Hon. Elizabeth Hubley: Honourable senators, every year the Learning
Partnership, a national not-for-profit organization dedicated to public
education in Canada, recognizes the extraordinary contributions of dynamic
education leaders in Canada's public education system. This year, 33 school
principals from across the country have been chosen as Canada's Outstanding
Principals for 2008.
Each year, the winners of Canada's Outstanding Principals are inducted into
the National Academy of Canada's Outstanding Principals. Throughout the year,
these outstanding principals continue to act as champions of public education,
participate in ongoing discussions about leadership issues through an online
forum and continue to mentor colleagues in their home schools.
I would like to congratulate all honourees this year and, in particular,
George Aiken, Principal of Kensington Intermediate-Senior High School in
Kensington, P.E.I. Mr. Aiken is a highly respected educational leader and
innovator and has been a teacher and administrator at Kensington
Intermediate-Senior High School for more than 30 years. He is well known for his
commitment to excellence in education and has been an inspiring role model for
colleagues and students alike.
It is through the work of dedicated and innovative educators such as Mr.
Aiken and his fellow award recipients that we will continue to build a strong
public education system in this country. Congratulations to Canada's Outstanding
Principals and thank you for all that you do.
Hon. Janis G. Johnson: Honourable senators, over the last few years,
Canadians in many parts of the country have witnessed an increase in the growth
of blue-green algae, restricting their ability to enjoy summer vacations.
Part of the blue-green algae problem is attributable to phosphates used in
certain detergents and cleaning products to soften water, reduce spotting and
rusting, hold dirt and increase performance. However, too many phosphates in our
water can lead to an overproduction of blue-green algae. Though blue-green algae
occur naturally, in large quantities, they emit a harmful level of toxins. This
can lead to poor water quality and force the closure of beaches in warmer
On February 15, 2008, in a joint announcement between Minister of the
Environment, John Baird; and Minister of Public Works and Government Services,
Michael Fortier; the government stated its intent to take further action to
reduce the growth of blue-green algae in our rivers, lakes and streams.
The government is proposing to amend regulations in order to reduce the
amount of phosphates added to laundry detergents and, for the first time in
Canadian history, limit the amount found in dishwasher detergents and
By 2010, the government will set a limit of 0.5 per cent by weight for
laundry and dishwasher detergents and, where analysis indicates, in
Acknowledging the work of provinces like Quebec and Manitoba on this issue,
Minister Baird stated in the February 15 announcement:
It's time to act. Our Government is taking action and will be limiting
phosphates in laundry and dishwasher detergents. Along with our plans to ban
the dumping of raw sewage and improve sewage treatment across Canada,
today's action should have a positive effect on the environment.
In addition, our esteemed colleague, Minister Fortier, went on to point out
Canadians have spoken and this Government has listened. Today, we are
taking real action to protect our rivers, lakes and streams from blue-green
algae. . . . I know this has been an important issue in the province of
Quebec and today's action is another step towards improving our waterways
for the enjoyment of all.
Honourable senators, this government is committed to providing clean and safe
water for Canadians. That is why, since taking office, it has supported the
provinces, territories and municipalities to improve water and waste water
infrastructure. It has been working on more stringent regulations with respect
to waste water effluents.
As the announcement of February 15 demonstrates, this government is committed
to doing much more for Canadians.
Hon. Mobina S. B. Jaffer: Honourable senators, I rise today in
celebration of Black History Month and to pay tribute to a Canadian political
pioneer, Rosemary Brown. She was the first Black woman in Canada elected to a
provincial legislature. She served British Columbians in this capacity from 1976
to 1986. In 1975, she was the first woman to run for federal leadership in
Canada. Ed Broadbent defeated her on the final ballot for the NDP leadership
Rosemary immigrated to Canada from Jamaica in 1951. She graduated from McGill
in 1955 and went on to receive a master's degree in social work from the
University of British Columbia in 1965. She was a mother of three children who
proved to Canadian women they could do it all as she skilfully found a way to
balance the demands of motherhood and Canadian politics.
As a member of the NDP provincial government in the 1970s, she made a
committee to eliminate sexism in textbooks and educational curricula. She was
also instrumental in establishing the Berger Commission on Family and introduced
legislation that prohibited discrimination on the basis of sex or marital
status. She was a founding member of the Vancouver Status of Women council and
founding member and trainer of volunteers from the Vancouver Crisis Centre. Her
importance to our country was acknowledged in 1996 when she was made an Officer
of the Order of Canada.
Honourable senators, Black History Month is very important in our country and
vitally important for our youth. Our young people need to learn and be reminded
of the remarkable achievements of Canadian trailblazers like Rosemary Brown.
I pay tribute to Rosemary. Many women, including myself, were inspired by
her. I am but one of the thousands of women and women of colour who was moved by
her achievements and became involved in politics through Rosemary's work as an
activist, educator and role-model.
Rosemary was strong and intelligent. She promoted justice and equality for
all women in British Columbia and across Canada. She stood up for many voices in
our society that never make it to the legislature or Parliament. Our country is
better today because of all her work.
Honourable senators, I am proud of the way Canadians have embraced Black
History Month. It speaks to the value we place on multiculturalism, a policy
that makes me exceptionally proud to be a Canadian. Canada has made great
progress in recognizing the contribution of Black Canadians but there is still
much work to be done.
On the continued necessity of Black History Month, Canadian author Rosemary
Sadlier has said:
When the contributions of people of African descent are acknowledged,
when the achievements of Black people are known, when Black people are
routinely included or affirmed through curriculum, our books and the media,
and treated with equality, then there will no longer be a need for Black
As much as I enjoy this month of annual reflection, honourable senators, I
look forward to a day when we achieve this goal.
The Hon. the Speaker: Honourable senators, I wish to interrupt
Senators' Statements for a moment to draw to your attention the presence in the
gallery of the finalists for this year's Shaughnessy Cohen Award for Political
Writing: Clive Doucet, Richard Gwyn, Andrea Mandel-Campbell, David E. Smith,
Janice Gross Stein and Eugene Lang.
On behalf of all honourable senators, I welcome you to the Senate of Canada.
Hon. Donald H. Oliver: Honourable senators, we all need to save money
for many different things over our lifetimes. Lower taxes can help. Our
government recognizes this, which is why the Minister of Finance announced in
his budget a new tax-free savings account, or TFSA. This is the single most
important personal savings vehicle since the introduction of the Registered
Retirement Savings Plan.
Canadians will be able to set aside money and watch those savings grow
tax-free throughout their lifetimes. Canadians will be able to use their TFSA
savings to purchase a new car, renovate a house, start a small business or take
a family vacation.
An RRSP is intended for retirement; the tax-free savings account will be like
an RRSP for everything else in life. However, unlike RRSPs, there will be no tax
consequences if you take money out to meet a short-term need.
Canadians from all income levels and all walks of life will benefit. Low- and
modest-income Canadians will especially benefit, as no amount earned or
withdrawn from the tax-free savings account will be taken into account in
determining eligibility for federal income-tested benefits such as the Canada
Child Tax Benefit, the GST tax credit, the age credit and the Guaranteed Income
Seniors will have a tax-free savings vehicle to meet ongoing savings needs,
something they have only limited access to once they reach age 71 and are
required to begin drawing down their registered retirement savings. Indeed,
seniors are expected to receive one half of the total benefits provided by the
Honourable senators, tax-free savings accounts are an innovative idea whose
time has come, and I congratulate the Minister of Finance for including those in
Hon. Marilyn Trenholme Counsell: Honourable senators, as you are all
aware, I have taken the opportunity to mention a past Speaker of this great
chamber, the Honourable Muriel McQueen Fergusson, on several occasions.
Her fight for social justice was lifelong and constant, yielding a foundation
and research centre in her name. The Muriel McQueen Fergusson Foundation and the
Muriel McQueen Fergusson Centre for Family Violence at the University of New
Brunswick continue her work in the struggle against family violence.
In addition to creating the research centre, the foundation, in 1985, created
a national award to honour the late senator. The award recognizes outstanding
contributions toward eliminating family violence. Canadian individuals,
organizations or corporations whose achievements have advanced the elimination
of family violence are eligible for the nomination.
Over the past 15 years, this prestigious award has recognized recipients from
across Canada, including June Callwood, Dr. Peter Jaffe, Hon. Margaret Norrie
McCain, Sister Cecile Renault, the Canadian Red Cross, Senator Sharon Carstairs,
Margaret Newall and Madeleine Delaney-LeBlanc, the last recipient.
I wish today to invite my colleagues here in the Senate to help share this
call for nominations to recognize the efforts of outstanding individuals, groups
or organizations from across Canada. All nominations for the award must be
received by March 21, 2008. Additional information can be obtained either from
myself or from the website of the Muriel McQueen Fergusson Foundation.
Thank you, honourable senators, for this opportunity to engage Canadians in
furthering the work of our beloved Senator Fergusson. Her spirit lives on in all
Hon. Maria Chaput: Honourable senators, this weekend, the Quebec
Community Groups Network is holding a conference in Montreal entitled
"Community Revitalization: Trends and Opportunities for the English-speaking
Communities of Quebec."
The purpose of this conference is to identify the many challenges facing the
English-speaking communities of Quebec.
Only through open and frank discussion can we determine the trends,
perspectives and needs of a minority community. The goals of this conference are
very similar to the goals set by the organizations and individuals who attended
the Summit of Francophone and Acadian Communities in June 2007. Demographic,
linguistic, social, institutional and legal issues will be explored in order to
assess the vitality of the community, and consequently, to determine priorities
As a Franco-Manitoban, I understand the many challenges facing official
language communities, but I look forward to getting a better understanding of
the challenges facing English- speaking individuals in Quebec. Although, on
paper, their situation is similar to that of francophones outside Quebec, it is
quite different for historic, demographic and social reasons.
At this conference, I plan on examining the strategies being used and
analyzing the parallels between anglophones and francophones living in official
language minority communities.
The discussions and debates will surely be interesting and will give us
something to think about, with guest speakers including Graham Fraser, the
Commissioner of Official Languages; Rodrigue Landry, the Director of the
Canadian Institute for Research on Linguistic Minorities; and Jean-Pierre
Corbeil, from Statistics Canada, who helped create the post-census survey
entitled Minorities Speak Up.
I will take careful notes and I plan on sharing my experience and my
impressions with the members of the Senate Committee on Official Languages.
The Hon. the Speaker: Honourable senators, pursuant to Chapter 3:05,
paragraph 5(1) of the Senate Administrative Rules, I have the honour to
table the statement of receipts and disbursements for the fiscal year ended
March 31, 2007.
Hon. Joseph A. Day, Chair of the Standing Senate Committee on National
Finance, presented the following report:
Wednesday, February 27, 2008
The Standing Senate Committee on National Finance has the honour to
Your committee, to which was referred Bill S-201, An Act to amend the
Financial Administration Act and the Bank of Canada Act (quarterly financial
reports), has, in obedience to the order of reference of Wednesday, November
28, 2007, examined the said Bill and now reports the same with the following
1. Preamble, page 1: Replace lines 9 to 11 with the following:
2. Clause 1, page 2:
(a) Replace lines 7 and 8 with the following:
"be prepared a quarterly financial report for" ; and
(b) Delete lines 14 to 16;
(c) Reletter paragraphs 65.1(2)(b) to (e) as
paragraphs 65.1(2)(a) to (d); and
(d) Replace lines 32 to 37 with the following:
"(3) The appropriate Minister shall cause the report referred to
in subsection (1)
(a) to be made available to the public within 60 days
after the end of each three-month period referred to in that
(b) to be laid before each House of Parliament at the
first reasonable opportunity.".
3. Clause 2, page 3:
(a) Replace lines 3 and 4 with the following:
"prepared, in respect of itself and its";
(b) Delete lines 12 to 14;
(c) Reletter paragraphs 131.1(2)(b) to (f) as
paragraphs 131.1(2)(a) to (e); and
(d) Replace lines 32 to 37 with the following:
"(3) The appropriate Minister shall cause the report referred to
in subsection (1)
(a) to be made available to the public within 60 days
after the end of each three-month period referred to in that
(b) to be laid before each House of Parliament at the
first reasonable opportunity.".
4. Clause 3, page 4:
(a) Replace lines 2 and 3 with the following:
"Bank shall prepare a quarterly financial";
(b) Delete lines 11 to 13;
(c) Reletter paragraphs 29.1(2)(b) to (f) as
paragraphs 29.1(2)(a) to (e); and
(d) Replace lines 30 to 35 with the following:
"(3) The appropriate Minister shall cause the report referred to
in subsection (1)
(a) to be made available to the public within 60 days
after the end of each three-month period referred to in that
(b) to be laid before each House of Parliament at the
first reasonable opportunity.".
JOSEPH A. DAY
The Hon. the Speaker: Honourable senators, when shall this report be
taken into consideration?
On motion of Senator Day, report placed on the Orders of the Day for
consideration at the next sitting of the Senate.
Hon. Joan Fraser, Chair of the Standing Senate Committee on Legal and
Constitutional Affairs, presented the following report:
Wednesday, February 27, 2008
The Standing Senate Committee on Legal and Constitutional Affairs has the
honour to present its
Your committee, to which was referred Bill C-2, An Act to amend the
Criminal Code and to make consequential amendments to other Acts, has,
in obedience to the order of reference of Wednesday, December 12, 2007,
examined the said Bill and now reports the same without amendments.
Your committee has also made certain observations, which are appended to
to the Eighth Report of the Standing Senate
Legal and Constitutional Affairs
Providing police and Crown Attorneys with the tools needed to ensure that
Canadians are as safe from violent crime as possible is a worthy objective.
Your committee does, however, have some serious concerns with several of the
details of C-2.
Some witnesses noted that some provisions of Bill C-2 will be open to
challenges under the Charter of Rights and Freedoms. Others raised
questions about whether there were gaps or deficiencies in the current law
that needed to be addressed by Bill C-2.
One example of a question about an alleged deficiency was in the area of
the reverse onus on bail applications; existing provisions clearly permit
pre-trial detention where shown to be necessary to secure attendance in
court, to protect the safety of the public, or to maintain confidence in the
administration of justice having regard to all the circumstances of the
We have heard that the reality is that people charged with serious
offences involving firearms are most frequently detained at first instance
or upon review, so it is difficult to envision where the new provisions
would apply. While the Supreme Court in R. v. Pearson upheld
the constitutional validity of the reverse onus for offences involving
narcotics, the Court noted that this narrow class of offences shared certain
characteristics including the systematic, organized and commercially
lucrative nature of the offences in question. The added offences in Bill C-2
do not necessarily share these significant common characteristics.
Some witnesses had reservations about the raising of the age of sexual
consent from 14 to 16. Many young persons are now and will continue to be
sexually active. It is in their best interests to have access to proper
health care and sexual health services. Witnesses expressed concern that,
because of certain mandatory abuse reporting laws, doctors, nurses, sexual
health counselors and social workers may be required to report their
"illegal activities", thus breaking confidentiality with young people who
confide in them. Because of this, young people may be much less likely to
seek out sexual health services.
Some witnesses were concerned by the reverse onus provision for dangerous
offender designation. The Crown would be relieved of the burden of proving
the dangerous offender criteria for the third primary designated offence.
Instead, the Crown would only have to prove the record of convictions for
two prior primary designated offences with sentences of two years or more
each, plus the fact that the third offence was a primary designated offence
that would warrant a sentence of imprisonment of two years or more. This
could result in someone being declared a dangerous offender despite the
absence of evidence that they were dangerous or a risk to reoffend, and
could lead to a Charter challenge. Such a declaration could be made
following a guilty plea made by an offender who did not understand that a
conviction could lead to a dangerous offender designation. The committee was
told that aboriginal offenders in particular may not understand the full
implication of these pleas. This could also have a differential impact upon
accused persons who do not have access to counsel who are able to explain
the implications of guilty pleas.
Some witnesses suggested that the permitted video recording of physical
co-ordination tests set out in new subsection 254(2.1) of the Criminal
Code should be made mandatory. This would provide the best evidence of
the test results and reduce the amount of legal contestation.
A concern was raised that even if an accused person establishes beyond a
reasonable doubt that he did not consume alcohol and that the breath-testing
machine was defective, he will still be convicted if he cannot establish
that the false test result is due to the malfunctioning of the equipment, a
causal link which is impossible to establish without having access to the
equipment to submit it to scientific tests.
The committee is aware of the fact that Canada is entering into uncharted
territory in testing for impairment caused by drugs other than alcohol. The
evidence presented to the committee showed that there is no machine, akin to
a breathalyzer for alcohol, which can measure accurately the amount of a
drug that will cause impairment. Furthermore, there are hundreds of drugs,
both legal and illegal, consumed by Canadians that have a different impact
on an individual's ability to drive. It is hoped that efforts to detect and
punish drug-impaired driving will reduce it, as was the case with alcohol.
The fact remains, however, that for the vast majority of drugs no scientific
data exist to determine the levels of consumption at which impairment
actually occurs. It will be several years before such levels are determined
for even the most common illegal drugs. In addition there are still
relatively few — only 214 — qualified Drug Recognition Experts in Canada.
While the committee recognizes and supports the deterrent value of the
criminal law, many witnesses spoke of the need for a comprehensive long-term
effort in such areas as impaired driving that incorporates both deterrent
legislation and public awareness and education campaigns. Such an effort,
combined with comprehensive treatment and drug and alcohol cessation
programs would constitute the most effective policy in attempting to reduce
the number of lives lost and injuries suffered in accidents involving
impaired drivers. Given the shared jurisdiction over areas such as health
and education, a co-ordinated effort by the federal and provincial
governments will be required.
A number of witnesses strongly urged the maintenance of at least some
level of judicial discretion when it comes to the imposition of sentences.
The exercise of judicial discretion is the best means of weighing the
relevant principles in determining sentence in order to impose a just
sanction. Most jurisdictions that do have mandatory minimums also allow for
permissible departure from these minimums in extraordinary circumstances if
the judge deems the departure appropriate. We are concerned by a number of
aspects of mandatory minimum sentencing, including:
.The effect of mandatory minimums on aboriginal and other minorities
in Canada, who are already greatly over-represented in prison;
.The fact that Criminal Code section 718.2(e) requires that
the particular situation of aboriginal offenders be considered at
sentencing, yet mandatory minimum sentences require that this principle
be ignored to a certain extent;
.The shifting of discretion in the judicial process from the
judiciary to the police and Crown Attorneys, who decide what charges are
laid and how they are pursued, and who are not subject to public
scrutiny or appeal to a higher court;
.The lack of proportionality in sentencing. As set out in section
718.1 of the Criminal Code, a sentence should be proportionate to
the gravity of the offence and the degree of responsibility of the
offender. Mandatory minimum penalties deny judges the chance to ensure
proportionality of sentencing in every case;
.The fact that mandatory minimum sentences focus on denunciation and
deterrence to the exclusion of other legitimate sentencing principles;
.The fact that money spent on incarcerating large numbers of people
might be better directed elsewhere.
We note with concern the lack of empirical studies demonstrating that
mandatory minimum penalties have proven to be effective in deterring crime
or, more generally, in reducing the incidence of crime. In particular, no
Canadian data were put before the committee to prove that the introduction
of mandatory minimum sentences for certain offences involving a firearm in
the mid-1990s has had a measurable impact on these offences.
Some witnesses noted that Bill C-2 sets out different mandatory minimum
penalties depending on the kind of firearm that was used in the commission
of an offence. While we can understand this distinction for offences such as
weapons trafficking, there is no discernible reason to impose a different
mandatory minimum penalty for offences such as attempted murder or sexual
assault with a weapon, depending on whether the accused used a handgun
(higher penalty) as opposed to a shotgun (lower penalty). It seems unlikely
that a violent crime victim would feel less victimized because a shotgun was
used against her instead of a handgun, or should accept that the perpetrator
receives a lesser sentence.
It is also crucial to understand that the stated goal of Bill C-2, to
reduce crime, cannot be attained without significant supporting policies,
measures and resources. One of the most important of these is the provision
of rehabilitation programs in prisons, including vocational training. Your
committee heard evidence that even today, there is a worrisome lack of such
programs in many institutions; while the prison population has risen in
recent years, the budget for such programs has actually fallen 26%. In
maximum security institutions, few or no programs are available. It is
agreed by all witnesses that the implementation of Bill C-2 will increase
the prison population again. Simply building new prison cells, while vital,
is not enough. If appropriate programs are not provided for inmates, the
risk increases that they will become recidivists after release.
Nowhere is the need for specialized programs more acute than in the case
of aboriginal offenders, who make up a grossly disproportionate number of
Canada's prison population and of those designated as dangerous offenders —
in each case, about 20%. This results from problems of great complexity, but
addressing these problems is both a moral and a common sense imperative.
Your committee also notes the comparative shortage of programs for other
minority groups, particularly visible minorities, in the correctional
system. As Canada's population becomes ever more diverse, it is increasingly
important to implement specialized programs to meet the particular needs of
these minority groups.
In this regard, in the 2007 National Justice Survey, about 70% of
respondents stated that the three most important goals of sentencing were to
provide reparations for harm done to victims or to the community, to promote
a sense of responsibility or accountability in offenders, and to assist in
We are aware that many of the changes brought about by Bill C-2 have cost
implications, not only for the federal government but for provincial
governments as well. The prison system is a shared responsibility of these
two levels of government, with any increase in the number of prisoners held
on remand borne solely by the provinces. There may be increases in costs for
the police and the courts as well, including more demands on the legal aid
system. There should be a wide-ranging consultation with the provinces and
other stakeholders in order to deal with the cost implications of
implementing the provisions of Bill C-2.
Your committee also notes with alarm the high level of blood-borne
diseases in Canada's prisons, including HIV/ AIDS and Hepatitis C. While
efforts have been made to eliminate injection drug use in prisons, less
emphasis has been placed on harm reduction measures to protect both inmates
and staff. With an increase in crowded prisons due to an increase in the
prison population, we can expect a magnification in the levels of
blood-borne infections. It remains to be seen how long this epidemic can be
contained in our prisons.
We are concerned that Bill C-2 does not address the different age of
consent to anal intercourse, as set out in section 159 of the Criminal
Code. That age is set at 18 years of age, unless the people involved are
husband and wife. This higher age of consent has been declared to be
unconstitutional by the Courts of Appeal of Ontario and Québec, amongst
others. If the age of consent is going to be raised to 16, then the same age
should apply to all forms of sexuality. Thus, section 159 of the Criminal
Code should be repealed.
TheHon. the Speaker: Honourable senators, when shall this bill
be read the third time?
Hon. Gerald J. Comeau (Deputy Leader of the Government): With leave of
the Senate and notwithstanding rule 58(1)(b), I move that the bill be read the
third time later this day.
The Hon. the Speaker: Is leave granted, honourable senators?
Some Hon. Senators: Agreed.
The Hon. the Speaker: Is it your pleasure, honourable senators, to
adopt the motion?
Some Hon. Senators: Agreed.
An Hon. Senator: On division.
On motion of Senator Comeau, with leave of the Senate and notwithstanding
rule 58(1)(b), bill placed on the Orders of the Day for third reading later this
day, on division.
Hon. Lorna Milne: Honourable senators, pursuant to rule 23(6), I have
the honour to table, in both official languages, the report of the Canadian
Delegation of the Canada-Europe Parliamentary Association, regarding its meeting
of the Committee on Economic Affairs and Development and the First Part of the
2008 Ordinary Session of the Parliamentary Assembly of the Council of Europe,
held in London, United Kingdom and Strasbourg, France, from January 17-25, 2008.
Hon. Lorna Milne: Honourable senators, pursuant to rule 23(6), I have
the honour to table, in both official languages, the report of the Canadian
parliamentary delegation to the Meeting of the Standing Committee of
Parliamentarians of the Arctic Region held in Reykjavik, Iceland, on June 1,
Hon. Lise Bacon: Honourable senators, I give notice that, at the next
sitting of the Senate, I will move:
That, notwithstanding the order of the Senate adopted on November 14,
2007, the date for the presentation of the final report by the Standing
Senate Committee on Transport and Communications on its consideration of
containerized freight traffic handled by Canada's ports be extended from
March 31, 2008, to June 19, 2008.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Honourable
senators, I have the honour to present a petition from Ontario residents
requesting the Senate to pass Bill C-2. The covering note reads:
We have 178 signatures requesting that the Senate pass the bill to raise
the age of consent from age 14 to age 16.
Hon. Céline Hervieux-Payette (Leader of the Opposition): Honourable
senators, my question is for the Minister of Public Works and Government
Services, to whom I extend greetings.
On Monday, he announced that two major Montreal festivals would each receive
$1 million in funding, through Arts Presentation Canada. This funding had been
announced in the 2007 budget, but was not available until the eve of the 2008
budget. When this program was first introduced, it was to provide $60 million in
funding over two years.
Is this program ongoing, or will the organizations have to fight to obtain
funding every year?
I would also like to remind honourable senators that the two festivals in
question were always supported by the Liberal government.
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): I thank the honourable senator for her question. I shall take as
notice the question that the honourable senator asks with regard to this matter,
in terms of ascertaining the scope of the program.
Hon. Céline Hervieux-Payette (Leader of the Opposition): The minister
responsible for the press release is here and I have the press release in hand,
so it should be possible for us to get all the details. I believe the Leader of
the Government could communicate with the minister sitting beside her and ask
him for the answer.
I would also like the Leader of the Government to tell us where in the budget
are the huge sums of money that were to be spent on protecting and, more
importantly, promoting culture. I am thinking specifically of the province of
Quebec, where a number of artists enjoy international fame and where certain
programs to help groups travelling abroad have been cut.
Can we have the assurance that this issue will be raised in cabinet once
again? I do not believe that the cultural communities are very happy with what
yesterday's budget had to offer for culture.
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, Minister Verner, the Minister of Heritage,
has made many announcements with regard to culture. In fact, a large section in
the budget addresses the various expenditures that have been made on matters of
the arts and culture. Nevertheless, I shall obtain a definitive breakdown of all
the announcements. Hardly a day goes by where there is not an announcement
somewhere in the country supporting culture.
Perhaps the honourable senator is referring to last September, when Minister
Verner announced that the $30 million in new funding in Budget 2007, to support
local arts and heritage festivals, would be ongoing. This new national program
has set funding criteria, clear objectives and is driven by community needs, so
it is community-based and driven. We recently announced $1 million each for this
year's Montreal International Jazz Festival and the Just For Laughs Festival.
Senator Hervieux-Payette: Honourable senators, if there is so much
money in the budget for culture, then explain to me why, in my recent meeting
with authorities of the International Music Competition, I learned that they are
not receiving any government assistance, which they requested a number of times
from the Minister of Public Works and Government Services and the minister
responsible for Canadian Heritage, Ms. Verner. They have not received any
response thus far.
We know that Quebec has a very vibrant musical culture; Quebec artists are
known throughout the world. The nature of this international competition is
reason enough for the government to fund it, but not only is this government not
granting any money to this organization, it is not even answering its calls.
Senator LeBreton: Honourable senators, Quebec is well recognized as a
unique and talented resource for arts and culture, of which the whole country is
proud. Cirque du Soleil and how it has been engaged with the Canadian endeavour
in Shanghai is an example of this resource.
In the area of arts and culture, Budget 2008 provides $32.4 million over the
next five years for capital infrastructure investments and for long-term
sustainability of Canada's national museums. The budget also provides $24
million over the next two years and $24 million ongoing thereafter to enhance
the government's programs of excellence for the summer Olympics and Paralympic
athletes. The world will be watching Canada, as we know, leading up to the 2010
winter games, and the budget provides another $24.5 million for outreach to
communities across Canada for torch relays.
The announcements in Budget 2008 build on recent investments in the area of
arts and culture, and I will run through them: $60 million for local arts and
heritage festivals; $30 million per year for the Canada Council for the Arts;
$10 million for small and mid-sized museums; $30 million for official language
minority communities; $52 million for the 2008 Francophonie Summit in Quebec
City; $100 million per year for the Canadian Television Fund; $100 million for
the new Canadian Museum for Human Rights to be established in Winnipeg; and $5
million per year for the summer museum internship program and accelerated
federal contributions for Own the Podium; to ensure that the winter Olympic and
Paralympic athletes have the security of uninterrupted training.
Senator Comeau: Keep it coming!
Some Hon. Senators: Hear, hear!
Senator Cowan: Surely not.
Senator Hervieux-Payette: Honourable senators, a letter was sent to
the government but it remains unanswered. I am talking about the Montreal
International Music Competition. There are two competitions in Canada: one in
Montreal and one in Calgary. Perhaps the one in Calgary will be given more
attention. The Canada Council does not cover this type of event. This agency's
budget is $1 million and it expects the government to contribute just $250,000
from all the millions of dollars the leader just talked about. I am simply
asking the minister to reply to the request of the Montreal International Music
Senator LeBreton: I have not seen the letter to which the honourable
senator refers. I would be happy to track it down, seek the minister's advice
and help in ensuring that the letter has been answered.
Hon. Grant Mitchell: Honourable senators, in its efforts to kill the
Canadian Wheat Board, this government has, among other things, bullied its
elected board members and employees, rigged voter lists and a plebiscite
question and has tried to change the jurisdiction of the Canadian Wheat Board
through regulation, even though it is very clear in the law that that can only
be done by an act of Parliament. It is not funny how this government finds
itself so quickly ignoring laws despite the fact that it is the tough-
on-crime-law-and-order government that it brags about seemingly day after day.
Now that two of Canada's top courts have made it very clear that this
government cannot change the jurisdiction of the Canadian Wheat Board without an
act of Parliament, will the Leader of the Government in the Senate admit and
acknowledge before all of us that the government cannot get its own way by
abusing laws and by undermining the democratic institutions in this country?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, Senator Carstairs gave me the same lecture
a couple of weeks ago. Senator Mitchell knows we campaigned on marketing choice
and kept our promise to consult with the Western barley farmers on how they want
to market their product. A majority of producers — 62 per cent, in fact — backed
greater marketing choice in last spring's plebiscite. Farmers want to see their
barley sold as they see fit, and I can well understand that as they watch the
price of barley and wheat escalate on the world market.
As a government, we are disappointed with the decision of the Federal Court
of Appeal on February 26 that maintains the Canadian Wheat Board's monopoly.
Clearly, we made a commitment to Canadian wheat and barley growers in the last
campaign. We believe we should try to honour that commitment and we have done
everything we can to do so. The government is committed to pursuing all avenues
to deliver true marketing freedom to Western Canadian barley producers and, of
course, all grain producers. Minister Ritz will therefore move ahead as quickly
as possible with the legislation to give barley farmers the freedom to market
their own barley directly to the buyers of their choice.
Senator Mitchell: Honourable senators, the leader makes much of this
government honouring its commitment to the barley growers of Canada. Would it be
that it felt the same way about honouring the commitment to the people of the
Maritimes, to the people who have invested in income trusts and to the people
who believed what they said in the court? Would it not be nice if the government
actually honoured those commitments as well?
The real issue here, it seems to me, is that the leader is trying to avoid
the fact that her government has undertaken a number of very surreptitious,
deceitful, dishonest measures to undercut and, ultimately, to kill the Canadian
What level of ideological obsession makes the Leader of the Government in the
Senate believe that the government can undercut democratic processes, ignore
laws, ignore the rule of Parliament, and ultimately ignore the rights of farmers
in this country?
Senator LeBreton: Honourable senators, we were not ignoring the rights
of farmers in this country. We campaigned in the last election on providing
farmers in Western Canada a marketing choice for wheat and barley. We believe
that there should not be a monopoly and that farmers are very capable of finding
their own markets for their products.
The honourable senator is obviously of a different view. It is interesting
that, as the price of wheat and barley rise, the Canadian Wheat Board has
actually, I believe, sold its wheat at prices much lower than it would have been
able to do so if it had sold it directly.
In any event, we do have — it is true — a philosophical difference. We
believe in marketing choice; senators opposite believe in a monopoly. In view of
the decision of the court, the minister will be forthcoming with legislation
and, if you will recall a few weeks ago, Senator Carstairs was urging that the
government do just that.
Hon. Roméo Antonius Dallaire: Honourable senators, to use the leader's
own words, she knows better than most my support for the troops in the field. It
is interesting how often people raise the fact that the troops are so young. The
casualties are so youthful, some as young as 19 years of age, and it is a
terrible price to pay. We have been asked, do they really know what they are
doing by joining the army at 18 years of age and making such a commitment? Do
they fully realize the impact that that could have on their life? We are not
keen on having recruiters go to high schools. Even though it is an honourable
profession, we are uneasy with it.
Yet, the government is allowing a child soldier, who was shanghaied into an
irregular force at 15 years of age, to remain at Guantanamo Bay for nearly six
years and go through a criminal process there. He is a Canadian. The government
has signed on to all the optional protocols of the United Nations with regard to
child soldiers, yet there has been a deliberate decision, possibly by inaction,
to abandon that Canadian child soldier to a process that this country has stated
is illegal, against humanitarian law, against the law of armed conflict and
against human rights.
Why is the government still allowing that to happen?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, at the beginning of the honourable
senator's question, he spoke about the Canadian government's recruitment of
young people into the forces. Recruitment in the Canadian Forces is, of course,
voluntary. We are very happy with our recruitment. As the honourable senator
knows, recruitment numbers in the Canadian Forces have increased markedly across
the country, most particularly in the province of Quebec.
I dare say that anyone who signs up for the Canadian Forces fully understands
the scope of the challenge they face.
Mr. Khadr was put into the situation he faces by another government, and I
did not hear people at that time urging that he be sent back to Canada. Mr.
Khadr faces serious charges. The Government of Canada has sought and received
assurances that he is being treated humanely. Departmental officials have
visited Mr. Khadr several times and will do so again in the future.
As I stated in an answer to a question in December, any questions regarding
whether Canada plans to ask for the release of Omar Khadr from the facility at
Guantanamo are premature and speculative, as the legal process is still under
way. I believe Senator Dallaire asked me a question on this subject previously,
and I believe I tabled a detailed answer to that question by way of Delayed
Answers, although I am not absolutely sure of that.
Senator Dallaire: I have not asked a question on this subject
previously, and I have been extensively involved with that case and with the
judicial process. The judicial process is now at the stage of going to court.
Mr. Khadr was arrested and held prisoner in an illegal U.S. forces base,
against all the protocols that we have accepted with regard to irregular troops
below the age of 18. We did initiate processes with regard to that, but the
actual judicial process for what they were going to do with him had not been
established. The process has now been established for a year. I have been called
forward on that, and the matter is well in train. Everyone else has pulled their
nationals out of Guantanamo Bay because we know they are being tortured there.
We allowed this kid to stay in the military structure of an ally that
tortures prisoners. We know that, and they have said it themselves before their
Senate committees. Yet, the government is doing nothing.
Do not tell me about the Canadian Forces being voluntary. We know that.
Volunteers are not accepted until they are 17, and we do not send them into
operations until they are at least 18 and trained.
What are we doing letting a 15-year-old stay in jail until he is 21, and
then, once the process is in motion, acting as if he is criminally responsible?
We agreed in front of the UN that child soldiers ought not to be held criminally
responsible. We agreed that child soldiers should be demobilized, rehabilitated
Why is the government not getting that ex-kid out of Guantanamo Bay and into
our judicial system as every other country has done?
Senator LeBreton: The fact is that Omar Khadr faces very serious
charges. The Government of Canada has sought and received assurances that he is
being treated humanely. There have been several departmental visits with Mr.
Khadr and the department will continue to monitor the situation. Other than
that, there is not much more I can add.
When I began the answer, I was talking about our own service because the
honourable senator's long preamble talked about recruiting. Therefore,
obviously, I felt that I should respond to that part of the question as well.
Senator Dallaire: The mere fact we agree that Omar Khadr is being
criminally charged is against everything this government has previously signed
on to. In the Optional Protocol to the Convention on the Rights of the Child on
the Involvement of Children in Armed Conflict, we agreed that boys or girls who
are locked into combat at the age of 15, 14 or 13 are not held criminally
responsible. They are, in fact, moved to a process of demobilization or
rehabilitation and reintegration. We do not even have a judicial court for our
own kids below the age of 18. The honourable senator cannot tell me that this
15-year-old is being held accountable for criminal charges when we totally
disagree with the concept of holding a child soldier criminally responsible for
charges in an operational theatre.
The honourable senator is still not telling me why Omar Khadr is not being
brought home to sort out the problem here. He is a Canadian, by the by. Why does
the honourable senator refuse to acknowledge that these criminal charges are
illegal in the international humanitarian law of armed conflict and why are we
not holding the Americans accountable for that?
Senator LeBreton: The honourable senator refers to Omar Khadr as "a
child soldier." I doubt that most people would consider the activities that he
was involved in as normal. The fact is Mr. Khadr faces serious charges.
There have been many examples of this family seen on our public television
taking positions that most Canadians find difficult to understand. However, in
any event, Omar Khadr is in Guantanamo, and the government is monitoring the
situation. We have sought and received assurances that he is being properly
treated. Any questions with regard to his release or return to Canada are, in
our view, premature.
Hon. Terry Stratton: Honourable senators, I would like to address my
question to the Chair of the Standing Senate Committee on National Security and
Defence. In the Ottawa Citizen on February 6, and in a correction posted
by that same newspaper on February 8, that newspaper wrote about a senior
researcher being employed by the committee to research funds being expended in
Afghanistan. Will the committee table a report in this chamber with respect to
that research and its results?
I know the honourable senator was quoted in the newspaper article. However,
does he not feel that such research should go through the committee and, hence,
a report to this chamber?
Hon. Colin Kenny: Honourable senators, the last time the honourable
senator asked this question it was in regard to whether the researcher had been
in Afghanistan for six months and we clarified that he had not.
As far as having something to report, sadly, the researcher had nothing to
report. The whole point of the discussion with the Ottawa Citizen was
that we had a very senior researcher who, over the course of six months, was
unable to get any information from CIDA regarding development in the province of
We subsequently called the minister before us and she was unable to provide
any information. We then offered her the opportunity to answer the question in
writing. Her response was so unintelligible that we felt obliged to put it in
the report that was tabled last spring. We could not believe that a minister of
the Crown could write a letter that was so inarticulate and that provided so
little information on such a serious subject.
Senator Stratton: If I may, the honourable senator has thrown a lot of
accusations today. Can the honourable senator substantiate those accusations for
us? Is there a report of some kind that we can refer to? Subsequent to that
report being tabled, there were newspaper articles about a senior researcher
spending six months on this matter.
Does Senator Kenny not think that it would be appropriate to supply the name
of the researcher?
On the other hand, if the honourable senator is saying that the researcher
could not find anything, who was the researcher? Was the researcher indeed
employed for six months? How much was he paid? Does the honourable senator not
think this chamber has the right to know?
If the honourable senator decides to throw around accusations, he should
defend on his side what that researcher did in the first place.
Senator Kenny: I would encourage Senator Stratton to read Hansard,
because part of his question today was answered when it was asked the last time.
The name of the researcher is Brigadier- General James Cox, Retired. He is an
employee of the Library of Parliament. He kept the committee apprised on an
ongoing basis — in fact, virtually on a weekly basis — of the lack of
cooperation, assistance and information on the part of CIDA, the Canadian
International Development Agency.
Having served for such a long period of time in the Canadian Forces, the
researcher was astonished that so little could be done by a department in an
area where Canada had troops in the field. Mr. Cox regularly advised the
committee of that. The committee provided a fulsome report on this subject,
which evidently the honourable senator has not read. I would encourage him to
read reports that are tabled in the chamber.
Senator Stratton: I would also ask the honourable senator to look at
the situation from over there. To publish information with respect to the work
being done there by various government organizations and NGOs is not advisable.
That work should remain confidential. If specific details are published, then
the Taliban is being supplied with that information.
Senator Kenny: Honourable senators, I am embarrassed at the quality of
questions coming from the honourable senator on the side opposite. His
government has issued lists of development projects taking place in places other
than in Kandahar. The government regularly talks about the projects that are
going ahead in different parts of Afghanistan. The problem is that the lists are
very bare in the province of Kandahar, where our troops are and where we have
Hon. Marilyn Trenholme Counsell: Honourable senators, my question goes
back to the budget and to health issues. I refer to the statement by Dr. Brian
Day, the President of the Canadian Medical Association, in his news release
issued very shortly after the budget yesterday. "Health Gone Missing?" is the
title of the news release.
Honourable senators, I want to say that I am in no way lobbying for the
Canadian Medical Association or indeed for Canadian doctors or any other health
care group. However, I believe one of the reasons that I am here is to lobby for
health care and the health promotion of my fellow Canadian citizens across this
We know that there is a growing shortage of physicians and all other health
care workers, and this was not addressed. In the budget, there was some talk
about pollutants in foods, about health foods and health food products and more
regulations regarding these products. There was supposed to be a review of the
expenses that can be deducted in order to obtain a tax credit. There was mention
of reorganizing the delivery of health care for Aboriginals — that is a good
thing — and there was a noteworthy and significant reference to mental health.
We have to thank the Senate for that — Senator Kirby, Senator Keon and all
honourable senators who worked on that great report.
However, the purpose of these five projects is to study and offer ways in
which the relationship between homelessness and mental health can be improved.
There is not really much discussion in terms of helping the mental health crisis
and the sick people in this country.
The Hon. the Speaker: If the honourable senator would come to the
question, and the Honourable Leader of the Government would quickly respond, we
might be able to squeeze this question into the time remaining, according to my
Senator Trenholme Counsell: Approximately 5 million Canadians in this
country do not have a family doctor. In my own province, there are 75,000 people
without a physician. There is an enormous lack of all health care professionals.
That is the main reason for the wait list.
My question is for the Leader of the Government: Why did the Government of
Canada choose to ignore the need of Canadian families for family doctors, not to
mention specialists, and the dire need of our health care system for more nurses
and all other health care professionals?
Hon. Marjory LeBreton (Leader of the Government and Secretary of State
(Seniors)): Honourable senators, the short answer is that family doctors and
trained professionals cannot exist without the proper post-secondary structure
to get people into the universities and to train them in these areas. Snapping
our fingers today will not produce any doctors. The budget has set aside
significant amounts of money in the area of education, science and technology.
The last time I looked, health care is very much tied to the field of science
and technology. In two years, the government has invested incredible sums of
money in the health care field. In this particular budget, we have addressed the
problem where the problem exists; the education system is the place to start.
Hon. Pierre Claude Nolin: Honourable senators, as you know, I always
find it regrettable to have to raise a point of order but I must do so. The
Honourable Speaker has acted contrary to the rules by permitting the honourable
senator to continue asking her question and, definitely, by allowing the answer.
The question period is to last 30 minutes. No extension is possible. I simply
hope that we have not established a precedent that will result in question
periods lasting longer than 30 minutes.
Hon. Fernand Robichaud: Honourable senators, I believe that the
Honourable Speaker has always conducted himself admirably. We know that, when a
senator rises, we give him a certain amount of time to express himself and that
we also give the person to whom the question is directed time to give a brief
answer. If we must count the seconds it will be more difficult to make things
work well. I am certain that the Speaker of the Senate will act accordingly in
The Hon. the Speaker: I thank the Honourable Senator Nolin for raising
the point of order. What is written is written; he is absolutely right. The rule
book, which is the standing orders of this house, says exactly that. Maybe we
will ask our table officers to rise a minute or so before the 30 minutes expire.
Hon. Terry Stratton moved the third reading of Bill C-2, An Act to
amend the Criminal Code and to make consequential amendments to other Acts.
He said: Honourable senators, before I begin my speech at third reading of
Bill C-2, I wish to thank the witnesses who appeared before the Senate Legal
Committee, some 55 of them, over a period of four intensive days. When one hears
the words of the witnesses from the Elizabeth Fry Society, the John Howard
Society, the police and the RCMP, as well as witnesses who are victims of crime,
one truly hears heart-wrenching stories on both sides of the issue with respect
to victims and with respect to criminals being rehabilitated. One must tip one's
hat to those individuals who work in those fields because they give far more
than most people understand. The emotional sacrifices they make with respect to
their jobs is truly amazing. I could not do that. For all honourable senators,
and committee members in particular, I commend those individuals.
Honourable senators, I am pleased to speak at third reading of Bill C-2, the
proposed tackling violent crime act. The bill has had a long journey commencing
as five separate criminal law reform bills that were introduced in 2006 in the
previous session of Parliament. They were then introduced in one bill in this
session as Bill C-2. As a confidence measure and as the first bill of this
session, the government's message is clear: Safeguarding Canadians and Canadian
communities against violent crime is our top priority. Canadians across the
country have spoken in support of Bill C-2 and of the government's commitment to
tackle violent crime. Honourable senators, I am pleased to say this chamber
heard that message and we have worked tirelessly over the past few weeks to
realize Canadians' expectations.
Bill C-2 proposes much needed criminal law reforms with four objectives: To
get tough on serious crime; to strengthen our laws that deal with drug- and
alcohol-impaired driving; to protect vulnerable 14- and 15-year-olds against
adults who seek to sexually exploit them; and to better protect all Canadians
against dangerous and repeat violent offenders, many of whom are sexual
offenders. Some statistics show that 70 per cent to 90 per cent of repeat
violent offenders are sexual predators.
As I mentioned, the committee worked tirelessly to deliver Bill C-2 and the
record reflects this effort. Your Standing Senate Committee on Legal and
Constitutional Affairs held extensive hearings on the bill over the last three
weeks and received testimony from 55 witnesses, as I said before, who spoke to
all aspects of the bill. It is fair to say that while many of the witnesses
spoke in support of the bill's different components, not all witnesses did so.
Despite some differences of opinion about the best way to address violent crime
in Canada, all witnesses agreed with and shared in the objectives of Bill C-2.
All of them condemn violent crime and all of them support efforts to tackle such
Let us consider the key components of Bill C-2. First, the impact of gun
crimes cannot be overstated. From the often lethal impact on victims and
families, to the pervasive diminishment of our cherished Canadian way of life —
a safe and secure way of life for which Canada is renowned — gun crime affects
us all. Bill C-2 addresses serious gun crime by providing tougher minimum
mandatory prison sentences and by strengthening the bail regime.
With respect to increased minimum mandatory sentences, Bill C-2 targets
serious and repeat firearm offenders. Specifically, new escalating mandatory
minimum sentences of five years on a first offence and seven years on a second
or subsequent offence are proposed for each serious offence committed with a
restricted or prohibited firearm or in connection with organized crime, which
includes gangs. These offences are attempted murder, discharging a firearm with
intent, sexual assault with a weapon, aggravated sexual assault, kidnapping,
hostage taking, robbery and extortion. I am sure all honourable senators would
agree that these offences are among the most serious.
Increased mandatory minimum penalties of three years on a first offence and
five years on a second or subsequent offence are also proposed for offences that
do not involve the actual use of firearms. This would apply to firearm
trafficking or smuggling, or the illegal possession of a restricted or
prohibited firearm with ammunition. These new penalties reflect the sentencing
goals of deterrence, denunciation and separation of serious offenders from
Bill C-2 also proposes to change the bail regime so that persons charged with
serious firearms offences bear the burden of demonstrating why they are not a
bail risk. Otherwise, they will be kept in pre-trial custody. This reverse-onus
scheme would apply to those charged with certain serious offences committed with
a firearm, weapons trafficking, smuggling or other indictable offences committed
while prohibited from possessing weapons.
Second, Bill C-2 will greatly assist police in the investigation of impaired
driving — a crime that causes more deaths and injuries than any other crime. The
Criminal Code prohibits driving while impaired by alcohol or a drug. However, a
serious challenge has been the detection, investigation and successful
prosecution of drug-impaired drivers. Under Bill C-2, police will be able to
require drivers who are suspected of having a drug in the body to perform
sobriety tests at the side of the road. If the driver passes the sobriety test,
that person is quickly on their way. If the driver fails the test, the police
will then proceed to the second step and demand that the person undergo an
evaluation by an officer specifically trained in classifying the family of drugs
that is causing the observed signs and symptoms of drug impairment. The third
step is a demand for a bodily substance sample that is analyzed in a lab for the
presence of a drug identified by the evaluating officer as causing the observed
impairment. This step is the safeguard for the accused driver. If the identified
drug is not present, the prosecution will not proceed. It is important to recall
that these reforms will give police a new tool to investigate the existing
offence of drug-impaired driving. They do not criminalize the mere presence of a
drug in a driver; evidence of impairment to drive remains the focus of the
Bill C-2 will also simplify the investigation of alcohol-impaired driving by
giving the police more time in which to make a demand for a roadside breath
test. This will be especially helpful in collision situations where police
arrive on the scene and the driver is no longer behind the wheel. Importantly,
Bill C-2 will simplify trials where a person is charged with having blood
alcohol content, or BAC, over 80 milligrams per 100 millilitres of blood or over
80, as it is known. Where a person has blown over 80 on an approved instrument,
the defence to the charge will be restricted to scientifically valid defences.
Until now, the courts have ignored the results produced by the approved
instrument when the driver claims to have had very little to drink, typically
two beers — the so-called two-beer defence.
The defence experts state that such low consumption could not have produced a
result over 80. This has been so even where the prosecution has proven that the
instrument was correctly used and in proper working order both before and after
the breath sample was taken.
Bill C-2 also proposes other welcome reforms, including creating new offences
of being over 80, or refusing to provide a breath sample where the person's
operation of the vehicle has caused a collision involving bodily harm or death,
offences punishable in the same way as impaired driving causing bodily harm or
In this way, Bill C-2 removes the current incentive for a person involved in
a serious collision causing bodily harm or death to refuse to provide a breath
sample so that the certificate of blood alcohol content — BAC — cannot be
produced as evidence of impairment.
Finally, Bill C-2 increases the mandatory minimum fine for a first offence
from $600 to $1,000; the minimum jail time for a second offence will be
increased from 14 to 30 days; and for a third offence, the minimum jail time
will be increased from 90 to 120 days.
The age of protection is next. Bill C-2 also proposes to increase the age at
which young persons can consent to engage in sexual activity with another person
aged from 14 to 16 years.
Honourable senators, this was an issue that attracted considerable comment
before your committee, so I wish to be very clear about what these reforms do
and do not propose. They do propose to protect 14- and 15-year-olds against
adult sexual predators. They do not prevent 14- and 15-year-olds from engaging
in consensual sexual activity with peers. The reforms put the onus on the adult,
the person who is five or more years older than the 14- or 15-year-old, who is
seeking to engage in sexual activity with that young person.
Specifically, these reforms say to that adult: If you engage in any sexual
activity with the young person, you are committing a sexual assault against that
young person. The reforms do not focus on whether the young person purported to
consent to that exploitive activity. This is entirely consistent with the
Criminal Code's existing age of consent of 18 years with sexual activity
relating to prostitution, pornography or other relationships involving
authority, trust or dependency, where a young person's alleged consent is
These reforms do say to sexual predators, here in Canada or abroad, who want
to target 14- and 15-year-old Canadian youth via the Internet, because of our
existing age of consent that our youth are off limits.
Dangerous offenders: Finally, Bill C-2 proposes Criminal Code reforms to the
dangerous offender provisions as well as to the peace bonds that place severe
restrictions on high-risk offenders released into the community when no longer
The objective is to protect Canadians from repeat violent and sexual
offenders who, despite our very best efforts, are either unwilling or unable to
stop their destructive behaviour. Simply stated, they are all about public
The proposed dangerous offender amendments include a requirement for
prosecutors to declare their intention to bring a dangerous offender application
on a third qualifying designated offence. This requirement will ensure that
Crown prosecutors across the country consistently and specifically consider
whether to bring a dangerous offender application for all offenders who meet
A presumption that the offender meets the dangerous offender criteria on
conviction for a third qualifying primary designated offence: As with any
presumption, this is a rebuttal presumption. That is, clarification of how a
designated dangerous offender will be sentenced, either with an indeterminate
prison term or with a long-term offender's supervision order, consistent with
the decision of the Supreme Court of Canada in R. v. Johnson. This
amendment is necessary to clear up confusion following the Johnson
decision regarding who is a dangerous offender and how he or she is to be
Provisions for a second hearing where a dangerous offender who is initially
sentenced to a long-term offender supervision order, rather than an
indeterminate jail order breaches a condition of that order: This hearing
focuses only on whether that dangerous offender could be resentenced to an
Finally, the bill includes amendments to toughen the section 810.1 and 810.2
peace bonds, doubling their duration to 24 months and clarifying that the court
may impose a broad condition. These reforms will ensure that police and justice
officials are better able to manage high-risk individuals who are released into
the community after the expiration of their full sentence.
Honourable senators, Bill C-2 proposes an extensive set of criminal law
reforms, the objective of which is clearly to better protect Canadians in their
homes and communities. I believe public safety is a priority issue for all
honourable senators, and I urge you to support the bill.
Hon. Jerahmiel S. Grafstein: I have a question for the Honourable
Hon. Fernand Robichaud (The Hon. the Acting Speaker): Will the
honourable senator accept a question?
Senator Stratton: Yes.
Senator Grafstein: Before I start, I want to commend the committee for
its report. They laboured under difficult and impaired circumstances to prepare
this report. In the circumstances, it is very elucidating.
I should like to ask some questions, since the honourable senator is here on
behalf of the government to defend this measure.
I want to refer to the sections dealing with impaired driving not respecting
the use of alcohol, which opens up a wide new range.
As I understand it — and if I am incorrect Senator Stratton will correct me —
if someone fails to take these new tests under this section or refuses to take
the test, the individual is guilty of an impaired driving offence and subject to
Let me understand this measure, because this provision affects practically
every Canadian. If you take a look at the statistics that I am familiar with, at
least two to three out of seven Canadians are on medication of some nature on a
daily basis. Many medications, based on publicized requirements, have side
effects. Many of them have side effects that have not been fully measured based
on scientific evidence.
If an individual who is not a criminal drives a car and is not aware of the
consequences, because the side effects of the medication he or she is taking are
not fully tested — and Senator Keon will confirm this — and refuses to take the
test, or does some of these tests, that person could be found guilty of an
offence on those measures alone.
Let me give you an example: Suppose the individual cannot stand on one foot
for a period of time or walk 12 feet. I would like all senators to step outside
and do these tests; my bet is that half the senators in this chamber would fail
those two tests.
It seems to me that this measure is extraordinary on the basis of its
uncertainty. The Criminal Code requires the onus of clarity, so that someone who
is subject to an offence can clearly understand at the outset of the offence
that he or she is probably guilty. This does not give any comfort to an innocent
Canadian who uses drugs for proper purposes that are legal and can be protected
from the onslaught of this bill. Can the honourable senator make a comment about
Senator Stratton: Yes, honourable senators, I would be happy to do so.
There is a 12-step process when an individual is stopped. First, he or she has
to determine the reason for being stopped. Usually, the reason involves erratic
driving or a crash of some kind. The police have reason, first, to pull the
person over. The police do not pull a person over willy-nilly, without something
to pull the person over for.
Having said that, the police go through a series of questions before an
individual is required to hop on one foot, believe me. The police officer would
ask the person if he or she is taking drugs. If the person's answer is yes,
then, if the officer determines that the dangerous driving may have been caused
by the effect of drugs, the person is taken to the hospital for an examination.
A doctor's examination can determine if the drugs were the cause of the accident
or the erratic driving.
Remember that when a prescription is dispensed, it often includes a notice to
patients not to drive while taking the medication because it might cause
drowsiness. Doctors alert patients to this warning as well.
It is likely that someone taking prescribed medication can be impaired. We
must be careful. We have a responsibility, to drive safely and our ability to
drive is a responsibility, not a privilege. We must heed the warnings on our
Senator Grafstein: Is there any statistical evidence to demonstrate
that people taking legal drugs who may become drowsy or who may not have clear
sight present a threat on our roadways? If so, senator, is that threat so
overwhelming that it requires an amendment to the Criminal Code?
Remember, the law does not take into account small measures.
Senator Stratton: Is that a question?
Senator Grafstein: Yes, that is a question.
Senator Stratton: We are not after the person on prescription drugs.
That is not the issue, but if that person is found to be driving erratically, or
becomes involved in an accident, then that person has every reason to be
questioned by the police.
We are after the people who are taking illegal drugs such as marijuana and I
think there are about five categories of illegal drugs. The police want to
charge the people who are impaired and driving under the influence of illegal
Senator Grafstein: I will read from paragraph 4 on the second page
from the Standing Senate Committee on Legal and Constitutional Affairs. It says
that there are hundreds of drugs, both legal and illegal, consumed by Canadians,
that have a different impact on the individual's ability to drive.
Correct me if I am wrong, but the bill does not make the honourable senator's
distinction between legal and illegal drugs. It is the consequence of the use of
those drugs that this section is meant to capture.
Senator Stratton: As citizens of this country, we must realize that if
a person is taking a prescription drug that causes drowsiness or some other
effect, then that person has no business behind the wheel.
Senator Di Nino: Hear, hear!
Senator Stratton: If a person is involved in an accident or is pulled
over for erratic driving, the police have a right to question that person.
Remember, driving is a responsibility and not a privilege.
Hon. George Baker: Honourable senators, would the Honourable Senator
Stratton admit that, as Senator Di Nino has repeated many times as he has been
part of the R.I.D.E. Program and has filled us in on how that great program
works, whereby all drivers are stopped, there is no observation of driving at
all. That is the first thing that I would like Senator Stratton to verify,
namely, that these organized stops happen during Christmas time, New Year and at
various other times throughout the year. This occurs throughout our country, in
fact, six provinces include the right to stop an individual arbitrarily for
purposes of section 253 of the Criminal Code in their highway traffic acts. In
this case, the driving is not observed.
Second, would the honourable senator also verify that people are not
automatically taken to the hospital for observation? Would the senator verify
that, in fact, the minister himself and the previous Liberal administration
publicized the fact that in this case the legislation is designed to capture
those who are not just on illegal drugs but those who are on legal drugs,
including prescription drugs, that could impair a person's ability to drive?
Could the honourable senator verify that, please?
Finally, would the honourable senator recognize that this is in the
investigative stages? This whole procedure is new to Canada and new to a great
part of the world.
Senator Oliver: That is right.
Senator Baker: This procedure is new and we need time to make it work
Senator Stratton: The honourable senator is right; this will take
Senator LeBreton: It is the same with roadside tests for drunk
Senator Stratton: I will quote from the statistics, which I love to
do. I wish to refer you to the submission from Director Lynn Barr-Telford from
the Canadian Centre for Justice Statistics, presented to us on February 14,
2008. At that time, Ms. Barr- Telford told us that the rate of impaired driving
offences dropped 68 per cent between 1981 and 2006. That tells the Canadian
public and this chamber that we are doing something right, through education and
penalties, such as stopping drivers at checkstops during the Christmas holidays.
That is my response to the honourable senator's second question.
The real issue is this: Does the honourable senator honestly believe that if
a person's response is "yes" to taking prescription drugs that the police
officer will arrest that person? Does the honourable senator really believe
that? I do not.
Senator Baker: Honourable senators, the police have no right to arrest
that person immediately. The police have a right under this law to detain that
person without legal counsel and without activation to the Charter for a
reasonable period of time that is demonstrably justified under section 1 of the
Canadian Charter of Rights and Freedoms.
No one is arrested, but there is a detention that takes place for the purpose
of conducting these roadside physical coordination dexterity tests. No, the
person is not arrested, but certainly, if the person admits to taking drugs and
that specific drug could impair his or her driving, the officer must, under this
legislation, follow the next step, which is the physical coordination test. If
the person fails that test, then he or she must pee in a bottle.
Senator Stratton: I submit, is that not the intent of this law? If a
person were taking a medication that clearly states that the patient must or
should not drive while taking it, would honourable senators not think that is
what the police are supposed to do?
Hon. James S. Cowan: Honourable senators, all of us share a desire to
make our society safer, to protect our citizens, particularly those most
vulnerable, to deter and prevent criminal activity and to punish, in an
appropriate way, such activity when it occurs.
Senator Di Nino: We all agree with that.
Senator Cowan: There can be no disagreement or argument about those
goals. This debate ought to be solely about how best to achieve those
None of us should be satisfied with the status quo, with the measures we have
in place to protect our citizenry or to punish and hopefully rehabilitate those
who offend. Neither should we respond in a knee-jerk and ill-considered manner
to the politics of fear and sensationalism.
In its thoughtful presentation to our committee, the Canadian Bar Association
laid out a set of principles for legislative change that they believe, and I
agree, will lead to a safer society and a constitutionally sound criminal law.
These principles are as follows:
.Legislative change is necessary when there is a new or unaddressed
development in society — for example, the rise of problems related to
identity theft, or when a serious omission or a deficiency in the current
law has been empirically demonstrated.
.Available resources and the efficient operation of our courts are
important considerations, and unnecessary litigation and constitutional
challenges should be avoided.
.The public is protected when police and prosecutors have adequate
resources to enforce current laws and when the resource implication of
changing current laws and adding complexity to them is considered.
.When crime does occur, a proportionate response that balances all
sentencing goals in the Criminal Code will ultimately reduce further crime
when offenders return to the community.
.Finally, trial judges are in the best position to determine an
appropriate response to a particular crime, as they have the unique
opportunity of observing all participants and hearing all the evidence
Unfortunately, honourable senators, this bill has much more to do with
political posturing than it does with making good criminal justice policy. It
reminds me in many ways of a previous C-2 — the much vaunted Accountability Act
— touted by the government as the most significant piece of legislation with
respect to accountability and transparency in Canadian history. Indeed, its mere
passage would clean up Canadian politics.
Honourable senators, we know now, more than 14 months later, that many of the
parts of that act have not even been brought into effect by this government.
Others have proven to be ineffective or hobbled by a whole slew of unintended
Therefore this bill, grandiosely styled "tackling violent crime," is at its
root in many respects a simplistic, ideological piece of political propaganda.
Once again, the Harper government is more focused on appearing to make positive
change than on producing legislation that will actually make that change.
Some Hon. Senators: Smoke and mirrors.
Senator Cowan: Smoke and mirrors, I agree. This, honourable senators,
is not responsible government. The Canadian public must not be fooled. Rhetoric
and exaggerated claims of cleaning up our streets, solving the fiscal imbalance,
or increasing accountability in government must be closely scrutinized.
As senators, we have a responsibility to inform Canadians of the actual
impact of the legislation we pass. Time and again in committee, we heard
evidence that nothing in this bill really does anything to make our society
safer, with one notable exception: If this bill passes, and if the prosecutors
take full advantage of its provisions, more Canadians will spend more time in
jail. Obviously, those persons will not be in a position to reoffend against the
society outside of that jail so long as they are incarcerated, although it is
clear that many of them will use their jail time to perfect their skills and a
large percentage of them will reoffend when they are released back into society.
While the government has made some effort to provide the financial resources
necessary to deal with the increased prison population that will inevitably
result from these measures, we heard evidence that the government's estimates as
to the numbers of additional persons who will be incarcerated are woefully
Honourable senators, I want to take a few minutes to comment on one aspect of
the bill — that is, mandatory minimum sentences. The bill seeks to add a number
of offences for which mandatory minimum sentences are prescribed and to increase
the length of sentences for some offences that are already subject to the
minimum mandatory sentence regime.
In 1995, Parliament amended the Criminal Code to introduce a number of
mandatory minimum sentences for a specific set of crimes. One would have
expected that before expanding and extending the mandatory minimum sentence
regime, the government would have undertaken or commissioned some research to
assess the effectiveness of this mechanism as a means of reducing or deterring
Honourable senators, no research or other evidence was provided by the
government or by any witness appearing before the Standing Senate Committee on
Legal and Constitutional Affairs to support the government's contention that
mandatory minimum sentences are an effective tool to deter criminal activity.
Instead, the government seeks to rely purely on anecdotal evidence to support
Honourable senators, almost without exception, the evidence before the
committee was that mandatory minimum sentences simply do not work as a means to
deter or prevent criminal activity. It is not the length of the sentence but,
rather, the fear of being caught that is the real deterrent to those
contemplating a breach of the criminal law. The Canadian Bar Association, the
Barreau du Québec and several leading Canadian and international criminologists
all testified to this fact.
We also heard concerns expressed about the disproportionate impact that
mandatory minimum sentences have upon minorities, particularly Aboriginals.
Aboriginals make up approximately 3 per cent of the Canadian population, yet
represent 20 per cent of the male and 30 per cent of the female prison
population of this country.
This phenomenon exists not only in Canada but also in other countries such as
Australia. Indeed, we heard evidence that at least in one Australian
jurisdiction consideration is being given to repealing certain aspects of their
mandatory minimum sentence provisions because of their disproportionate impact
upon the Aboriginal population.
Honourable senators, regretfully, one is left to conclude that a large part
of the legislative regime proposed by this bill is driven by the right-wing,
ideological distrust of our judicial system held by this government. Canada has
a highly qualified and widely respected judiciary. This legislation removes much
of the judicial discretion that has been the hallmark of our sentencing regime.
The Criminal Code of Canada contains a balanced set of sentencing principles,
set out in sections 718 and 718.1 of the code. As I noted earlier in quoting
from the submission of the Canadian Bar Association, trial judges are in the
best position to determine an appropriate response to a particular crime, as
they have had the unique opportunity of observing all participants and hearing
all of the evidence first-hand.
Similar sentiments were expressed by the Barreau du Québec, the British
Columbia Civil Liberties Association, the Criminal Lawyers' Association and
several leading criminologists who have testified before the committee.
Unfortunately, honourable senators, the focus of this bill is almost
exclusively on punishment and retribution, to the disregard of the other
principles of sentencing set out in the code. Throughout the testimony presented
to our committee, many alternative solutions for reducing crime were presented,
yet this bill ignores virtually all of those alternative solutions in favour of
We heard persuasive testimony that the costs inherent in an increase in
mandatory minimum sentences could be spent more effectively if focused on crime
prevention instead of punishment. The Canadian Bar Association, the Canadian
Council of Criminal Defence Lawyers, L'Association Québécoise des avocats et
avocates de la defence and the John Howard Society all testified that our money
would be better spent dealing with the root causes of crime.
If we are to extend the mandatory minimum sentence regime, surely we would be
wise to retain some sort of judicial override to enable a trial judge, subject
of course to the review of our appellate court structure, to intervene in
exceptional circumstances to vary the mandatory minimum sentence, thus avoiding
an unjust and disproportionate sentence.
As Professor Julian Roberts, a noted criminologist from Oxford University,
Nearly everywhere, even in South Africa where they are particularly
tough, they allow some degree of judicial discretion, and that puts Canada
out on a limb.
One unintended consequence of removing the discretion from the trial judge is
to place that discretion in the hands of the police and the prosecutors, from
whose decision there is no appeal.
Honourable senators, perhaps the cruellest irony of all is that Canadians
will be misled by this government, as they were in the case of the Federal
Accountability Act, to believe that the passage of this bill will magically make
our society safer. As Professor Anthony Doob of the University of Toronto said
in response to a question from our colleague, Senator Andreychuk:
. . . in the long run, whatever you do on this bill, do not fool yourself
into thinking that you have done anything at all that will make any of us
any safer. Whatever decisions you make will be for reasons that should not
include public safety.
. . . in the end this will not address the issues. This will make people
feel as if Parliament has done something, and that feeling will be wrong.
Honourable senators, let me quote the words of Kirk Tousaw, the Chair of the
Drug Policy Committee of the British Columbia Civil Liberties Association, who
appeared before us the other day.
I am sorry that the Leader of the Government in the Senate finds that the
views of the Civil Liberties Association are so amusing to her. Perhaps she
would do them the courtesy of listening to the quote before she laughed at it.
The Hon. the Acting Speaker: Order.
Senator Cowan: Let me quote the words of Kirk Tousaw, the Chair of the
Drug Policy Committee of the British Columbia Civil Liberties Association:
The civil liberties that Canadians enjoy and that form the cornerstone of
our democracy are rarely more at risk than when the government acts in the
area of criminal justice policy. Changes to the criminal law should, at
minimum, be contemplated only when there exists a demonstrable social need
for the change; and they should be implemented only after very careful
consideration of the need and the effects of the policies at issue.
Unfortunately, Bill C-2 fails on both counts. The proposed legislation
does not respond to any actual or perceived need in the Criminal Code, as
many others, including criminology professor Neil Boyd, have noted before
this committee. Perhaps worse, the process by which this bill was pushed
through the House of Commons, and the attempt by the government of the day
to pressure this body into quickly passing the bill, demonstrates
significant disregard for the principles of careful consideration,
reflection and debate over deeply important issues.
Honourable senators, for these and a host of other reasons, I cannot support
the bill in its current form. In conclusion, I commend for your careful
consideration the observations appended to the report tabled earlier this
afternoon by Senator Fraser, which were agreed to by committee members on both
sides of the house.
Some Hon. Senators: Hear, hear!
The Hon. the Acting Speaker: Will Senator Cowan accept a question?
Senator Cowan: Of course.
Hon. Gerry St. Germain: Honourable senators, I certainly do not take
the presentation of Senator Cowan lightly. I think we all are serious in what we
do in this particular house, as they were in the other place. The honourable
senator made reference to the bill having been pushed through the other place.
The government does not have a majority in the other place, so to say that
pushing took place is something of an extreme description.
My question relates to the B.C. Civil Liberties Union representative who
stated that demonstrable need for change is required. There is an epidemic of
grow-ops in the province of British Columbia's drug trade. It is a sad
commentary. I know there are some who want to legalize grow-ops, but I am not
one of them.
Senator Campbell: Think of the B.C. economy.
Senator St. Germain: I should be thinking of the economy. However,
right across the border — and I am not saying that we should emulate the United
States of America — they have laws that stipulate that if you are caught in
possession of drugs, your sentence is directly related to the amount of drugs
with which you are arrested. The criminal element travels back and forth and
sees no borders. They make a mad rush for our Canadian border, whether in
helicopters, airplanes or vehicles, to escape the American authorities simply
because they have mandatory minimum sentences for these drug offences. We have
criminal and gang activity. Murders are committed on almost a daily basis in the
metropolitan area of Vancouver. Why would the honourable senator or his side of
the house be opposed to trying to bring those elements under control, to improve
life and remove danger from British Columbia society and all Canadians?
Senator Cowan: I thank Senator St. Germain for his thoughtful
question. I will clarify the comment about the bill being pushed through the
House of Commons. Those were not my words. Those were the words of the gentleman
from the B.C. Civil Liberties Union.
I agree with the honourable senator. Intuitively, one would think that a
longer sentence would deter criminal activity, but I will leave others to refer
to one notable exception, if they wish. However, all of the evidence that we
received and all of the studies to which we were referred say that the fear of
being caught is the deterrent. The length of the sentence has no deterrent
effect. There are literally no credible studies anywhere that would support that
proposition. I agree that it is intuitively correct that if the sentence is made
tougher, that will act as a deterrent to people who are thinking about
committing the crime, but the evidence we heard was that it is not the length of
the sentence but the fear of being caught that is the deterrent.
The issue really, senator, is, if that is so, what measures are really
appropriate and need to be made and what changes need to be made to the Criminal
Code to deal with the kind of situation that all of us abhor? No one is
defending the rights of criminals to carry on their activity. Everyone is
looking to make our society safer. I thought I made that point clear at the
outset of my speech. We all share those goals. The argument is about whether or
not the measures that have been introduced here will have the effect that we
would hope that they would have, and I express doubt, based upon the evidence
that I heard, that they will. I hope that I am wrong and the honourable senator
is right, but the evidence presented to us from criminologists and others who
know far more about this than I have said that that simply is counter-
intuitively not correct.
Senator St. Germain: How do we reconcile the fact that criminals are
making the run for the border? The grow-ops are in Canada. There are some across
the border, but by no stretch of the imagination in the numbers that we have in
Canada. As well, if the deterrent is merely the fear of being arrested and not
the sentence, why would criminals make a run for the border? The American arrest
process is not that much different from the Canadian. If that is the fear, what
would be the difference of being arrested in Washington or British Columbia? The
sentence must have some impact, from my perspective. Perhaps the honourable
senator can explain that to me.
Senator Cowan: I certainly do not have knowledge compared to the
knowledge that Senator St. Germain might have about the situation in his
province, and I defer to him in that regard. It may well be that these people
feel they have a better chance of carrying on their activities in British
Columbia without getting caught than they do in the United States.
As I said in my speech, honourable senators, we had no evidence to the
contrary. I started my work on this bill in exactly the same position as Senator
St. Germain, saying it makes sense to me that if you increase the penalty and
make it tougher, that will have a deterrent effect. However, none of the
evidence that we received supported that position. One would assume that if the
proponents of the bill had evidence to the contrary, they would have presented
it to the committee, but they did not, so we are left to assume that that
evidence does not exist, in which case the only explanation I can offer is that
these people may feel that they have a better chance of avoiding detection and
My final point is that the statistics are very clear. The U.S. has, as the
honourable senator has said, a tough sentencing regime and has many more
examples of mandatory minimum sentences than we do in Canada. However, criminal
activity in the U.S. is far higher than in Canada. Perhaps Senator Bryden may
remember the specific number. However, the level of incarceration is seven times
as high in the U.S. as it is in Canada. If incarceration is the answer, their
incidence of criminal activity ought to be lower and it is not.
There may be a variety of sociological and other reasons that play into this.
One of the points that struck me through this study is that this is a very
complex issue and to look at amendments to the Criminal Code alone, and to say
this will provide a solution, is far too simplistic. There is a range of other
problems in education and in dealing with poverty. All of us heard evidence, and
I think all of us who heard that evidence would agree that this is part of a
much larger puzzle that needs to be addressed not only at the federal level but
at the provincial and municipal levels as well.
Senator Stratton: If the honourable senator recalls, the Minister of
Justice said that this is just one part of addressing the issue. Throughout the
hearings, I referred to this as a three-legged stool which is a reference to the
milking stool of the old days. That reference is based on a three-legged
approach with the first being help in the community and in society, which this
government has tried to do; the second leg would be putting more police on the
ground, because that is obviously part of the problem; and the third leg is this
The honourable senator stated that Aboriginals are overrepresented in our
prisons. That is true. However, remember that Aboriginal victims are
overrepresented in our society and that is the tragedy. I have a real problem
with remote reserves. They really bother me.
We have been told that the solution to this, ultimately, is education.
However, that will not be a short-term solution. A solution will take years. We
all know and have known that for years. One can now see the changes in the
Aboriginal community. They are taking responsibility for what they are doing and
doing things that I think are really good to see and watch. One sees young kids
gaining education at ever greater rates. The problem is that this is a very slow
Bill C-2 really addresses reoffenders. They are violent and the statistic we
heard was 90 per cent of reoffenders are sexual offenders. Why would we not go
after them? We are not going after a kid that has done wrong and is put in the
slammer. We are going after the reoffenders. The evidence presented was that
there are 50,000 predators online at any given time throughout the world.
With these people trying to make contact with a child for sexual purposes,
does the honourable senator not think we should go after them? They are the
people who reoffend. They are the problem. They are the folks that the bill is
Senator Cowan: Honourable senators, I do not disagree with anything
Senator Stratton said. I think what we have here is a public relations exercise
cobbled together in an omnibus piece of legislation. Fine, I will take Senator
Tkachuk's word that the proposed legislation is comprehensive. It is certainly
There are many parallels here with the Federal Accountability Act. We will
have a series of unintended consequences from putting this together. If the
government had been more precise in dealing with the situations that the
honourable senator wanted us to deal with, that would have been much easier.
Instead, they cobbled this bill together in their comprehensive legislation. I
think they end up with something that will not do what they claim; that
beginning as soon as this bill receives Royal Assent, suddenly, our streets and
our citizens will be safer.
Regretfully, I do not believe that will be so. I hope I am wrong, but I do
not think I will be.
Hon. A. Raynell Andreychuk: The honourable senator used the word
"irony." When I approached Bill C-2, I was concerned about the proportionality
in sentencing and I was also concerned about mandatory minimum sentences and
The irony I found in the testimony was that when the honourable senator
referred to section 718 of the Criminal Code, the purpose of sentencing and
proportionality, we later added 718.1, then we added 718.2 and the amendments
were — this is where I find the irony — in 1995, 1997, 2000 and 2001. The
concerns about proportionality did not start with Bill C-2. They have been
embedded in the sentencing.
Professor Doob, from the University of Toronto, was making a plea to look at
the whole issue again. He urged us to pass Bill C-2; his concern was more for
the criminal justice system, and I think the honourable senator and I agree in
I also asked Professor Doob if he believed it is unconstitutional to have
mandatory sentences. I do not have the transcript at hand, but he spoke to that
issue. He went back to the amendments of 1995 and those that followed. One must
reflect on the governance of the day.
The question he answered that resonated with me is that Parliament has the
right to put in sentencing principles and to guide the courts. The courts,
inevitably, will continue to answer whether they think we have drawn the line
inappropriately and unconstitutionally. That is where we gave great latitude to
those who are worrying whether the bill will pass the constitutional test.
Most representations pointed out that the mandatory sentences were already
there and that the same arguments had been made previously. Therefore, Bill C-2
is not the trigger for mandatory minimum sentences. The triggers were set in the
Does the honourable senator believe that Professor Doob's testimony goes to
the heart of the fact that we constantly have to address this parliamentary
right to set sentencing principles and impose what they believe is right?
Meanwhile, should we be mindful that the courts may in time disagree with us?
Senator Cowan: Certainly, I defer to Senator Joyal on the
constitutional matters and I am sure he will address those issues later this
afternoon. However, what the honourable senator said supports the position I put
forward when I spoke a few moments ago. We already have sentencing principles
embedded in the Criminal Code. They were embedded by Parliament and we have
judges who apply the system. I object to the fact that, for apparent ideological
reasons, the government is taking away the power that those judges have. That
leaves the application of strict principle; the judge has no discretion. Even
when left with some discretion, the judge would say, "In these circumstances —
having regard for all the circumstances — this minimum mandatory is
inappropriate." It then drives that decision back to the prosecutors and the
police. I would argue that we are better served by having the judges apply those
If Parliament wishes to change the principles that will be applied by the
courts, that is fine; that is perfectly legitimate. Perhaps the balance needs to
be changed. As Senator Andreychuk mentioned, within the past 10 years there have
been several modifications to those sections of the Criminal Code. That is
entirely appropriate. However, it is inappropriate to say, "No more will the
judges have that power to exercise the discretion" which, as a judge, you would
want to exercise. The honourable senator was a judge. She was the one who heard
the witnesses and saw the evidence. To simply say, "No longer does it matter
what you, as a judge, think. It is simply a matter of looking down a chart and
indicating the number." I think that is inappropriate. That is the objection I
have to that provision.
I will leave it to the Honourable Senator Joyal to address the
constitutionality of this issue. It is my understanding that the courts have
said, within certain parameters, mandatory minimum sentences are acceptable. The
issue will be whether these mandatory minimum sentences for these offences meet
that test. I do not know the answer to that.
Senator Andreychuk: The honourable senator characterized this in a
certain way and I will make my question short.
For ideological purposes — or perhaps it was practical, sound responses to
communities —the previous government put in mandatory minimums. Professor Doob
said that Parliament and government has the right to set parameters. Judges do
not have an unfettered discretion; they have the discretion granted to them.
Parliament has the right to change the breadth and the scope of the
discretion. Mandatory sentences were put in and tested. Perhaps some of us,
ideologically, did not want them but the government in the 1990s, when I sat in
this chamber, took away minimums. Was I right or were the people of Canada,
through their government, right? Time will tell, will it not?
Senator Cowan: I understand and appreciate that point.
I think it was in 1995 that we introduced those mandatory minimum sentences.
We now have 12 years of experience with them. No one is disputing the right of
parliamentarians to impose mandatory minimum sentences. They have that right and
we will see whether or not that meets the test; the courts will decide that.
Surely the point is that, after 12 years, before we go further down that
road, should we not know, to the best of our ability, whether mandatory
sentencing works? We do not know. Indeed, the evidence we have indicates that it
does not work. Mandatory sentencing may achieve some other purpose, but if the
purpose is to deter criminal activity, the evidence that we heard was that it
does not work.
If I am serving a mandatory minimum sentence, clearly I am not in a position
to reoffend against anyone other than my fellow prisoners. The uncontradicted
evidence we heard was that it does not deter people from criminal activity. We
discussed this a moment ago with Senator St. Germain. To deter people from
criminal activity is the point. Its purpose is not simply to punish those who
Senator Andreychuk: I have a subtext to that. Was it not fair that we
could not get information because, after 1995, no one collected statistics,
despite the recommendation to do so? We do not have that evidence because it was
not collected. We, again, have made our point in our observations that
statistics should be maintained. One would hope that, this time, this government
will respond and start to collect statistics.
Senator Cowan: As usual, we agree.
Senator Andreychuk: Thank you.
Hon. Bert Brown: Honourable senators, my question to the Honourable
Senator Cowan is that if the honourable senator sincerely believes he has the
evidence to prove that mandatory sentences — or any length, or increase or
decrease of sentencing — do not have any effect, then, in reality, do we need
any laws at all? If there is no difference between a police officer stopping
someone for wavering while driving or on suspicion of drug impairment or violent
crime and there is no other choice for him but to let him go, then there is no
sense at all.
If an officer makes an arrest for any one of the crimes mentioned, then that
is proof of success, unless there has been no one who ever went to prison in
this country who did not reoffend. If anyone was ever deterred from repeating a
crime, then it is proof that law and punishment works. In regard to this bill,
is the concern only to the degree of how many people we have who reoffend, and
whether we want to worry about whether drunken drivers, child molesters or
violent criminals who use guns have a sentence that deters them?
We are not arguing about whether or not we want laws to protect the rest of
our society, our children, our friends and our loved ones. We are arguing about
whether, when someone repeats and commits violent crimes with guns, or repeats
with drunken driving, that there should be mandatory sentencing. That is what we
are arguing about. We are not arguing about the rest. It does not matter how
many experts are brought in to say that mandatory sentences do not work. It is
obvious that some people in this country who have been incarcerated to one term
or another have not reoffended, unless it can be said that anyone who has ever
been convicted in Canada automatically reoffends, regardless of the sentence or
It is totally illogical to say that the evidence says people do not respond
to a length of a mandatory or longer term.
Senator Fox: Are you are saying there is no evidence?
Senator Brown: The honourable senator is saying that no one has ever
been deterred by our criminal system in the past. No one has ever stopped doing
criminal acts because they were arrested and deterred for whatever length of
time. We are talking about whether we lengthen that length of time or whether we
stop judges from allowing people to drive drunk and kill some of our friends or
Some Hon. Senators: Question!
Senator Brown: Judges who say, "I will give him a slap on the wrist.
I will give him a minimum sentence. I will give him six months' probation" or
whatever have been an outrage in this country for many years. It is not whether
judges are competent or have ability but whether they are being too lax in
sentencing. That is what this bill is all about.
Senator Cowan: I will make two comments in response to Senator Brown.
First, I did not say that there was no evidence to say that mandatory sentences
did not work. I simply said there was no evidence brought before the committee
that would indicate that that was so. It may well be there are individuals who
were deterred from committing a crime because of the sentence that would be
imposed if they were caught. That may be so.
Intuitively, as I said in my response to Senator St. Germain, I agree with
that. That makes sense. However, the evidence that we had indicates that
intuition is wrong. It is not the length of the sentence that is important. I
agree with the honourable senator: One would think it would be important. It is
whether or not you will get caught. That was the evidence we had before the
committee. If there was other evidence that the honourable senator is aware of,
we did not have it.
The other point about the problem with the system is that the judges are too
lax. We have an appellate court structure in this system, honourable senators.
If the Crown feels that the sentencing judge has imposed too lenient a sentence,
there is the capacity to appeal the matter again and again. That is a system
that I think better protects and better balances the criteria set out in the
All of us, I am sure, could point to an instance in our own community where
we feel, based upon some newspaper report, that the judge is wrong. "How could
that person be out on the street after two years or whatever? Look at what he
did. Is that not terrible?" The fact of the matter is that you and I are
reading those newspaper reports or watching that television program, not sitting
on the bench in a courtroom, trained to analyze the evidence and apply the
sentencing provisions set out in the Criminal Code, to apply an appropriate
sentence, having regard to all of the circumstances and to the issue that is
before the court.
Hon. Lillian Eva Dyck: Would the honourable senator take another
Senator Cowan: Surely.
Senator Dyck: As you might imagine, my questions relate to the
Aboriginal population. As the honourable senator probably knows, up to 80 per
cent of Saskatchewan's prison population is Aboriginal. As Senator Cowan pointed
out in his summary, as in the report, the percentage of Aboriginals incarcerated
is about 20 per cent all across Canada.
I have listened to various comments about child molesters. Of course, we all
want to punish child molesters; we do not anyone to suffer at the hands of a
Of the list of witnesses who appeared before the committee, were, let us say,
20 per cent from the Aboriginal population? Did the committee hear from people
like the Aboriginal Healing Foundation, or from Aboriginal judges or elders who
would have related their perspective on whether punishment would work?
It is ironic that this bill coincides with the ongoing Indian residential
school settlement claims. We all know that many Aboriginal children were
molested while they were in residential schools; we also know that a high
proportion of Aboriginal people who are within the criminal justice system are
re-enacting what happened to them.
My guess would be that punishment, in this case, does not work. Although it
is good to get tough on crime, we must also be serious about rehabilitation.
In the witnesses that appeared before the committee, was there a perspective
that would represent the Aboriginal culture, that would indicate whether they
were in favour of this bill or whether they thought there were flaws with it?
Senator Cowan: I wish to thank the honourable senator for that
question, which is a very important one. I do not have the list of witnesses in
front of me; hence, I shall have to rely on my recollection. Perhaps my
colleagues will help me if I miss someone here.
We had a senior officer from the Royal Canadian Mounted Police, who was an
Aboriginal and who had spent a large part of his career dealing with these
issues. We heard from the Aboriginal Legal Services of Toronto. I know that
Senator Merchant was particularly diligent in questioning a number of witnesses
— not just those two witnesses — because of her experiences in Saskatchewan as
I think all of us agree, even in the discussion we have had this afternoon,
that whether this bill is good or bad, it is only one part. If it is good, as
the government would contend, it will not solve the problem that the honourable
senator and I are discussing right now. There are many more things; perhaps
there are some circumstances that are peculiar to the Aboriginal population,
which do not affect the rest of the population, that need to be addressed. This
government and other governments are struggling with that issue.
No one would pretend, whether or not they agree with this bill — and I think
Senator Stratton made this point when he asked me a question a few minutes ago —
that, in and of itself, this bill will solve the problem. There are a variety of
other issues to deal with.
The Hon. the Speaker: Senator Cowan's 45 minutes has elapsed.
Continuing debate with the Honourable Senator Joyal.
Hon. Serge Joyal: Honourable senators, I understand that, according to
the tradition in this chamber, we alternate from one side to the other. As
Senator Cowan has just spoken, if there is another speaker on the other side, I
would certainly wait until that person has been given preference.
Honourable senators will recall that there were two bills prior to Bill C-2.
We started the debate on one related to the age of consent and another one, Bill
C-27, in relation to dangerous offenders.
When Bill C-2 was referred to us, I tried to put the bill in the broader
perspective of changes that it would bring to the Criminal Code on five
accounts. The first was minimum sentencing — and I listened carefully to the
statement made by Senator Cowan and to the questions raised by Senator Brown and
Honourable senators, one thing that we must keep in mind is that the
Department of Justice itself does not believe in the effectiveness of minimum
sentencing. I repeat: The Department of Justice does not believe in the
effectiveness of minimum sentencing, so much so that the legislative summary
prepared by the Department of Justice states:
. . . existing research generally does not support the use of mandatory
minimum sentences for the purpose of deterrence . . .
That was your question, Senator Brown.
The legislative summary goes on to say:
Incarcerating offenders for longer periods results in increased prison
costs, which are not necessarily offset by any reduction in crime rates and
Honourable senators, when you are called upon to study a bill that deals with
minimum sentencing and the proponent department tells you that they do not
believe too much in its effect on crime reduction and that it creates additional
social problems, as one of my learned professors would say, "You put your
glasses on your desk."
The other statistics that we were given at the committee hearing are the
statistics coming from the Canadian Centre for Justice Statistics. We heard from
the director there. This is not a lobby group; this is not the BC Civil
Liberties Association, to which some of you do not seem to afford much
What does the Canadian Centre for Justice Statistics tell us generally about
crime rates in Canada, to try to understand which problem we are addressing
here? Are we addressing a problem that has reached tremendous proportions and
calls for immediate intervention?
Honourable senators, according to the Canadian Centre for Justice Statistics'
figures released on October 17, 2007 — a very recent set of statistics — the
national homicide rate dropped 10 per cent in 2006. In 2006, the crime rate was
27 per cent lower than in 1991. The 2006 crime rate was at about the same level
as in 1979. The rate of victims of firearm-related violent crimes remained
stable between 2003 and 2006.
Another statistic, honourable senators, is that the rate of homicides
committed with a firearm in 2006 was 47 per cent lower than in 1977. Let us look
at other statistics: The rate of other sexual offences declined by 44 per cent
between 1993 and 2003. I am not saying that a sexual offence is not serious, but
I am saying that currently in Canada we are not caught in a crisis on crime. I
am as offended and infuriated as anyone when I listen to or read a crime report
in the media. However, if we are called upon to legislate in this respect, then
we must know the social context so that we may address the situation.
Let us look at other facts. The second element of Bill C-2 addresses the
issues of impaired driving. What are the statistics on impaired driving? Recent
statistics on impaired driving show that the rate of impaired driving offences
was up 68 per cent between 1981 and 2006.
I am not saying that an impaired driver who kills a family of five is not a
criminal and should not be punished. However, if we are to address this issue
properly, we must understand which existing measures work and which ones do not
work. Before we change something fundamental in the Criminal Code, we must
understand the impact of that change on the social fabric of Canada. For
instance, if we are to address impaired driving with drugs, we must understand
the impact of drugs on drivers.
Honourable senators, read the observation appended to the report on Bill C-2
presented in the Senate today. It states:
The fact remains, however, that for the vast majority of drugs no
scientific data exist to determine the levels of consumption at which
impairment actually occurs. It will be several years before such levels are
determined for even the most common illegal drugs.
Honourable senators, we do not have all the information. Refraining someone
under the influence of drugs from driving is a good intention. No one will argue
that, but if we want to include drug-impaired, as we have alcohol-impaired, then
we must understand the biological phenomenon, and scientists tell us that they
do not understand this phenomenon.
Based on the facts that no study and no statistics show that there is a real
crisis, and given the lack of fundamental information relevant to some of the
offences that this bill will create, the next question is this: What is the
impact of those measures on minorities? We all know that the Canadian prison
system is equivalent to a minority issue. When I mention minority issues, as was
stated by Senator Cowan, Senator Dyck and others, I mention Aboriginals, women
and people of colour. Honourable Senator Oliver attended the meeting of the
Legal Affairs Committee when we heard from Howard Sapers, the Correctional
Investigator of Canada.
Senator Oliver quite properly asked four questions about the impact of the
coloured population in Canada's prisons but he did not receive the information
he wanted because the statistics were not available. Appropriately, he requested
those facts to help the committee have a better understanding.
I will quote from the brief prepared by the Criminal Lawyers' Association,
who appeared before the committee on February 7, 2008:
Mandatory minimums disproportionately affect minorities. The research and
available data support no other conclusion.
The aboriginal community in particular is already grossly
over-represented in the prison population.
We have legislation in that respect. The brief continued:
Parliament has recognized this gross disparity by enacting s.718(2)(e)
— which Senator Andreychuk quoted from the Criminal Code —
which requires judges determining fit and proper sentences to give
consideration to the circumstances of aboriginal offenders.
Under this bill, with its mandatory minimum sentences, we will prevent judges
from using section 718(2)(e) in making those determinations. We will put
more Aboriginals directly in prison and not submit them to healing circles.
Honourable senators, I was appalled when I heard the testimony of Mr. Sapers,
the Correctional Investigator of Canada. He does not have a lobby group behind
him; he is an officer appointed to ensure that the correctional system in Canada
functions properly. What did he tell us with respect to the functioning of the
Canadian correctional system in respect of the Aboriginal population? Mr. Sapers
. . . I identified the following specific barriers to reintegration in
the areas of access to programs: long waiting lists for programs in most
regions, resulting in programs being provided late in the offender's
sentence, well beyond his or her parole eligibility dates; waivers,
postponements and withdrawals of applications for National Parole Board
hearings because of lack of program access; a shortage of program
facilitators and program officers, especially those with the skill sets
required to deliver Aboriginal-specific programming; limited access to
programs in the community, especially for women and Aboriginal offenders;
limited or no anti-gang programming in most institutions, meaning that, by
default, reliance on segregation is quickly becoming the norm in this area;
delays in the evaluation and national implementation of Aboriginal-specific
programming; and a chronic shortage of Aboriginal-specific core programming
in maximum security institutions, which means that Aboriginal offenders
cannot carry out their correctional plans and transfer to lower security
institutions where the programming may be available.
With a total budget of $1.8 billion, Correctional Services of Canada
allocates only $27 million for core programming, or 1.5 per cent of its total
budget, while the Aboriginal population represents 30 per cent of the prison
Honourable senators, we are being called upon to legislate Criminal Code
issues that will increase problems and not help to solve them if those areas of
Bill C-2 are not on par with the proper investment and training in the prison
system, no matter the good intentions. I do not question good intentions to
fight crime in society; it is a duty of government to do so, and taxpayers are
well founded to keep the government so accountable. However, we must know
exactly what we are doing. This bill will have unintended consequences on the
social programs across the country; it has major flaws in respect of the
Canadian Charter of Rights and Freedoms.
Let me put forward two examples. The first example respects the age of
consent. Everyone is against sexual predators — we are all agreed. However, this
bill will not help to solve that problem; instead, Bill C-2 will create a
two-class status for this criminal offence. A 14- to 16-year-old who marries
with parental consent will be allowed to have sexual intercourse. The person
will receive proper recognition from a court of justice because he or she is
married. However, that will not apply to a couple in a common law relationship
because the bill states "marriage." We know that half of the couples in Canada
live common-law and among youth probably 60 per cent live in common-law
Senator Grafstein: It is over 50 per cent.
Senator Joyal: The bill does not cover parental acceptance of youth
living in a common-law relationship. In fact, they would be accused of
complacency because they know that their child is engaging in sexual intercourse
under a common-law situation.
Honourable senators, I request five minutes longer.
Hon. Senators: Agreed.
Senator Joyal: The situation remains the same for a parent consenting
to a sexual relationship between their 15-year-old child and his or her
21-year-old partner. If parents do not provide consent under this bill, that is
not a defence. That is only a defence if parents consent to marriage.
Honourable senators understand what will happen. There will be a challenge of
discrimination based on age. The case will go to the Supreme Court, and then we
will accuse the court of activism. We will create the other problems that we
want to address.
Senator Grafstein: Over-judicialization.
Senator Joyal: In respect to the government, this amendment was not
brought by the government. It was brought by the chamber in the other place, and
I want that to be fully recognized.
Let me give honourable senators another example. Dangerous offenders get
three strikes, which seems to be fine. We all want to put dangerous offenders
behind bars such as the Clifford Olsons of this world. Another example is Robert
Pickton, from British Columbia. We were all scandalized by that case, but listen
to this bill: Three strikes for any offence that deserves more than two years in
Honourable senators, I urge you to look at the Criminal Code and make a list
of all the offences that require a sentence of more than two years in prison.
That means that if someone commits an offence at the age of 19 and commits a
similar offence at the age of 39 — 20 years later — and another one at the age
of 49, he has committed three strikes and now he is a dangerous offender, with a
lapse of 20 years and 10 years between offences. He then goes to prison for an
unlimited period of time.
Honourable senators, we have already heard of examples of detention for
unlimited periods of time. I look to Senator Nolin with respect to security
certificates. The Supreme Court said clearly that a person cannot be detained
for an unlimited period of time for a crime that he has not yet committed but is
believed he might commit in the future. That is preventive detention; that is
not detention because the person has committed a crime.
This bill does not provide that, after a certain period of time, the person
must be brought back before the judge and the judge must evaluate the condition
of rehabilitation, their psychiatric condition, their social condition, and so
forth, in order to make it fair to detain that person continuously. Last year, a
decision of the Supreme Court re-established those principles of fundamental
Honourable senators, on Friday, February 15, I received an email from
Professor Ned Franks. Some honourable senators may know Professor Franks. He
appeared as an expert witness on the Federal Accountability Act. He has
participated in numerous Royal Recommendations on behalf of the federal
government. He has published 13 books. He is a professor emeritus of political
science — and I am sure our friend knows him very well — at Queen's University.
Senator Segal may listen with interest to what he wrote in his email:
I have been following the silliness over the Senate and the crime bill
with great interest, not least because I do not find that the evidence
supports the government's contention that the proposals in the bill will
reduce crime rates and protect the public. I also strongly suspect that the
cost of implementing the provisions of the bill will be quite daunting and
that the provinces will bear much of the burden of an increased prison
This raises several questions in my mind. First, has the Senate invited the
provinces to comment on prospective costs related to provincial jail policing,
et cetera, and the bill in general? Has the Senate asked for or received any
cost estimate from the government? Has the Senate invited Sampson and others
from the Sampson panel to comment on the relation between the proposals and the
content of the bill? Has the Senate asked the government why it has buried the
You will understand, honourable senators, why I cannot support this bill.
Senator St. Germain: Honourable senators, having been a police
officer, not a university professor, and worked and lived on the streets for a
period of time, I think there is another perspective, and I do not know if it
came out at the hearings of Bill C-2.
I understand the passion Senator Joyal has for these particular issues,
especially as they relate to the Charter of Rights and Freedoms and our
However, I do not know if any statistics have been established. Any police
officer that I talk to today says that they do not lay charges any more like
they used to in the 1980s and the 1970s, the period of time from which the
honourable senator quoted figures on, simply because they do not have the time.
They have the same amount of policemen per capita, but it takes them five to ten
times longer to deal with charges, as they all have to be Charter-proof. As a
result of that, charges are not laid in the same manner they were prior to 1982.
I do not know if there are any statistics established on this. I am not being
critical. I am making an observation based on the fact that I still have much
contact with police departments; I have sat on the Vancouver Police Foundation
and completed various works of charity that have kept me close to that
This is what I want to bring up. For 12 years, I have sat here and listened
to the government of the day speak on what they plan to do on Aboriginal issues
and budgets and listened to Speeches from the Throne and what have you. The
honourable senator presents the case that this minority government, which has
been in power for two years, should be doing something in regard to healing
circles and that type of thing. Why is it that the previous administration did
not do this?
This is not a partisan issue. Let us get this straight. There was nothing
done, and we are not doing anything now, either, in this regard. I do not hear
anyone speaking of this other than in heated and emotional debates. I am not
saying that what we are doing is correct. I will say to Senator Bacon that it is
wrong. We should be doing something for the 30 per cent of Aboriginal people who
are incarcerated and do not have a proper parole system, as Senator Dyck pointed
When will we have the courage to stand up and do something instead of making
eloquent speeches? The time has come that we do something now for our Aboriginal
peoples in relation to education, housing and health.
Senator Fox: Amend the bill.
Senator St. Germain: If I submitted a bill like that, you would reject
it, Senator Fox. I know what you guys are about in that part of the country.
Having said that, I am serious, Senator Joyal. Why is it that we only bring
these things up at a heated moment like this, on something that is related to
the subject but is a subject all of its own and should be dealt with separately?
Hon. Joan Fraser: Would Senator St. Germain take a question?
Senator St. Germain: Yes.
Senator Fraser: We heard evidence about the cost of keeping a prisoner
in prison, and it varies according to the level of security. However, say for
the sake of argument that it works out to about $94,000 per year.
Do you think it might be more effective to take the money we would have spent
on 100 more prisoners and put it into preventative programs? We could take the
$9 million and put it in programs for Aboriginals and toward hiring more police
officers; we would have the money to do both. Do you think that would be a more
effective way to tackle crime?
Senator St. Germain: Certainly, I think the government of the day has
allocated funding for more police officers, and I think you have to give the
government credit for that. There is no question that I would be open to any
suggestion that would help the plight of our Aboriginal people.
I worked with several senators from the other side, including Senator
Peterson and Senator Hubley and various others. I am not saying that other
people have not before us sincerely tried to rectify the wrongs that have been
imposed on our First Nations people. If that idea would work, I would certainly
look at it. I would look at anything, because it is a disaster.
We just had an incident on the Yellow Quill reserve, which was a terrible
disaster. This was brought on by a history of mismanagement of reserves, of
welfare, of residential schools; the list goes on and on. We have destroyed
these people. We have killed them. We have killed the spirit in them. If we
could reinvigorate the spirit in these people, I would do anything, whether it
is your suggestion or money. I am not sure that money is the only solution, but
my mind is open to anything and everything that would help these people.
Hon. Francis William Mahovlich: I am addressing this question to
Senator St. Germain. An ounce of prevention is worth a pound of cure, as the old
saying goes. If this bill goes through, it seems like we will build more prisons
than we will schools. Does the honourable senator agree?
Senator St. Germain: Honourable senators, there is no question that
there are no schools in this particular bill, but the fact remains that
prevention is definitely an area that we should be working towards. It is a
credible idea, but it does not deal with the situation we are debating right
now. We are talking about a portion of the Criminal Code dealing with penalties,
and so on. However, the honourable senator is correct that education is the
foundation and one of the steps.
Senator Mahovlich: Education is deterrence. If you are going for
deterrence, we do not need jails but education.
The Hon. the Speaker: Are there any further questions or comments?
Hon. Francis Fox: Honourable senators, I rise to participate in the
debate on third reading of Bill C-2.
I would like to start with two tributes. First, to the Chair of the Committee
on Legal and Constitutional Affairs, Senator Fraser, for all the work she has
done so that the Senate can fully play its role as legislator, proposing
amendments and returning an amended and greatly improved bill — and God knows it
needed improvement — to the other House. She did not have the opportunity to do
so, for obvious reasons.
My second tribute is to the witnesses who appeared before the committee. I
think it was Senator Stratton who mentioned that 55 witnesses have appeared
before us in the past few days to share their views on the bill. They knew the
constraints the committee was under, but still came because they had important
things to say about this bill, which most of them thought had deficiencies and
major flaws. Some may have even found it to be an abomination of a bill, if it
were not amended.
The irony is that for a bill called the "Tackling Violent Crime Act," our
first witness was the Minister of Justice, and the first thing he did was put a
gun to our heads and say that unless we passed this bill before March 1 without
amendment, in accordance with a motion adopted in the House of Commons, he would
return to his party leader and recommend that this be a confidence matter.
I will quote the minister's response — so there is no ambiguity — when I
asked him the following question:
Is the minister telling us in advance that he would not accept amendments
from this committee should we succeed in pointing out gaps, shortcomings or
undesirable consequences in his legislation?
I believe we have got it right, and I am asking you to pass this bill
without any substantial amendments.
That was the situation when we began examining this bill. In my opinion, it
was an attack on Canada's parliamentary institutions. That is the first point I
would like to make. Others are going to talk about the very technical parts of
the bill. They have already done so, and I share their opinion.
I add that when they drafted our Constitution, the Fathers of Confederation
chose a bicameral system which gave a legislative role not only to the House of
Commons but also to our chamber, the Senate. Today, this is self-evident, a
truism, but it was questioned as recently as three weeks ago, before the Senate
Senator Prud'homme: Section 17.1 of the Constitution.
Senator Fox: Thank you, Senator Prud'homme. In the act which
established the Confederation, the Senate was given responsibility for reviewing
the work of the elected chamber, to create the best possible legislation, in the
interests of all Canadians. Since 1867, the constitutional conventions have been
recognized, and our parliamentary system now has the benefit of 140 years of
experience, if I may put it that way. In my opinion, our institution's
parliamentary responsibility has never been so denigrated as in the past month.
The Minister of Justice ought to be the protector of the Canadian
Constitution. Yet, he came to tell us, as I said earlier, that he did not intend
to respect the spirit of the supreme law of the land. As if that were not
enough, he referred to a motion introduced in the House of Commons on February
11, telling the Senate that the debate had to end by March 1.
Senator Prud'homme: Terrible!
Senator Fox: Honourable senators, in my opinion, this is unacceptable.
It is an affront to our democratic institutions and our traditions.
Honourable senators, my colleagues have raised or will be raising a number of
concerns during this debate. I would like to talk about two points in
particular: mandatory minimum sentences and the elimination of judges'
discretion to let the punishment fit the crime.
With regard to mandatory minimum sentences, I would like to give an example.
Senator St. Germain mentioned his experience in British Columbia with marijuana
I also had an experience, honourable senators, when I had other roles in a
previous government, which led me to visit the only federal prison for women at
the time, in Kingston. As minister responsible for that sector, I met with three
inmates there, young women between 21 and 23, who were serving minimum sentences
of seven years — and no one is condoning this — for crossing the border with a
small amount of marijuana. Under the provisions of our Criminal Code at the
time, the minimum sentence was seven years. I had received a letter from the
judge in charge of that case, after he handed down the sentence, in which he
said that it was appalling — and this is the second time today I have used that
word — to think that he had no latitude and no choice other than to sentence
these three young women, who should have been at Queen's University, not in the
Kingston prison. He said that if he had had a choice, considering the entire
case, the last thing in the world he would have done was to send them to prison
for seven years.
I want to use the argument by Senator Andreychuk, who, in response to Senator
Joyal, agreed that the Department of Justice itself says there is no evidence
that minimum sentences deter people from criminal activity. She said, "We could
not get information because no one collected statistics." If we do not know,
then we should instead follow the example of other countries, including England,
Australia and South Africa, which, in legislating minimum sentences established
what is called a permissible departure clause, which allows a judge to look at
the facts and decide whether or not, subject to appeal to higher courts,
applying the mandatory sentence is appropriate. With minimum sentences, no
latitude is given to the court. The court has no choice but to impose that
sentence, regardless of the situation.
We would have stood to gain by introducing this type of clause. It shows a
lack of confidence in Canadian judges to say that we are taking away from the
trial judge in every case any possibility of reducing the sentence.
Allow me to cite — perhaps Senator Joyal has already done so — a short
excerpt from the Criminal Lawyers Association position paper:
For example, in England when dealing with certain firearm offences,
judges are required to apply mandatory minimum sentences unless the court is
of the opinion that there are exceptional circumstances relating to the
offence or to the offender which justify its not doing so. Clauses of this
nature are also in use in Scotland, Australia and South Africa.
We are refusing to provide this type of latitude, which exists in some very
civilized countries, surely as civilized as ours, that certainly have as many
problems with crime as we do but where they nevertheless say, let us give judges
a certain amount of discretion when judging any individual's case.
Furthermore, most of the experts we heard explained that minimum sentences
are not a deterrent and that it is the fear of being caught red-handed that
makes criminals think twice about breaking the law. This provision seeks to put
citizens in jail without ever addressing the underlying reasons for committing
the crimes or the issue of the rehabilitation required to return them to society
after they have served their sentences.
The one thing I learned when I was Solicitor General in the 1970s is that
those who go to prison get out one day and if they are not given the means to
rehabilitate themselves, they will return to prison in short order. The bill
does not provide any measure to deal with that.
The government will increase the burden on the system and on Canadians
without having made an effort to consider other options focused on prevention
rather than incarceration.
I would like to quote from the presentation given by Elizabeth Fry Society
representatives, who spoke of the "three strikes you're out" system to which
Senator Joyal referred. They cited a study by the Rand Corporation — since
Senators Mahovlich and St. Germain have spoken about schools — which refers to
the California experience. I am convinced that Senator St. Germain, who stated
that he is not partisan in this debate, would accept the results of a study —
not one of our own — undertaken by the Rand Corporation, which has a great deal
of credibility. This study was conducted in 1996, following the entry into force
of the third strike provisions in California. It showed that the portion of the
government budget allocated to the correctional system had increased from 9 per
cent to 19 per cent and that, because of this increase, the government had to
reduce by 40 per cent its envelopes for essential resources such as education,
health, workplace safety and environmental and social services.
This proposal will have consequences. I agree with Professor Waller of the
Institute for the Prevention of Crime, who appeared before the committee and
concluded, among other things:
The Minister of Justice stated that Canadians have told us they want to
see action. I could not agree more, but what they are looking for is action
It is action that is evidence-based, not action taken out of the air to
try to meet some situation about which we all feel terrible and emotional,
that we regret or that we think ought to be punished. It has to be
evidence-based action. Otherwise, this is purely a smokescreen that will
eventually dissipate and Canadians have been comforted for a short time by
this type of legislation. Finally, we will see that this legislation does
Speaking of the minister, he told us that he had listened to what police
officers and provincial attorneys general had to say about Bill C-2. I am glad
that the minister is giving the viewpoints of the Association of Chiefs of
Police due consideration, and I recognize the very important work that police
forces do in our society. Nevertheless, I would like to know why he ignored
these same people when they told him to keep the gun registry because it is
working, and when they told him not to do away with the importer's
responsibility to identify weapons entering the country.
I would like him to listen to them on both of these issues. It is all very
well to make things illegal and punish people, but this bill completely ignores
Honourable senators, this bill's provisions will have a significant impact on
our legal and penal systems. It would have been prudent to include, at the very
least, a provision to study the effects of these amendments later on, but the
bill falls short there, too. We were within our rights to expect more than that
from a justice minister who told the Senate that the work was done well and was
in no need of improvement.
If the Senate had been allowed to do its work, if it had not had the
guillotine of a potential election ready to chop off our heads if we dared
propose amendments, we could have made this a better bill. I would like to think
that, working together, we could have made a bill that both sides of this house
could have actually supported. It would have been a better bill for Canada and
it would have been a better bill all around.
However, the government wanted its bill. The government did not want to hear
and act on evidence from those in the know. They wanted action and, in doing so,
they not only turned a deaf ear to any evidence brought forward by the experts
at our hearings but also came very close to going beyond the Constitution to
threaten the Senate should it dare make amendments to this legislation which we
all know is terribly flawed.
Yes, we are against any form of violent crime. I do not want anyone to tell
us, as they have, that if we propose amendments or delay this bill, it means we
support — and that is a bit of a stretch — sexual predators or violent crime.
Senator Prud'homme: That is ridiculous!
Senator Fox: I think that Senator Prud'homme, who spent a few hours
with the committee, although I will not make him tell us what he did not say,
was shocked to see this kind of thing.
Honourable senators, we had an opportunity to present an excellent bill. We
missed that opportunity. It turned into an attempt to silence our country's
Hon. Marcel Prud'homme: I wish to ask the honourable senator a
The Hon. the Speaker: Senator Fox will have to receive an extension on
his time as his 15 minutes has expired.
Hon. Gerald J. Comeau (Deputy Leader of the Government): Are you
asking for an extension?
Senator Fox: Yes.
Senator Comeau: No more than five minutes.
The Hon. the Speaker: Five more minutes.
Senator Prud'homme: Honourable senators, I do not understand why, just
because a person strongly opposes a bill, as I do, someone can put a gun to his
or her head. All honourable senators know my opinion on the matter. I cannot
accept the comments made by Minister Van Loan.
The minister told us that he is entitled to his opinion like any other
citizen. I did not react fast enough, but I could have risen and said, yes, it
is true that Mr. Van Loan is a citizen like everyone else; that he is entitled
to his opinions on the Senate, except that when he speaks, he is also a minister
of the Crown. As such, he speaks on behalf of the Crown. I was not quick enough
My only question here today, which is causing my dilemma, has to do with the
fact that I am against the bill, but I think it will be very difficult to vote
against it. Who will vote for or against it without going against the current
will of the government? It is a problem for others, I think, as much as it is
for me. But I do not know, since I do not belong to any of the political parties
of this place. Not to worry, I will speak to another bill tomorrow. I say this
to calm those who are worried about the leadership and who are watching me. Can
you help me in my dilemma? How can one be justifiably against it and not vote
because the House of Commons decided that we should give in? I have a very hard
time giving in, so you can imagine my predicament.
Senator Fox: I do not know if I can provide Senator Prud'homme with
the kind of answer he is looking for, but I think that right now, there is a
credible threat that this bill will be deemed a matter of confidence and will
trigger an election if we do not pass it. It is our duty to protest this way of
Senator Prud'homme has a great deal of international experience, but how will
he explain Canada's democratic institutions to people in other countries in
light of the fact that, despite our Constitution, which has been in place since
1867 and which confers certain powers on the Senate and the House of Commons, a
government can completely ignore those powers, say that the Senate does not
exist, and force the Senate to pass its bills? I think any senator would be hard
pressed to prove that we live in a democratic country that obeys its own
Senator Prud'homme: Honourable senators, I have one final
supplementary question. I hope that the government authorities over here count
the votes very carefully, because I have no qualms about telling everyone that
if there is a vote, I will vote against this bill. I suggest that you add up
your votes very carefully, because I do not want you to be taken by surprise. If
there is a vote, I will vote against the bill. Do the math with that in mind. I
cannot predict what will happen, because I was not in on the negotiations
between the two major parties.
Hon. Mobina S. B. Jaffer: Honourable senators, I also rise today to
speak on Bill C-2, An Act to amend the Criminal Code and to make consequential
amendments to other Acts.
The question of crime and punishment is at the very heart of life in a civil
community. It represents the most basic and profound responsibility entrusted to
parliamentarians. The definition of behaviour that is harmful to the community
and the creation of fair and effective sanctions are matters of first principle.
Without respected and respectable criminal sanctions, the order that is a
precondition for everything else we do as a society cannot be effectively
Honourable senators, the issue I address today is the question of mandatory
minimum sentences. There are already about 40 offences in the Criminal Code for
which a mandatory minimum sentence of imprisonment must be imposed. The
government would significantly expand the number of offences to which such
minimums would apply.
Let me say first that the Criminal Code provides a detailed set of sentencing
guidelines in section 718 to 718.2. It is interesting to return to them from
time to time, especially when a particular sentence comes to the attention of
the media or becomes the subject of comment by politicians.
Sections 718 states:
The fundamental purpose of sentencing is to contribute, along with crime
prevention initiatives, to respect for the law and the maintenance of a
just, peaceful and safe society by imposing just sanctions that have one or
more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the
(f) to promote a sense of responsibility in offenders, and
acknowledgment of the harm done to victims and to the community.
Section 718.1 states:
A sentence must be proportionate to the gravity of the offence and the
degree of responsibility of the offender.
These sections, honourable senators, are qualified in section 718.2, however,
by other principles the court is obliged to consider. Section 718.2(b) to
(e) read as follows:
(b) a sentence should be similar to sentences imposed on similar
offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence
should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less
restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are
reasonable in the circumstances should be considered for all offenders, with
particular attention to the circumstances of aboriginal offenders.
Honourable senators, I wish only to make this simple observation: Our law
respecting sentencing presently requires the courts to work upward from a
presumption that deprivation of liberty is to be avoided. Incarceration is the
last resort and not the first.
The philosophy reflected in the Criminal Code obliges the court to take a
temperate approach. It virtually guarantees that sentences will generally
reflect the least degree of punishment consistent with the overall principles of
sentencing. In line with this philosophy, the courts, in particular the
appellate courts who guide the trial courts, have articulated principles that
reserve the highest sanctions for the worst sort of offenders within any given
class of offence.
Mandatory minimum sentences run quite contrary to these principles which we,
as legislators, have prescribed. They take away the means by which courts do
justice in individual cases. They upset the presumptions set out in the
principles of sentencing and create a patchwork of exceptions that appear
arbitrary. "One size" never fits all human beings. This is not a cookie-cutter
approach. This is to have the effect of being arbitrary.
If Parliament wishes to modify the emphasis in sentencing, a far more
rational approach would be to modify the basic principles while leaving the
discretion to the judges to do justice in individual cases in light of those
Instead, the government proposes the crude mechanism of overriding the
existing sentencing principles for classes of offence that they have chosen.
This means that, instead of all offences being treated consistently and the
punishment fitting the crime, the crime defines the punishment, regardless of
whether it is fitting. This reduces the judicial role to nothing more than
reading aloud; in my opinion, to bean counting.
Honourable senators, our judges are not bean counters. I believe that we have
a highly-qualified judiciary, possibly the best in the world. One hears from
some quarters that it may be a good thing to reduce judicial discretion. The
implication is that judges are not hard enough on criminals. It is difficult to
see how judges can be faulted for following the guidelines that they have been
given. However, that guidance makes it absolutely clear that everything short of
imprisonment must be considered.
Apart from riddling the law with exceptions to established sentencing
principles, thus rendering the law contradictory if not incoherent, there are a
number of other serious drawbacks to mandatory minimum sentencing.
It is often said that one advantage of mandatory minimum sentences is firm
and consistent sentencing. In practice, however, the possibility of a mandatory
minimum sentence often results in charges being stayed or withdrawn, or a plea
negotiation to a different or lesser charge because prosecutors consider a
mandatory minimum to be too harsh. When this happens, decisions regarding
appropriate punishment are transferred from the judiciary to the Crown in a
process that is far less consistent and far less open to public scrutiny than
any exercise of judicial discretion.
It must be remembered that judges do their work in public and that their
decisions are subject to appeal. Honourable senators, that is not true of
discretion transferred to the Crown. In many cases as well, mandatory minimum
sentences give the accused no incentive to plead guilty, which inevitably
results in longer and more costly trials.
Needless to say, to the extent that mandatory minimum sentences lengthen
periods of incarceration, they also divert scarce public funds away from other,
in my view, more useful crime prevention and law enforcement initiatives.
There is significant evidence from other jurisdictions that mandatory minimum
sentences have had a disproportionate effect on minority groups. I reiterate
that the sentencing principles found at section 718.2 of the Criminal Code
require the court to consider that all available sanctions other than
imprisonment that are reasonable in the circumstances should be considered for
all offenders, with particular attention to the circumstances of Aboriginal
offenders. Mandatory minimum sentences completely negate these important
There is, moreover, no persuasive evidence that mandatory minimum sentences
are effective in deterring crime. Several jurisdictions, including Michigan and
the Northern Territory of Australia, have had negative experiences with
mandatory minimum sentences. The negative impacts include an unacceptably high
number of examples of fundamental unfairness, wrongful convictions and increased
incarceration rates for ethnic minorities, Aboriginal people and women. There
has been no discernible deterrent effect. Senator Cowan has already covered that
There are several studies by various government commissions in this country
to the effect that we already have problems with systemic racism and the
enforcement of our criminal law. Mandatory minimum sentences exacerbate these
trends and run directly contrary to the fundamental principles of sentencing I
All the available evidence suggests that mandatory minimum sentences are an
idea whose time has come and now gone. Public opinion polls universally show
that reflexive public support for such notions as three-strikes-you-are-out
sentencing dwindles when respondents are asked to consider the consequences in
Jurisdictions that have tried mandatory minimum sentencing are now repealing
or amending those punitive laws. Michigan, having tried mandatory minimums, has
moved back to flexible, judicially-tailored sentencing as a result of several
factors, including a shift in public opinion from strict sentencing as a result
of the attention attracted by widely publicized examples of excessive punishment
for minor repeat offences; and to a consensus among criminal justice
professionals that mandatory sentences tend to increase prison populations even
while crime rates are declining.
In brief, mandatory minimum sentences are yesterday's response to serious
crime. They have been tried and they have failed in jurisdictions not unlike our
own. There is no cogent evidence that they reduce crime rates. Such laws do
little to promote public confidence in the sentencing process because they too
often result in notorious sentences that appear manifestly harsh and oppressive.
Honourable senators, we should not repeat mistakes others have made before
us. We should, rather, learn from those mistakes.
In closing, I restate that the way to modify sentencing is to adjust the
principles of sentencing, if necessary. It is not to introduce a patchwork or a
mosaic of exceptions to our existing temperate principles, or to remove from
judges the ability to do justice in each individual case.
Mandatory minimums directly contradict the existing principles of sentencing
and inevitably and needlessly create injustice. They negate the very objectives
they purport to promote.
Senator Baker: Honourable senators, in the last two bills the Senate
has addressed in which we have been under time constraints, one of which was
imposed by a decision of the Supreme Court of Canada due to the eight-month
delay in introducing the bill and the three-and-a-half months it took in the
House of Commons. That left us with two-and-a-half weeks to deal with a bill
that dealt with the Charter of Rights and Freedoms.
We are now under another time restriction. After hearing witnesses, we have
been given three days in order to make amendments and to pass all the necessary
stages under our parliamentary rules for dealing with the bill adequately, as
the law dictates. The fact of the matter is, honourable senators, this gives us
no time to make amendments. It is physically impossible to meet those time
requirements and give the bill the judgment that it should be given.
Honourable senators, in times like this, it should be the House of Commons
that should be under the gun and not the Senate of Canada.
Some Hon. Senators: Hear, hear!
Senator Baker: As I passed Senator Grafstein's chair this afternoon, I
noticed that he had an argument drawn up to support a bill that he has
introduced in the house. The first quote that he has on his paper references a
Federal Court of Canada decision that highlights His Honour, Senator Andreychuk
and Senator Bryden.
What do these three people have in common? They were all members of a special
committee of the Senate that reported in 1999 on the security provisions in our
law, which was commonly referred to, I believe, as the Kelly report. The deputy
chair of the committee was Senator Bryden, and His Honour and Senator Andreychuk
sat on that committee.
Senator Segal: Hear, hear!
Senator Baker: That report is the most referenced report of any
parliamentary committee, including the House of Commons and the Senate. I
include the House of Commons in this reference but, to be quite honest, I did a
search one day through the electronic versions of how to access case law and I
could not find one House of Commons committee that was repeatedly referenced by
the courts in Canada.
Senator Segal: Shame!
Senator Comeau: Shame!
Senator Baker: However, there are many Senate committees. Senator
Grafstein was using this committee to support his argument. The Federal Court of
Canada said that the Senate Special Committee said that the definition of
"terrorism" is an ever-changing phenomenon. Lower on the page, Senator
Grafstein quotes the Supreme Court of Canada in Suresh, referencing the
committee again, because that was overturned by the Supreme Court of Canada.
Later, to buttress his argument, Senator Grafstein quotes the Supreme Court of
Canada as saying that, after examining the committee report, it is up to
Parliament to provide a more definitive or direct definition of "terrorism."
That is in the immigration legislation and, in their analysis, they applied it
to the Criminal Code as well. I note that Senator Grafstein then uses case law
from this year to show that it is being referenced today to ground decisions in
the Federal Court of Canada.
In a recent decision, Justice Rutherford, of the Ontario Superior Court of
Justice, struck down a section of the Criminal Code that another committee of
this place, chaired by Senator Smith, recommended that they could not put this
in the definition in the Criminal Code. The government did and now we have the
Ontario Superior Court of Justice striking it down.
About four months ago, their application for leave to appeal was refused by
the Supreme Court of Canada. Honourable senators, these references to committees
of the Senate are an indication of how closely our committees are followed by
Do honourable senators recall Mr. Richard Mosley, a rather famous bureaucrat,
a deputy minister, who was appointed a judge of the Federal Court of Canada? An
argument was put forward for his recusal. Why? Because the chair of the
committee, I presume Senator Smith, had referenced Mr. Mosley. I will read from
the Khawaja case. Mr. Greenspon's letter cites the chair of the Senate
committee having described the judge's role. Judge Mosley said that Bill C-36
was key in the drafting of the anti- terrorism bill. He said that Mr. Greenspon
asked, in consideration of the constitutional question before the court and the
circumstances and focus on the case, that the judge recuse himself from any
further hearing on the application.
Honourable senators can see how far this goes. Even what the chair says in
introducing a witness is addressed in some of these court decisions to have Mr.
Mosley recuse himself from the entire case. The court faced the question of
whether Senator Smith was correct or incorrect in what he said. The judge, of
course, ruled that he was incorrect and refused to recuse himself from the case.
I mention this to say that everything done by Senate committees is reflected
in our court decisions. It can be seen in case law on a daily basis, but you
cannot see this of committees of the House of Commons. I suppose there is a
logical reason — having spent 29 years in the House of Commons, I know well that
the House is a place of politics, not law-making. The Senate is a place of law-
making and it is here that we examine the government's proposed legislation. Our
courts and our lawyers go to the Senate to find out what the proposed
legislation means and the intent of the government and, at times, what is wrong
with the law and the defences that are available under legislation.
It is said that this is a place of sober second thought and that the Senate
must show deference to the lower chamber as the deciders of fact in that they
are elected just as the foundation of every quasi-judicial body in this country
has founded deference to the trier of fact. However, in these circumstances, the
House of Commons should, in the future, think twice before it puts this chamber
under the gun and does a great disservice to the law in this country.
Senator Grafstein: Honourable senators, I will be brief in touching
upon two points. One point raised by the Honourable Senator Joyal is the
question of the role of the Senate as it relates to constitutional matters.
There has been real and fair criticism that the courts have usurped
parliamentary responsibility in law-making, which is a valid point. However, it
is only made more valid if both Houses of Parliament decide that they cannot
deal with matters of constitutional complexity and are prepared to allow the
courts to deal with these matters.
On the one hand, it is inappropriate for us to criticize the courts for being
politically activist, which I have some question about because at times the
courts do not show the proper restraint, which surely was not the intent of Mr.
Trudeau when we passed the Charter. On the other hand, it is unfair for the
courts to say that we cannot deal with constitutional matters when we pass
legislation, perhaps on division, about which a majority of committee members
claim serious and substantive constitutional questions. We cannot have it both
Some senators will recall that when we rush to judgment, following Senator
Baker's point, we are always wrong. I refer to the terrorism bill and the
extradition bill. The latter passed all stages in the House in a day or so. It
came to the Senate and we were compelled by the leadership on this side — we
were the government at the time — to pass the bill. Senator Joyal and I took a
careful look at the bill and others joined us. Ultimately, we were compelled by
our leadership to pass the bill, but not after two or three months of debate in
this chamber to elucidate the issues. Senator Joyal and I decided that at third
reading, having opposed the bill at every stage because it was unconstitutional,
we would not appeal to the goodness and graciousness of this chamber but,
rather, that we would appeal to the Supreme Court of Canada. We couched our
arguments in a way that would deal with the Supreme Court of Canada. We sent the
relevant Hansard to the Supreme Court of Canada and, lo and behold, the Supreme
Court of Canada upheld our position and ruled that piece of legislation
unconstitutional because it allowed a Minister of Justice to return a Canadian
to a death state.
Here, we have a similar circumstance. We are now imposing on the courts to
correct the mistakes that this chamber makes. Those senators on the other side
that choose to do this, fine. That is their will, their right and their
privilege but it places the Senate in an invidious position of forcing the
courts to clean up the mess of Parliament when, on the face of the report, we
know that there are serious, substantive and egregious constitutional arguments.
I will not repeat the arguments of Senator Joyal, Senator Baker or Senator
Cowan; however, at the end of the day, beware, caveat emptor. This is the
wrong way to go. Many of us will hold our noses. Many of us will disappear. Many
of us will abstain. Some will vote against this bill, but I cannot believe there
will be one senator in this place that will leave the Senate feeling that his
hands are clean.
Hon. Tommy Banks: Honourable senators, I think there will be a vote
forthcoming. It will be very short; it might be a voice vote. I intend to vote
against this bill and wish to place that on the record. I do not know how anyone
sitting here having heard the arguments today and read the attachments could do
Hon. Charlie Watt: Honourable senators, Bill C-2 would amend the
Criminal Code in order to tackle violent crimes. To achieve this goal, the bill
provides new guidelines for detecting impaired drivers, raises the age of
consent for sexual activities, provides stiffer sentencing for repeat dangerous
offenders, provides mandatory minimum sentences for offenders, and reverses the
onus of proof when one is declared a dangerous offender.
Here are some concerns that emerged from the Senate committee hearings. The
effectiveness of Bill C-2 is based upon whether there are statistics and data to
support an amendment, either locally or internationally.
With respect to the constitutionality of reverse onus in the case of
dangerous offenders, if there are any impact studies on those proposed
amendments, no satisfactory answers have been provided to support those
concerns. On the contrary, many witnesses were skeptical and expressed doubt
that those amendments would in fact make a difference in tackling violent crime.
Many witnesses were of the opinion that Bill C-2 is not a panacea to reduce
crime. This goal must include education, information, communication,
campaigning, treatments, programs and rehabilitation.
What transpired from those hearings is that there are no rehabilitation
programs available in maximum-security prisons, and financial resources for
programs have been reduced by 26 per cent in the past year. There is an
additional problem for Aboriginal people: There are no specific programs adapted
to Aboriginal peoples taking into account their culture and traditions.
Honourable senators, I fully understand the complexity of this situation, but
I strongly believe that to adopt Bill C-2, without any substantive studies, data
or statistics backing it up, is not wise. Criminality is a serious matter, and
we have to act responsibly in order to ensure the safety of all Canadians.
Honourable senators, another important point that I want to bring to your
attention regarding Aboriginal peoples is this: At the hearings, it was stated
that Aboriginal people represent 21 per cent of the incarcerated population
across Canada. This is an impressive number. However, we cannot ignore the fact
that many Aboriginal people are not very familiar with the criminal justice
system, particularly Inuit people in the North. They do not even know that they
have the right to full defence and they do not know the consequences of pleading
guilty. There are no rehabilitation programs available to them, and, as I
mentioned before, financial resources have been reduced by 26 per cent in the
past year. In remote areas, financial resources are not available at all.
Honourable senators, I am very concerned about adopting Bill C-2. As we
already have a number of people incarcerated as repeat offenders, what will
happen to those people? Will they be considered dangerous offenders under Bill
C-2? We were told at the Standing Senate Committee on Legal and Constitutional
Affairs that, yes, they will be considered serious offenders and that this would
create a massive problem.
In my view, adopting Bill C-2 is not in the best interests of the public at
large. I, for one, will vote against this bill.
The Hon. the Speaker: Are honourable senators ready for the question?
Hon. Senators: Question!
The Hon. the Speaker: It is moved by the Honourable Senator Stratton,
seconded by the Honourable Senator Gustafson, that the bill be read the third
time now. Is it your pleasure, honourable senators, to adopt the motion?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Hon. the Speaker: The Chair has been asked to put the question
more formally, which I will do.
All those in favour of the motion will please say "yea."
Some Hon. Senators: Yea.
The Hon. the Speaker: All those opposed to the motion will please say
Some Hon. Senators: Nay.
The Hon. the Speaker: In my opinion, the "yeas" have it.
And two honourable senators having risen:
The Hon. the Speaker: Call in the senators.
Senator Stratton: Thirty-minute bell. There are committees sitting.
They are in the Victoria Building, so we will have to suspend committees and get
senators back here on time.
The Hon. the Speaker: The vote will take place at 5:40 p.m. Is it
agreed, honourable senators? Do the whips agree that the vote will take place at
Senator Stratton: Agreed.
The Hon. the Speaker: Call in the senators. Does the Chair have
permission to leave?
Hon. Senators: Agreed.
Motion adopted and bill read third time and passed, on the following
Hon. Leonard J. Gustafson moved second reading of Bill C-44, An Act to
amend the Agricultural Marketing Programs Act.
He said: Honourable senators, I am pleased to rise in support of the proposed
legislation. Our livestock producers across the country, the people who put meat
on our tables and produce 23 per cent of farm cash income receipts, need their
government to take action to help them get through the perfect storm that is
threatening their livelihoods.
Canadian livestock producers know their business. They are resilient. They
adapt to their economic environment and they are productive. These should be the
keys to ongoing success, but other factors have come into play.
Since 2003, cattle producers have had to cope with the fallout of the BSE
crisis and have also been hit with drought in some areas of the country. On
November 19, the industry received the long- awaited good news that the U.S.
border was opening to older cattle. This was also good news for our world-famous
genetics industry, which can, once again, gain access markets to the south. I
might say at this point that good breeding stock went both ways, both into
Canada and into the U.S., and did a great deal for the livestock industry.
However, as we know, a number of other pressures have come to bear. The rise
of the Canadian dollar has adversely affected the earnings of this export sector
of Canadian agriculture. Record high feed and input costs have increased the
cost of production, while the normal cycle of production and prices have
Honourable senators, this is a "perfect storm." The government, in fact,
all Ministers of Agriculture across Canada, have taken the situation facing our
livestock producers very seriously. They are determined to get help to the
livestock producers through existing programs quickly.
The Government of Canada has done the following to address the crisis: First,
the new AgriInvest program is delivering $600 million in federal funding to
kick-start producer accounts. These payments are now being made to our
producers. These accounts will help farmers weather small drops of cash flow.
The government will make more help available with interim payments and
targeted advances under AgriStability, the new margin-based program.
AgriStability includes many improvements requested by the livestock sector such
as border eligibility criteria for negative margin coverage; the Targeted
Advance Payment mechanism to respond to disaster situations; and a better method
of valuing inventories.
Together, these changes are helping to ensure the program is more responsible
to losses in the livestock sector. This is real action to give the livestock
industry some of the help that is needed.
Targeted Advance Payments have already been triggered for hog producers in
Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick and Nova Scotia.
Interim payments are available for those who are not eligible for the TAP
payment. We all know that producers have to be able to access the program
payments in a timely fashion. That is why the government is fast-tracking
deliveries of payments through existing programs.
The Minister of Agriculture and Agri-Food is working with the provinces to
fast track payments for the 2008 AgriStability TAP payments, the 2008 interim
payments and 2007 final payments. In fact, from late 2007 through 2008, nearly
$1.5 billion in cash payments are expected to flow to the livestock producers
through existing and new programs.
Honourable senators, the bill we have before us today is about enhancing the
Advance Payments Program under the Agricultural Marketing Program Act. Those
enhancements will provide real help for producers by removing the BRM security
requirements for livestock producers so they may use their animals as collateral
to access advance payments of up to $400,000 — a major move for the industry —
and by increasing the amount of the emergency advance available for situations
causing severe economic hardship. The increase will be from $25,000 to $400,000,
$100,000 of that which will be interest free.
In addition to this legislation, this government is also investing $50
million in the Cull Breeding Swine Program to provide a per- head payment for
each animal, plus a reimbursement to cover the slaughter and disposal costs.
These measures will help to restructure the industry and make it more
As well, the government will work with industry and review meat inspection
user fees to assess their impact on competitiveness in the sector.
The Government of Canada is also working to reduce costs and increase
competitiveness under Canada's enhancement feed ban. One of the biggest problems
faced by producers is the increase in price for feed while prices for their
livestock have gone down. This complements the federal government's commitment
of $80 million to help the industry adjust to new feed standards.
Honourable senators, there is no doubt that the livestock sector is in
difficulty. Amending the Advance Payments Program under the Agricultural
Marketing Program Act is one tool that will help livestock producers weather the
storm. The Cull Breeding Swine Program is another. It will assist hog producers
in dealing with current pressures and in preparing for the future.
On the theme of preparing for the future, government and industry have also
been working together to identify ways to help industry position itself to be
competitive in the long term, including increasing pork and beef sales abroad
and bringing innovative feed grain inputs and products to market more rapidly.
Honourable senators, in rising to support this bill, I have given you a
snapshot of the problems facing the industry and the decisive steps this
government has taken to help our livestock producers get through a very rough
period. The legislation before us is an important part of a comprehensive
strategy that will provide assistance in the short term and help hog producers
plan for the future.
Honourable senators, I urge you to pass Bill C-44 and demonstrate your full
and immediate support for this struggling industry.
Hon. Robert W. Peterson: Honourable senators, I am pleased to rise
today to speak in favour of Bill C-44, an Act to Amend the Agricultural
Marketing Programs Act and ask for your support.
On November 27 of last year, the Canadian Pork Council appeared before the
Standing Senate Committee on Agriculture and Forestry. They advised us of the
"perfect storm" facing hog producers in the form of high feed costs, low hog
prices and a rapidly rising dollar. We were told that losses per pig are now
exceeding $50 per head. Thus, a 500-sow operation is losing over $25,000 per
month. Trade credit is at the limit, operating credit from financial
institutions is no longer available, equity is disappearing and there is growing
desperation in rural Canada.
Canadian hog producers need time to adjust and assess their options. Without
some form of interim financial support, the industry faces certain collapse.
Many of the best and most efficient operations are thinking of calling it a day,
hoping to exit with some pride before they are forced into bankruptcy.
Bill C-44 amends the Agricultural Producers Marketing Act to improve cash
advances for livestock producers. While these changes may not address all the
concerns of livestock producers, they will provide useful tools to them to help
through the current crisis.
This is not a time for words; it is a time for action. I urge honourable
senators to join with me in supporting this legislation.
The Hon. the Speaker: Honourable senators, is it your pleasure to
adopt the motion?