure you that those programs are
regarded very seriously, and there has been no diminishment of those
Paula Kingston, Senior Counsel, Youth Justice
and Strategic Initiatives Section, Department of Justice Canada: In
response to your question about youth justice, it is very important to look
at the changes in the context of what is in the legislation. The changes
that are made are focused on repeat, serious violent offenders. For the most
part they would target a small group of offenders, but really it is
important to look at how the whole bill will still maintain the principles
of a separate youth justice system that is based on rehabilitation and
reintegration rather than a more punitive approach to youth justice.
During the committee hearings on this bill, a
lot of concern was expressed about this moving the system in a more punitive
direction, but I think it is important to look at it in context. For
instance, the protection of the public is highlighted in the legislation as
a principle. It is already in the Youth Criminal Justice Act and it names a
number of factors that lead to protection of the public. Instead of saying
that these factors lead to long-term protection of the public, it is saying
that protection of the public is achieved by these factors.
The amendment actually states that the youth
criminal justice system is intended to protect the public by holding young
people accountable through proportionate measures by promoting the
rehabilitation and reintegration of young persons, by supporting the
prevention of crime, and by referring young people to programs or agencies
in the community to address the circumstances underlying their offending
behaviour. That is the change that addresses the protection of the public.
It still retains all the specific principles that make a separate youth
Clearly rehabilitation and reintegration are
key, and this section 3 statement of principles applies throughout the whole
bill to all the legislation. Throughout the different stages of the bill,
including sentencing, there are other separate statements of principle that
have not changed that focus on reintegration and rehabilitation.
I would like to also say that the section 3
statement of principles really does emphasize the importance of
rehabilitation and reintegration to a separate youth justice system. That is
the basis of the system and that is not changing. In fact, that is being
The Supreme Court of Canada, in the 2008case of
R. v. D.B., found that a separate youth justice system based on a
reduced moral blameworthiness of young people and the fact that they are
still maturing and do not have the full maturity of adults is the reason for
a separate youth system, that they are more amenable to rehabilitation
and reintegration. That is actually a principle of fundamental justice
recognized now under section 7 of the Charter.
This is extremely significant, and those
provisions are reflected in the legislation. Those are included now, the
specific reference. In addition to the statements about reintegration and
rehabilitation, there are the additional statements about the reduced moral
blameworthiness of young people.
There is a change in the sentencing principles
to add specific deterrence and denunciation as possible objectives. The
other sentencing principles are mandatory, that it must be the least
restrictive measure and it must be proportionate, et cetera, but this will
also allow a judge in a specific case, if they feel it is appropriate and
still subject to those other principles, to add in specific deterrence. This
would not be general deterrence, which would apply to other young people,
but to this young person. For example, if there was an issue around repeat
offending, that might be something the judge could take into account.
Also, none of the amendments affect the actual
sentences in the Youth Criminal Justice Act. There are no changes to the
The Chair: I will allow one brief question
and will remind honourable senators that we are still in the extension of
the first round. We will then follow with Senator Nolin, Cowan and Dagenais.
If you could be very brief, I would appreciate it.
Senator Chaput: I will not ask any
questions, I would simply like to make an observation. According to
everything I have heard, if rehabilitation is so important, I dare say this
means that you will be assigning more staff to rehabilitation. I expect this
will be a priority, given the importance given to that measure.
Senator Nolin: I understand, Ms. Kane, that
drug-related issues will be dealt with by Mr. Saint-Denis.
We have known each other for many years. I
totally understand, Mr. Saint-Denis, that some questions may be of a policy
nature and that you are not entitled to answer those questions,
Mr. Saint-Denis, I would like to ask you some
questions solely on the clauses that concern the amendments to the
Controlled Drugs and Substances Act.
Mr. Chair, I want to ask questions and refer to
a document that is of public knowledge, an international document. I ask if
I could have that document circulated to the members of the committee and of
course to the witness.
The Chair: This relates to the matter
before the committee?
Senator Nolin: Of course it relates to the
The Chair: Do you have copies for all?
Senator Nolin: We have copies for everyone.
The Chair: Yes, have it circulated. Once
you have done that, would you identify the document?
Senator Nolin: I will do that as soon as
the document is circulated.
While the document is being circulated, you
will find in the package three documents. The first document is a report
from the Global Commission on Drug Policy, both in French and English. That
report refers to two peer-reviewed studies that are also included in your
package, but only in English. I will refer to those three documents while
questioning Mr. Saint-Denis.
Maybe before I ask Mr. Saint-Denis my question,
can everyone look at the first page of the report? You will see the
commissioners of that commission. If you look at the list of names, you will
come to the conclusion that we are not talking about second-hand
international officials; we are talking about former heads of government —
Kofi Annan, Paul Volcker, the former chairman of the United States Federal
Reserve, Ruth Dreifuss, then President of Switzerland, et cetera. You can
see by the list of the 19 names that serious people decided to tackle a
I will come to you, Mr. Saint-Denis. It gives
you the time to go through the document and refresh your mind if you have
already seen it and, if not, to at least have a first glance at it.
The Chair: Sorry, senator, on that point,
if you have questions that relate to this that you want to put to
Mr. Saint-Denis that is fine. However, I do not want, if Mr. Saint-Denis is
unfamiliar with this —
Senator Nolin: Let us ask him that
The Chair: The point is that we are not
going to take time to have him read it while we go through that process.
That would be the first question.
Mr. Saint-Denis, are you familiar in detail, or
at all, with this report?
Paul Saint-Denis, Senior Counsel, Criminal Law
Policy Section, Department of Justice Canada: I am not familiar with it
in detail. I was aware of the existence of the document but have not had the
pleasure of reading it.
The Chair: Senator Nolin, that being the
case, you can ask your questions. Again, we have time issues that we will
have to deal with. If you have questions that relate to this, then you can
certainly put those to Mr. Saint-Denis, keeping in mind that he is not
familiar with the report. Whatever the source of your questions is, you can
do that, but I would ask you to move along and again be aware of the time we
Senator Nolin: Mr. Saint-Denis, I am going
to read the text in English since the majority of my colleagues are
English-speaking. On page 5, concerning principle number one, this is what
it says: I am going to quote the text in English, and then I will ask you a
question about it.
I am referring to principle number 1, which is
on page 5, and I will ask Mr. Saint-Denis questions based strictly on the
affirmation made by that principle relating to Bill C-10. It says:
Drug policies must be based on solid
empirical and scientific evidence. The primary measure of success
should be the reduction of harm to the health, security and welfare
of individuals and society.
Mr. Saint-Denis, you were closely involved in
the drafting of Bill C-10, or at least of clauses 30 and following that
impact the Controlled Drugs and Substances Act.
Can you state today that the first principle,
which was the basis of the Global Commission on Drug Policy report, was
respected in the drafting of Bill C-10 with regard to controlling illicit
Mr. Saint-Denis: This principle was
developed by the Global Commission on Drug Policy. I should add that the
United Nations have come up with other principles that are not only
concerned with the use of statistics and empirical data to develop certain
policies, but also with harm reduction considerations.
The principle set out in this document does not
necessarily dovetail with other principles set out by other international
bodies. That said, certain policies that came from the government were
submitted to us and we implemented them. We found a way of implementing
certain directives but unfortunately, I am not aware of the factors cabinet
took into consideration to develop the directives concerning how we should
approach mandatory minimum sentences.
Senator Nolin: Again, in the report of the
Global Commission on Drug Policy, on page 15 in English, there is a section
entitled Law Enforcement and the Escalation of Violence. Both ministers
spoke at length about protecting society and ensuring the safety of
populations. I am not going to read the entire text because the chair would
interrupt me, and with good reason.
This part of the text refers to three studies,
two of which are to be found in the set of documents before you. Are you
familiar with these studies that examine the implementation of repressive
measures to control drug trafficking and the effect of these measures on the
level of violence in cities?
Mr. Saint-Denis: No. Unfortunately, I must
admit that I am not familiar with those studies.
Senator Nolin: Obviously, Mr. Saint-Denis
is the expert in the Government of Canada on drug matters, and I totally
accept his answers. Maybe, in the wisdom of the steering committee, you
would want to explore, as a matter of principle, why those principles are so
important. You would be interested to know that a former member of the
Supreme Court of Canada, Louise Arbour, is a Canadian member of that global
commission, so I am sure she would gladly accept your invitation. One of the
authors of those two studies — Canadian studies — I am sure will be able to
come and testify before the committee to inform you why more prohibition and
increased penalties are not proper ways to go in terms of trying to have a
The Chair: Senator, I have noted your
comment. Again, members of the committee and, I believe, of both parties
were aware that there were opportunities to provide suggested witnesses to
the steering committee. We received a number, and we have dealt with the
hearings on that basis. I do not recall this having been brought to our
attention earlier, but I certainly note your point. I want to be as fair
with you as I can, and I realize you put a lot of time and effort into this
particular topic. I would say, though, that the issue we are here to discuss
is Bill C-10. We have witnesses from the department here today. If there are
specific questions relating to Bill C-10 that members of this committee wish
to ask them, then that is what we will address.
The other point is that we did not have this
report before today, and I think it is somewhat unfair to ask them to
respond to that. If you have a question, regardless of what the source of
your question is, that is your choice. I would not limit you, other than
with the constraints we have on time.
Having said all that, we have these panelists
for roughly an hour. That is what we scheduled and that is what they
anticipated in coming here this evening.
We have Senators Cowan and Dagenais remaining
in the first round of questioning, and in the second round we have four
Senator Nolin: I am finished.
The Chair: Thank you. I appreciate that.
Senator Cowan: I have two brief questions.
The ministers referred to the experience in my province of Nova Scotia and
the report of Justice Nunn. Was Justice Nunn consulted in the drafting of
the provisions in this bill relating to youth criminal justice?
Ms. Kingston: No, he was not personally
consulted, although the recommendations in his report certainly served as
the basis for a number of the amendments. Justice Nunn did, however, appear
before the Justice Committee.
Senator Cowan: I believe he is scheduled to
appear, Mr. Chair.
The Chair: Yes.
Senator Cowan: The ministers also referred
to amendments. You will recall that in the house there were amendments
proposed that the committee rejected. The government tried to introduce them
at third reading, and because of some rules in the other place it was not
permissible and was ruled out of order by the Speaker. Will those amendments
in that form be presented here in the Senate and, if so, when?
Ms. Kane: Senator, there were government
amendments to a couple of provisions. Some had to do with coordinating
amendments, for example, between the drug provisions and a private member's
bill that had been passed previously, and others dealt with other parts of
the bill. I cannot tell you at the present time whether those will be
introduced or not. I think it will depend to a certain extent on what
witness testimony this committee hears.
Senator Cowan: Did I not understand the
ministers to say that there would be amendments?
Ms. Kane: I did not hear them say that in
their testimony today. Perhaps my colleagues can add more.
Ms. Campbell: I think Minister Toews
referred to amendments, but I believe he was referring to the amendments in
the bill itself. In terms of additional amendments to Bill C-10, like
Ms. Kane, I would expect Minister Toews is very interested in the
deliberations of this committee and will await the results.
Senator Cowan: You cannot tell us today
whether amendments will be proposed to the bill that we have now before us?
Ms. Campbell: The minister will want to
await the results of this committee. The time for amendments is normally at
clause-by-clause consideration of the committee.
Senator Cowan: With respect, as the chair
made clear in the beginning, there is a lot of pressure from the government
to get this done and the ministers several times said they wanted it done
expeditiously. The point is simply that we need to know what we are dealing
with. If we were preparing for questions and discussion on a dot on the bill
before us and then at some later date there will be some amendments that
will change it, and it is expected that it will all be done quickly, then we
may be wasting our time dealing with provisions that will be amended. Can
you undertake to get back to us within a day or two to indicate what
amendments will be proposed, if there will be amendments, and make those
available to us?
The Chair: If I could respond to that, I
believe, as Ms. Kane has said and as you know from past experience, senator,
those issues of amendments are dealt with during clause-by-clause
consideration. I believe what we have heard from Ms. Kane is that what
occurs in these hearings will be followed closely by everyone, including the
ministers. I think it is very irregular and inappropriate to ask that of
these witnesses. As you know, we typically deal with those issues at
Senator Cowan: With respect, chair, if the
witnesses know, they will tell us. If they do not know, they will tell us
The Chair: I think they have answered that.
I think they said they do not know.
Senator Cowan: That is fine.
Senator Angus: Maybe you will tell us about
any amendments you will be proposing and send me a copy, please.
Senator Cowan: I would be happy to.
Ms. Campbell: We can certainly convey the
concerns of the committee to the ministers.
The Chair: Thank you for that.
Senator Dagenais: This is the first time I
have sat on the committee as a senator. I wore a policeman’s cap for more
than 39 years, but I am going to try and make that transition tonight.
I listened to several speakers and to the two
ministers. You spoke about the bill. You say that young people’s rights will
be respected. Of course, you want better protection for families. You spoke
about rehabilitation programs as well, and I understand that even though the
bill provides for stiffer sentences, provision is also made for
Am I to understand that pursuant to this bill
not all young people will go to jail and that rehabilitation and reinsertion
programs have already been developed?
We hear a lot of things and I think that this
is the proper forum to ask that fairly simple question and to shed some
light on the bill.
Ms. Kingston: In terms of the Youth
Criminal Justice Act, as you know, one of the bases of the separate youth
justice system is rehabilitation and reintegration, and that is not
changing. In fact, it has been strengthened because of the decision of the
Supreme Court that raised to the level of a principle of fundamental justice
the recognition of the reduced moral blameworthiness of young people, and
part of that is on the basis that they are still maturing. They are more
amenable, some believe, to rehabilitation and reintegration. In fact, that
is why it is such an important basis of the system. Some of the changes in
the legislation target repeat violent young offenders, but the provisions
that deal with rehabilitation and reintegration are there. They are
strengthened and they are for all young people.
Senator Fraser: I have a raft of questions,
but I will try to limit myself to two. It may take me a while to get the
questions put, but the chair will lose patience if we eat up too much time,
so maybe longer questions can elicit shorter answers.
Senator Angus: He is a very patient chair.
Senator Fraser: Yes, thank goodness.
The Chair: Your question is?
Senator Fraser: My first question is on the
Youth Criminal Justice Act. It is true there is now the insertion of the
reference to moral blameworthiness, which I think everyone has been very
pleased to see. I am trying to square that with the new provisions on
publication bans where now, under this bill, even someone getting a youth
sentence — that is someone who presumably has been judged to be not only
chronologically but inside his or her head still a young, maturing person —
could still be denied the protection of a publication ban. I wonder if there
are studies, if work was done, if an assessment was done to assess how these
two things would interact.
Ms. Kingston: That is a very good question.
In fact, when you look at the way that the provision is actually drafted,
what we have now in the Youth Criminal Justice Act is a very, very limited
ability to lift the publication ban, and it is being expanded. Right now it
is basically restricted to those who receive an adult sentence or where
there has been an application for an adult sentence but a youth sentence was
The amendment in the legislation says that when
a young person is convicted of a violent offence and receives a youth
sentence, the judge must consider lifting the publication ban, but there is
a test and the threshold is very high. It says that the judge must be
satisfied that the young person is going to commit another serious violent
offence and , that that the name go out because it is necessary to protect
the public. How it ties in with your question is that he or she must
specifically take into account the principles in section 3 and section 38,
that is, the main principles of the youth justice system based on
rehabilitation, reintegration, diminished moral blameworthiness, and the
sentencing provisions as well. The main purpose of the sentence is
rehabilitation and reintegration. The judge has quite a balancing act to do,
but it is quite a high threshold.
Yes, there is a provision that allows for it,
but I think it will be only in exceptional cases after the judge goes
through all those considerations.
Senator Fraser: My second question is for
Mr. Saint-Denis. How nice to see you again, sir. I bet you thought you would
never have to be back here.
Mr. Saint-Denis: I did think that at one
Senator Fraser: This question has to do
with the Controlled Drugs and Substances Act.
In his presentation and in his remarks to us
this afternoon, Minister Nicholson said several times that the portion of
Bill C-10 concerning the changes to the drugs act is designed to go after
people who are in the business of trafficking. Now, to my lay ear that
sounds like a commercial venture: "The business of trafficking." I was
caught up short because, if my memory is correct, the legal definition of
trafficking in the Criminal Code includes giving or even offering to give a
controlled substance. To a lay ear, "the business of trafficking" sounds as
if we are talking about relatively high volumes. However, I was reviewing a
study the other day that was done for the Department of Justice on cases of
prosecution for grow ops. I do not have the study right in front of me, but
my memory is that close to 10 per cent of those prosecutions involved fewer
than 10 plants. One involved as few as two plants, which I do not think
would constitute high volume.
Am I missing something in this new version of
the bill, which we have contemplated so many times, that would orient it
solely toward the kind of people that ordinary folks think of when you use
the word "trafficking" or "trafficker" as distinct from what is actually in
the Criminal Code? Have I missed something new here?
Mr. Saint-Denis: No, you have not. The
provisions of this bill dealing with the amendments are virtually identical
to the ones you saw before in Bill S-10 with one modification, which was
brought into play in the House of Commons recently, and that was to subtract
the production of one to five plants inclusively from the possibility of
obtaining a minimum penalty where there were aggravating factors. The
provisions in this bill tend to focus primarily on the business of drug
offences, as you say and as the minister said, but not exclusively. The
minister focuses on that, but the bill is wider than that.
Senator Fraser: I am sure the minister's
intent has been clear ever since this bill was first brought in that he does
want to go after traffickers, but the bill itself, as written, can capture
way more than just big scale traffickers. It can capture quite small people.
Mr. Saint-Denis: It can; that is correct.
Senator Fraser: Have I been sufficiently
The Chair: Yes, that was very good. I
appreciate your conciseness.
Senator Jaffer: The minister said generally
an assessment is done under the UN Convention on the Rights of the Child.
What I want to know specifically is whether an assessment was done on this
bill and if we as a committee can see that assessment.
Ms. Kane: Are you referring to a particular
aspect of Bill C-10? This is a compilation of nine bills. Was it the youth
Senator Jaffer: Yes.
Ms. Kingston: Yes, as part of the process
of preparing a bill for consideration by cabinet, we must do certain
assessments making sure that it would be consistent with the Charter, with
the UN Convention on the Rights of the Child, and that was done in this case
as part of the preparation for cabinet. It was contained in cabinet
documents, and the assessment is yes, it is consistent with the UN
Convention on the Rights of the Child.
Senator Jaffer: Would we be able to see a
copy of that?
Ms. Kingston: I can check on that, but I
think it was part of a cabinet confidence.
Senator Jaffer: My other set of questions
is on mandatory minimum sentences. Have there been any assessments done as
to the effectiveness of mandatory sentences?
Ms. Kane: There are various research
reports on mandatory minimum sentences and none of them are entirely
conclusive. It depends on the questions asked and the types of offences
considered. There are some reports on the Department of Justice website. For
example, a study was done that looked at the impact of the mandatory
minimums in firearm-related offences and found that they had an impact on
The other research that we have at the
Department of Justice is not conclusive in indicating that they will bring
about one result or another. However, it depends on what impact you are
considering. The government has been quite clear that, as the minister
stated today, mandatory minimum sentences are a guideline to the court in
terms of what the starting point for sentences in serious offences will be.
In the case of Bill C-10, the mandatory
minimums for the child sexual offences will provide more consistency across
all the child sexual offences so that there will be a starting point.
Similar conduct should receive similar sentences in the range between the
mandatory minimum and the maximum. The mandatory minimum sentences imposed
in the drug-related provisions apply where aggravating factors are present.
Building on Senator Fraser's question about
being in the business, the law itself has not changed with respect to the
offences of trafficking, importing and exporting, production and so on. The
sentences have changed and the minimums apply where there are aggravating
factors. There will not be a mandatory minimum in all of the offences but
only where the aggravating factors exist, as the minister said earlier, for
the purpose of providing more guidelines and stricter parameters in terms of
the starting point for those sentences for a variety of reasons, including
denunciation of that particular conduct for that particular offender.
Senator Jaffer: I want to clarify
something. For me, a guideline means something that would be expected, but
for mandatory sentencing there is no guideline. If you are convicted of a
certain offence, you will mandatorily get a minimum two-year sentence. There
is no guideline. I believe there is confusion here.
Ms. Kane: Yes, senator, that is an
excellent point. It is not a guideline in the sense that it is optional. It
is a starting point and, again, the starting point, if it is a mandatory
minimum, should not become the sentence imposed on all offenders in all
cases. It is the point from which you work up. There are principles in the
Criminal Code with respect to the purposes and principles of sentencing,
when sentences should be increased and so on. You can move between the
minimum and the maximum, and some of these offences have very serious
maximum penalties because they are very serious offences. That is what I
meant in terms of the parameters or the guidelines between the starting
point and the maximum. The courts have that discretion.
Senator Jaffer: Just to make it really
clear, "mandatory" means they will get the minimum. There is no guideline to
Ms. Kane: It is the mandatory starting
Senator Jaffer: How will the
mandatory minimum sentences on so many offences affect the plea bargaining
Ms. Kane: Perhaps my colleague would like
to answer that in terms of the child sexual offences.
Carole Morency, Director and General Counsel,
Criminal Law Policy Section, Department of Justice Canada: With respect
to the child sex offences amendments proposed by Bill C-10, currently there
are 12 child-specific offences that carry mandatory minimal penalties.
Offences that are charged more often where the victim is a child are under
the general sexual assault provisions, for example, section 271. Eighty per
cent of cases that were in police-reported incidents in 2008 were proceeded
with under 271. There is no mandatory minimum penalty there, but if they had
been proceeded with under one of the child specific offences there would
have been a mandatory minimum.
The expectation is that by imposing mandatory
minimum penalties in all sexual offences where the victim is a child, no
matter how charged, they will all be treated consistently and you will have
less scope for plea bargaining simply for the purpose of avoiding a
mandatory minimum penalty.
Senator Jaffer: Have you done any
assessments or studies on whether mandatory minimum sentences reduce crime?
Ms. Campbell: I believe there is a wide
body of American research. In the past, this committee has heard from
American experts on this issue. I would leave that with the committee.
Senator Jaffer: Have there been any
Ms. Kane: I could refer you to my previous
answer only in that there have been studies. The Department of Justice has
looked at some of them and has done several of them. They do not conclude
one way or the other. It depends on what questions are probed in those
studies in terms of the objective of the sentence. Depending on how the
research is done and on your objective for the sentence, different results
It is fairly clear in this legislation that
these mandatory minimums are meant to do a variety of things, including
level out the sentencing for serious crimes and provide a starting point to
work from. Certainly, we in the department will be looking at the impact as
we go forward to determine the impact of those particular mandatory
Senator Jaffer: I have asked you a number
of questions on studies. Have you studied the impact of mandatory minimum
sentencing on child sex offences, which you now want to increase?
Ms. Morency: As I mentioned, 12 offences
carry mandatory minimum penalties right now where the victim is a child, 11
of which were imposed by Parliament in 2005. In developing what is now
before you in Bill C-10, we looked at how cases were proceeding since that
time to date, recognizing that is still a fairly short period of time for
cases to work their way through the court systems. Nonetheless, some
statistical evidence has been produced for this committee, in the last
session I believe, by the Canadian Centre for Justice Statistics to show
some changes in how sentencing has proceeded. Obviously, the first change
would be with those offences that carry mandatory minimal penalties — no
more conditional sentences of imprisonment for those offences.
We could see in early times an increase in the
use of custodial imprisonment because house arrest or conditional sentence
is no longer available. When looking at reported case law, again taking time
for some of that to work through, we could also see in some cases that the
imposition of mandatory minimum penalties has had the impact of shifting
court analysis of where the starting point is. Obviously, that shifts it
necessarily, but it also shifts the sentencing court’s perspective in
saying, "Well, if before we thought this case was down here, now we have to
start here." It shifts all of the analysis upwards.
Some cases have made it to an appellate level,
which has provided very helpful instruction to courts as well. Since 2005
there has been the Supreme Court of Canada decision in L.M., a 2008
decision in Quebec, that looked at a very serious case of a father sexually
abusing his child and the child's friend broadcasting it over the Internet
for profit. The court said very clearly that the maximum penalty is not
reserved for the fictional worst offender of the worst offenders. It is
reserved for what is appropriate in the facts of each case.
A number of factors come together, such as
pronouncements by higher courts in the intervening years since 2005. As
well, we see cases shifting as they work their way through the court system
and providing greater direction in terms of the range for these cases.
The other thing I would note is that also in
2005 the Criminal Code was amended to require sentencing courts to consider
denunciation and deterrence as being primary in all cases involving violence
against children. You can see this reflected routinely in all of these
cases, suggesting that everyone has appreciated the impact in these cases.
The Chair: I have a supplementary question
to Senator Jaffer's comments about mandatory minimums. It is my
understanding that mandatory minimums are quite prevalent in the Criminal
Code. They have been part of the Criminal Code for the last 30 or 40 years,
as I believe they originated in the early 1970s. Can you confirm that? Can
you give us an idea of how many mandatory minimum sentences are in the
Criminal Code today?
Ms. Kane: Currently, there are 45 mandatory
minimum penalties in the Criminal Code. Some have been added over the years.
Of course, murder has a mandatory minimum penalty as well. Some were added
as early as 1976, such as for betting and bookmaking. Some of the mandatory
minimums are at the low end. We have had mandatory minimums for impaired
driving for many, many years. Several others, as Ms. Morency mentioned, were
added in 2005 with respect to child sex offences. Others were added in 2008
with respect to weapons trafficking. Firearms-related amendments, which
included several mandatory minimum penalties, were added in 1995 when
offences were committed with firearms. A considerable number currently deal
with offences that we could consider quite serious. Once Bill C-10 is added,
there will be others, but we have a basis of MMPs at this time.
The Chair: I have three other senators with
supplementary questions on the same issue: Senator Cowan, Senator Nolin and
In the second round, we have Senator Runciman,
Senator Baker and Senator Lang. We have approximately 30 minutes allocated
for the remainder of this panel, if you could keep that in mind, please.
Senator Cowan: My question is not on the
The Chair: I thought it was a
Senator Cowan: It was, but it has to do
with the sentencing and statistics. It is a brief question.
Is there now or has there been a central body
that collects sentencing data from across the country so that we would know
the trends in sentencing?
Ms. Kane: Yes. The Canadian Centre for
Justice Statistics collects a range of data from provinces and territories
that participate in their various surveys. I am not sure whether your
committee will hear from anyone from the CCJS but it often does. They could
indicate the various sentencing-related reports that are collected.
There are usually a number of qualifiers in
terms of what is collected. It is the most serious sentence imposed for the
particular case that they are looking at, usually across nine jurisdictions.
Not all jurisdictions participate, and certain levels of court participate.
We get a good picture, but we do not get the complete picture of every
sentence imposed in every case in Canada. Certainly, it does not tell us
about other factors that went into the particular sentence. It is data about
the offence, the sentence imposed and so on, and not about the relationship
between victim and offender or other factors that the court took into
account when imposing the particular sentence on the offender.
Senator Cowan: There is participation by
provinces that wish to participate; is that correct?
Ms. Kane: Basically a body of provinces has
always participated in the various surveys that the CCJS compiles.
Senator Nolin: Ms. Morency, in the list of
the number of cases you follow, I believe I understood that a Quebec court
judge had questioned the constitutionality of mandatory minimum sentences.
Am I mistaken or is there in fact a case like
that? Does this ring a bell? Unfortunately, I do not have the reference.
Ms. Morency: I am not aware of a case
proceeding right now in Quebec on a Charter challenge to one of the
child-specific mandatory minimum penalties.
Senator Nolin: I am not limiting it to
Ms. Morency: On the matter of child
specific, I am not aware, but it does not mean that there is not one.
Ms. Kingston: I am aware of one case that
is at an early stage, and it is looking at whether mandatory minimum
penalties apply to young people who receive an adult sentence. I do not know
if that might be what you are thinking.
Senator Nolin: Is it from Quebec?
Ms. Kingston: I am not sure.
The Chair: Ms. Kingston, if you are able to
find the reference to that case and can provide it, we would appreciate
Thank you, Senator Nolin.
Senator Fraser: Coming back to the question
I put to the ministers, if mandatory minimums are being established or being
increased in a bill, while that bill is being drafted, how is the actual
level of the proposed new or changed mandatory minimum sentence established?
Who makes the decision and on what basis? I tried to find out before whether
there is a set of guidelines or principles or a grid somewhere that
indicates this kind of offence gets this kind of mandatory minimum. Is it
done in silos? I look at this bill, and it looks more like silos.
Ms. Kane: When you look at this bill, the
only MMPs are for child sexual offences and the drug offences. They are
difficult groups to compare because, as noted, the mandatory minimums in the
drug context are only applicable where there are aggravating factors. For
child sexual offences, they are across the board. Every case of a child
sexual offence will have a mandatory minimum. There is a consistency in the
child sexual offence provisions, and Ms. Morency can take us through that
Senator Fraser: I understand the coherence
of the child sexual offence. I am trying to understand more generally. If we
are going to mandatory minimums, how do we decide what to go for?
Ms. Kane: Various options are presented to
the ministers when we are proceeding with any law reform package. We look at
the other mandatory minimums already in the Criminal Code. We look at the
maximums, and presently our law has bands of maximum offences. We have life,
14, 10 and 5 and 2 years, and the summary conviction is lower. We look at
what the maximum is and what a relevant starting point would be for a
mandatory minimum. Again, for child sexual offences, we do have parity there
depending on the maximum and the minimum.
Ms. Morency: The other factor that may come
into play, depending on the area because we are talking generally, may be in
terms of what courts are doing now for sentences. We try to take a look at
how sentencing courts are sentencing, and usually you will see a range for
their starting point.
In the context of the child-specific offences
and other offences where children are victims, you will see the rationale
that Bill C-10 tries to bring forward is based on the maximum penalty, as
the minister said. If the maximum penalty is life as, for example,
aggravated sexual assault where the victim is under the age of 16, that
would carry a mandatory minimum penalty of five years. If the maximum is 14,
also five years. For 10 years, the maximum on indictment would be one year.
For five years, the mandatory minimum would be six months, and two years, on
indictment, the mandatory minimum penalty would be 90 days. That is the
approach. Then on summary conviction, there would be similar consistency
between the minimum and the maximum.
If you compare that to what is in the Criminal
Code now, there is a huge range from 14 days and up, so the intention here
was to bring clarity and consistency across the board and a rationale
between these offences as compared to other offences in the Criminal Code
that also carry mandatory minimum penalties in other areas.
Senator Fraser: I am convinced that is all
I am going to be able to figure out.
Senator Nolin: It is an interesting study
that we have had in mind to do for many years.
Senator Fraser: We thought we would look at
it but never had time.
Senator Runciman: I have a couple of quick
questions for Ms. Campbell about amendments to the Corrections and
Conditional Release Act. Talking about part of the amendments here in terms
of improving offender accountability, looking at things like correctional
plans, could you speak to the connection between offender accountability and
rehabilitation? What is the view of the ministry and the government with
respect to how this approach can enhance rehabilitation efforts?
Ms. Campbell: The two are directly linked.
One way of taking accountability is to acknowledge what you have done, why
you did it, what the causes were and what you are going to do to ensure that
you do not repeat that behaviour. That is a big component of offender
accountability, and the correctional plan is really at the heart of the
offender's time in federal custody.
When a person comes in, as I am sure you know
from previous testimony, everyone is assessed in the federal system. Their
risks and needs are identified, proper penitentiary placement is identified,
and a correction plan is developed with the offender. That plan is
essentially the blueprint for what they are going to do if they have a
four-year sentence, what they would like to do and what they need to do
during that period of time. Treatment programs will be identified in that
plan, and progress will be measured against that plan. Normally, at least
once a year, they will sit down with their correctional supervisor to review
their progress against that plan, and of course that is also one of the
foundations for parole board decision making.
That carries through even if they are released
on conditional release. There are expectations in the community. You do not
go out on parole and just get to do whatever you want. There is an
expectation on parole that you are using your time either in school or in a
job of some kind.
I think you have to see the two together, and
Bill C-10 contains a number of measures to place greater emphasis on that.
It is offender accountability very much oriented towards a plan, and the
correctional plan will now be specifically referenced in the Corrections and
Conditional Release Act and how the plan is developed. There is now a whole
section in the CCRA, whereas currently there is only passing reference to
it, if any.
Senator Runciman: I have another question
relating to that act, talking about the principles that relate to the
operation of an institution. I have a particular interest in this subject
matter, and the minister spoke about it as well, and that is mental health.
There is a principle that correctional policies, programs and practices
respect a person requiring mental health care. What are the practical
implications to that? How does that function within an institution? How do
you apply that?
Ms. Campbell: You are referring to the
principles that are intended to guide the Correctional Service of Canada in
its operations. Those principles, which originate from 1992, originally
referred to the special needs of women and Aboriginal peoples in custody.
The issue of mental health has become so pervasive and so severe that the
feeling of the government was that it required that additional emphasis in
Now, principles are guidance, as the lawyers
will be quick to point out, but they send a very important message to the
service, to people doing time and I think to the public as well. The
practical implications are to really help focus attention on this issue.
When we talk about mental illness, of course,
as in society, there is a wide spectrum. It includes everything from
relatively minor impairments to very severe mental illness. It is used as a
catch-all as well to include people with fetal alcohol spectrum disorder,
which is a very large issue in corrections. I think it is a bit of an
iceberg issue, if you like, insofar as we really only see the tip of it.
With respect to putting things in the
principles, that is the public statement about what is important in the
system and how it operates. Identifying mental health as a priority issue
will, I think, direct resources and people's activities in the system, and
it is a message to the public that that group needs special treatment and
Senator Runciman: Ms. Kingston, I do not
quite understand this and I hope you can elaborate. One of the provinces has
expressed concern related to the phrase "long-term protection of the
public." That is flowing from Commissioner Nunn's recommendations, I
understand. Can you elaborate on the need for that change, why Commissioner
Nunn felt it was needed, and how it enhances public safety?
Ms. Kingston: I believe Justice Nunn was
looking at the situation, as the minister mentioned, of a young person
spinning out of control, repeating a number of offences that were not
violent but were escalating. The main concern was stopping that repeat
violent offending before it got more serious. As part of that, he felt that
even though the statement of purpose and principles was there, that that
spoke about the things that led to long-term protection of society. He felt
that it was important to highlight protection of society as one of the main
principles. As a result of that, the provision is reordered.
Currently, the YCJA talks about holding young
people accountable, crime prevention, and rehabilitation and reintegration
leading to long-term protection of society. It was never meant to exclude
short-term protection, but I think eliminating the words "long-term
protection" is meant to encompass both of those notions so that it is
considered both long-term and short-term protection. Some of the concern
that has been expressed around that is from a province that really does rely
a lot on rehabilitation and reintegration. There is concern with changes to
those provisions, but they are not intended to detract from the work that is
being done in rehabilitation or reintegration. As I mentioned earlier, those
principles that are part of that same statement are still in the legislation
and in fact are strengthened.
Senator Runciman: It would be inappropriate
to try to get an explanation with respect to the provincial position on this
and have a better understanding of the concern, but hopefully we will have a
witness from that province who can elaborate on that because I am having
difficulty understanding it as well.
Senator Baker: Witness, you are doing a
great job giving testimony here today. It is very difficult to give
testimony when you have such a controversial bill before the Senate.
The last witness mentioned a moment ago, when
Senator Runciman, former Solicitor General for the Province of Ontario, was
asking about the Youth Criminal Justice Act and the changes, that it really
only applies to repeat offenders or that one of the objects of the Nunn
commission was repeat offenders. However, look at what is happening in this
bill. We have not seen these changes before. I just had a look at them. To
me, it is a stark contrast to what was there before. Under the Youth
Criminal Justice Act, the section is entitled "Detention Before Sentencing."
We are talking now about people who are detained but are not convicted. If
you look at the adult provisions regarding judicial interim release, section
515 of the Criminal Code, you see that there is a presumption. In fact, the
word is "shall" is used. The judge shall release someone unless evidence is
given to the contrary. The judge shall even release them after that if
conditions can be placed upon that person for their release.
When you look at the Youth Criminal Justice Act
with these changes, what do you see? The first words that you see under
these amendments are:
A youth justice court judge or a
justice may order that a young person be detained in custody only if
(a) the young person has been charged
(i) a serious offence, or
(ii) an offence other than a
serious offence, if they have a history that indicates a pattern
of either outstanding charges or findings of guilt.
Further up the page you define what a serious
"serious offence" means an indictable
offence under an Act of Parliament for which the maximum punishment
is imprisonment for five years or more."
Mischief, altering data, are 10 years maximum.
Am I misreading this? The first thing a judge
does now is to look at a youth who is charged. There are no repeat offences;
this is not a repeat person; this person has no history before the court.
However, if the person has been charged with a serious offence — I am just
grabbing "mischief" out of the air, but there are many other examples.
It continues on and then repeats the same
standard, relatively speaking, as that in 515(10)(a), (b) and
(c) of the Criminal Code, first, second and tertiary grounds.
The impression I am getting from this is that
for a youth of 18 years of age or younger, if it is the day after their
birthday, they are an adult under the Youth Criminal Justice Act and are
treated differently from an adult, which is contrary to our Charter,
contrary to our Human Rights Act. You cannot discriminate on the basis of
Has this been looked at or can you answer this
question? You do not have to answer this question if you do not want to. It
is properly put to the minister. Would you like to make any comments on it?
Ms. Kingston: You have made a number of
comments and I am not exactly sure of the question, but I could comment on
Senator Baker: I understand that.
Ms. Kingston: Again, the change is to one
section of the pretrial detention provisions in the Youth Criminal Justice
Senator Baker: I noticed that.
Ms. Kingston: The Youth Criminal Justice
Act has extra protections for young people in terms of pretrial detention.
For example, it says a young person shall not be detained in custody prior
to sentence as a substitute for appropriate child protection, mental health
or other such measures, because there is a problem in practice; if young
people do not have anywhere to go they throw them in pretrial detention. It
is specifically prohibited for young people.
In terms of the test for pretrial detention,
the change that is brought in is to address the recommendation of the Nunn
commission. It would not be for one mischief. If this young person is
spinning out of control, with a whole series of less serious offences, that
is why we see the wording "have a history that indicates a pattern of
outstanding charges or findings of guilt."
Senator Baker: I understand that.
Ms. Kingston: It is not quite as draconian
as you might have presented.
Senator Baker: Let me remind you of the
(a) the young person has been charged
(i) a serious offence, or . . .
— or an offence that shows a history of repeat.
It is one or the other, you see.
Ms. Kingston: Yes. If I could add, that
amendment was just made to the bill. Provincial representatives who appeared
before the committee argued that without that change it was too narrow, and
that amendment was then made. It was one of the three amendments that were
made between Bill C-4 and Bill C-10. That is the reason it is there. It was
considered too narrow without that.
Senator Baker: Yes. It is unfortunate that
the people who recommended the change did not look at what happens if you
are beyond the age of 18.
Ms. Kingston: The adult Criminal Code
provisions do apply and the new test actually incorporates the grounds in
the Criminal Code, but they must be read in terms of the principles of the
Youth Criminal Justice Act.
Senator Baker: That is right. A judge looks
at this change and sees if someone has committed a serious offence. What is
a serious offence? Here is a list of serious offences, or has been a repeat
offender, and that is the start. You look to your adult and the starting
point is "shall be released."
Ms. Kane: Senator, as you mentioned, this
is just the starting point.
Senator Baker: The starting point is very
Ms. Kane: The starting point is the nature
of the offence you have committed, but the judge may order that a youth be
detained. It is not "must" order or "shall" order.
I thought you were suggesting earlier that
perhaps we had flipped the whole thing on its head so that there was a
different regime for adults and youth.
Senator Baker: No.
Ms. Kane: It is worded differently. It is
discretion for the judge to detain a youth, but only where all of these
things are met. As you will see if you read (b), there is a very
strict set of criteria for when you have to detain a person, when they
cannot possibly be managed in the community, pending their trial date.
Senator Baker: Yes.
Ms. Kane: I just wanted to make sure.
Senator Baker: I read that, but I point out
to you that the word "may" is here, but when you look at the adult
provisions under 515 it is "shall," "shall release."
Ms. Kane: "Shall release unless," and this
is "may detain," "only if," so it is semantics.
Senator Baker: "May" and "shall" are not
exactly the same.
Looking at the provisions for record
suspension, has any thought ever been given to applying the provision to
courts, provincial institutions and police forces?
I note that the bill states in proposed
subsection 6(2) of the Criminal Records Act:
A record of a conviction in respect of
which a record suspension has been ordered that is in the custody of
the Commissioner —
— that is the RCMP commissioner —
— or of any department or agency of the
Government of Canada shall be kept separate . . . .
The registration of the Criminal Records Act
does not stretch so far as to extend to provincial court records and records
of provincial government departments.
Daryl Churney, Director, Corrections Policy,
Public Safety and Emergency Preparedness: You are correct, senator. The
Criminal Records Act only extends to federal departments and agencies.
Senator Baker: I imagine you tell the
person applying for the pardon in writing that this only applies to their
record in the hands of the RCMP or a federal institution.
Mr. Churney: That is correct.
Senator Baker: When someone gets a pardon
or record suspension, they think their record has disappeared. It has not.
It could be in all sorts of provincial government offices, provincial police
forces. It could be anywhere. Has any thought, do you know, been given to
having an authority here to suppress all records that are everywhere?
Mr. Churney: I do not know that that
consideration has been given, but I would say that people who apply for
pardons, or in the future for record suspensions, are made aware that their
record is only sealed at the federal level and that it may always be
released upon disclosure by authority of the federal Minister of Public
Safety in certain circumstances. They are informed that it is sealed and
kept separate, but they are made aware that it does not entirely disappear.
Senator Baker: I am asking about this,
Mr. Chair, is because the policemen of our country are now subjected to new
rules concerning disclosure of any previous convictions that they have had
for which a discharge has been given, for example — which is now covered
under your pardon section — and any pardons given. It is really problematic
for our police forces that have to disclose everything, including subjects
that have been pardoned at the federal level, but all of the records that
exist in the provincial court.
Ms. Campbell: There is a jurisdictional
issue, Senator Baker, and as well a practical issue. If a case has been
reported in the media, it would be extraordinarily difficult to contain that
information at any subsequent point.
Court records are public documents, generally.
There are additional protections in the Canadian Human Rights Act, I think,
for people with pardoned criminal records. Part of it is jurisdiction of the
federal government and part of it is just practical. I think the parole
board and the Department of Public Safety try to make it clear to people
what a pardon or record suspension means and what it does not mean,
particularly so that they avoid unpleasant surprises at times.
Senator Baker: Thank you for your answers.
Senator Lang: Mr. Chair, I would like to
expand a little further on what Senator Baker brought to the floor. I think
there is a misunderstanding with those who have had a record and have gone
through the process of getting a pardon. When they go to cross the line into
the United States, they suddenly find that, no, they cannot come in because
it was a felony and they have not been informed of that.
From my understanding of the technical side —
and I am trying to remember my conversation with this one individual — they
have to apply every five years. I am not going to ask for a response, but I
think the government and those who are responsible should look at that to
see what they can do in this age of computers and information to make it
easier for people so they do not get this surprise we are talking about. It
is easy for us to talk about that surprise around this table because we are
not the ones who were surprised. However, when you are the one who has been
surprised, it can be very disruptive to your personal life and emotionally.
I had a situation where an individual could not
go into the United States and there was a very serious family matter on the
other side. I would just prevail upon the witnesses and whatever departments
are involved to take this seriously as an issue that affects many people.
I would like to move over to another area that
I think is important and should be expanded upon. The Minister of Public
Safety spoke about rehabilitation. Unfortunately this bill, in many ways,
does not get the necessary attention in this area because it seems that we
want to talk about drugs and a few other items but not about rehabilitation
in a public forum. Most of us around this table, if not all, want to see
individuals who have been incarcerated have the opportunity to come back
into civilian life, be productive citizens and hopefully have a happy
Comments were made earlier about the federal
penitentiary system and that you are looking at furthering rehabilitation
into training and what can be provided to these inmates over the period of
time they are incarcerated so they can come out with skills they can put
forward when they become private citizens. I would like Ms. Campbell to
expand further on exactly what we are doing and the plans that are in the
works in that respect.
The other area I would like you to talk about
to some degree, because time is short, is the drug treatment centres. Once
again, it is a form of rehabilitation. I understand six are in place right
now across the country. I do not know if any of the witnesses can speak to
this, but I would like to know if we are actually getting positive results
from these programs where we see individuals that have gone into them and
have not come back into the judicial system.
Secondly, those programs are only in major
centres across the country. I come from the Yukon. Is there work being done
in other jurisdictions, both in the northern parts of the provinces and the
Northwest Territories, Nunavut and Yukon, to work with the territorial and
provincial governments to see if we can get some locations a little closer?
Those individuals would then have the same opportunities as those in the
city of Vancouver or the city of Ottawa, for that matter.
Ms. Campbell: On rehabilitation, Minister
Toews, in particular, is very concerned about people coming out better than
they went in. That includes being able to earn a living. He has placed much
emphasis with officials on enhancing the training programs.
We have people doing time who have skills
training. They are going to go back out and into their field of work, and
they do not need much assistance other than in relation to personal issues,
perhaps. However, we have people with multiple needs, and they are the
biggest challenge. They may have absolutely no work skills or, indeed, work
experience at all. In addition, they may have addiction issues, mental
health problems and a chaotic home situation. The Correctional Service has a
huge job then. They are expected, by many people, to take this individual,
work on all of those areas, and send someone back out who is able to
function. That is a huge task. It is a task that they tackle every single
day, within the resources that they have.
We were looking, along with colleagues and
other government departments, at current labour market analyses. We do not
want to be training people to be plumbers if there are way too many plumbers
in the country already, so that level of detail goes into it. Where are the
jobs in Canada? What are the skills needed now and for the future? How do we
make sure that the person not only has the job skills but is not going to
start a fight the first day on the job or find that they cannot work five
days in a row because of some addiction issue? All of those issues have to
be addressed along with the skills training.
You see reference to it here in Bill C-10, in
the correctional plan. Mr. Churney and I are spending quite a bit of our
time looking at new programs, even things as simple as making sure that when
the person is released to the street they have photo ID in their pocket. It
is very hard for a person to do anything in terms of getting back into the
community if they do not have something as simple as photo ID. People do not
think about small things like that that are challenges for the system.
In terms of treatment programs, we have a lot
of difficulty attracting professionals to come and work in penitentiaries,
and there are a lot of reasons for that. The service has been very
aggressive about recruitment — trying to get professionals and trying to get
them to stay — but that is a big issue. We could have all the money in the
world, but we have got to have nurses, doctors, psychologists and what have
you who are interested in coming and working in a very challenging
environment. I put that out as a marker. It is not just a question of
getting the resources.
Mr. Saint-Denis: On the question of drug
courts, there have been evaluations of, I think, the Toronto and the
Vancouver drug courts, and there have been successes. Obviously, there are
addicts who have successfully completed the treatment programs there. In
terms of expanding the level or the number of drug courts, to my knowledge,
there is nothing in the works at the moment, but you should know that the
drug court program started out with one pilot project in Toronto. It was
expanded to Vancouver, and then there was a general call to the provinces
and municipalities to self-identify an interest in setting up some of these
courts. Only a small number of municipalities indicated an interest. We
pursued courts in those municipalities that did express an interest. Since
then, my understanding is that some municipalities have indicated an
interest, but we have not sought out an expansion of the existing number of
courts. That may come up later on, but, at the moment, it is not something
we are contemplating.
Senator Lang: If there is an application
put forward to your department, would you have to consider all the merits of
that application and a further expansion on the number of drug treatment
centres in view of the legislation?
Mr. Saint-Denis: A municipality could
submit an application, but my understanding right now is that we are not
really considering expanding the number of existing courts. That may change
with time, but right now my understanding is that that is not the situation.
The Chair: Mr. Saint-Denis, could you
briefly explain the significance of drug treatment courts and approved
provincial facilities that relate to drug rehabilitation? Why are they
significant, and how do they relate to, in particular, the mandatory minimum
sentences that can occur under the drug provisions of Bill C-10? Why is that
Mr. Saint-Denis: From the perspective of
this legislation, it is important because it would allow a judge to impose a
penalty other than a minimum penalty if an offender — someone who is
recognized as committing the offence, who has pleaded guilty — successfully
completes the treatment program. From the perspective of this legislation,
that is very key.
In terms of the distinction between the drug
courts and the more general treatment programs, there are very few drug
treatment courts. There are only six of them. The treatment programs cover
the waterfront. They are not just for drugs. They can be for mental health
and other types of issues that the individual may have, and those programs
are much more available. They are pretty well scattered across the country
in many municipalities, so there is a greater possibility for the convicted
offender to be sent to one of these types of treatment programs. In the case
of drug treatment courts, the opportunity is much more limited.
The Chair: As you have said, if the
offender chose to receive that rehabilitative service, they could avoid the
mandatory minimum penalty that otherwise would apply.
Mr. Saint-Denis: Providing he successfully
completes the treatment, that is correct.
The Chair: That is very good.
Colleagues, that concludes our questions. To
each of you who have been very patient with us and very helpful to us today,
I truly want to thank you. There were so many issues and so many questions,
but you have done very well in providing us with responses. I thank you
sincerely for that.
Colleagues, we will reconvene tomorrow morning
at 10:30, in this room.
(The committee adjourned.)