Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 15 - Evidence, October 7, 2009
OTTAWA, Wednesday, October 7, 2009
The Standing Committee on Legal and Constitutional Affairs met this day at 4:09 p.m. to consider Bill C-25, an Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody).
Senator Joan Fraser (Chair) in the chair.
[Translation]
The Chair: We continue our study of Bill C-25, an Act to amend the Criminal Code.
As you all know, on our agenda is the clause-by-clause study of the bill. However, I would like to point out two things before we begin.
[English]
Since our last meeting, two further written submissions have been received and have been circulated to committee members. They are from the Honourable Chris Bentley, Attorney General, Ontario; and from Ms. Deborah Hatch, President of the Criminal Trial Lawyers Association of Alberta. I believe all members of the committee have received those. I would further draw to your attention that we have with us, although not at the table at the moment, Ms. Catherine Kane, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada. She is here to answer any questions that committee members might wish to ask, to assist us in our deliberations.
Before we proceed to clause-by-clause consideration of the bill, are there questions that any committee members wish to put to Ms. Hatch? If so, I invite her to come forward.
Senator Angus: Will she be available to answer questions throughout the meeting?
The Chair: Yes.
Senator Nolin: Is it possible to have Ms. Kane sit at the table to assist us through clause-by-clause if need be?
The Chair: Certainly, we can do that because she is here to help us in our work if we so desire. Ms. Kane, please join us. You are well familiar with this committee, Ms. Kane.
Very well.
Is it agreed, senators, that the committee proceed to clause-by-clause consideration of Bill C-25, An Act to amend the Criminal Code (limiting credit for time spent in pre-sentencing custody)?
Hon. Senators: Agreed.
The Chair: Shall the title stand postponed?
Some Hon. Senators: Agreed.
The Chair: It is agreed. Shall clause 1 carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Shall clause 2 carry?
Senator Baker: Madam Chair, I have two amendments that I intend to put forward to this proposed legislation. One deals with clause 2 and the other deals with clause 3. I would ask the clerk to distribute the proposed amendment.
The Chair: We will proceed first to your proposed amendment for clause 2. We will do them in order after the amendment has been distributed, Senator Baker.
Senator Nolin: Is it possible to give Ms. Kane a copy?
The Chair: Of course.
Senators, you will find French on one side and English on the other side.
Senator Baker: I move:
That Bill C-25 be amended in clause 2, at page 1
by replacing lines 10 and 11 with the following:
``orders that the accused be detained in custody on the basis of one or more grounds set out in subsection 10 primarily because of evidence of a previous conviction of''.
If I may explain, the words ``on the basis of one or more grounds set out in subsection 10'' are proposed because of the testimony given to this committee by three professors of law and also because of the references made by the representatives of the Crown Attorneys Association and the Defence Lawyers Association. Currently, section 515(10) of the Criminal Code provides the first, second and tertiary grounds for bail. Bill C-25 proposes a new requirement for a judge to determine whether the decision on remand is being made primarily because of evidence of a previous conviction. In other words, someone's previous criminal record is the major determining factor of the refusal of bail.
Section 515 determines whether a person is granted bail. All of the experts said that those are the three determining factors in the Criminal Code as to whether someone is granted bail, and that is the determination upon which a judge must give his or her reasons. Bill C-25 proposes another duty of the judge: To state whether a person's record, which may not even be referenced in the reasons for denying bail, is the primary reason for denying bail. As we all know, under the Criminal Code, that is not a condition of denying bail today.
My amendment would keep the requirement of the judge to determine whether it is the primary reason for denying bail. However, it would place it within one of the three existing categories established in the Criminal Code for making that determination.
I will take any questions on this proposed amendment.
Senator Nolin: Under the Code as it is written, the judge must go through paragraph 10 to find reason not to grant bail. Is that right?
Senator Baker: Yes.
Senator Nolin: Why do we add that?
Senator Baker: Currently under the Criminal Code, a judge does not have to consider whether he is denying bail primarily because of someone's criminal record. Senator Nolin, you are absolutely correct in suggesting that that decision normally is referenced in consideration of the first ground — whether someone will show up in court; and the second ground — whether someone will recommit a criminal offence. You are absolutely right. The professors suggested that the bill would require a judge to consider something extraneous to the considerations for bail under the Code. Therefore, if we keep the proposed provision, we should ensure it is made within the three determinations that exist in the Criminal Code. At times, that is done, which you pointed out.
Senator Nolin: I do not understand what this amendment would add to the Code as it is written.
Senator Baker: With apologies, I did not understand your original question.
Senator Nolin: A judge must consider one of those three paragraphs in the Code to determine a reason to grant bail.
Senator Baker: Yes. Normally a judge will say that the third paragraph does not apply.
Senator Nolin: The third paragraph provides a judge with greater discretion to build an argument against granting bail.
Senator Baker: Yes.
Senator Nolin: Bill C-25 proposes instructing the judge to write the reason for his or her decision to not grant bail if that reason is a previous incarceration. You are not against this proposed instruction to the judge but you want to add something that I think is not needed. Perhaps Ms. Kane would speak to this.
Senator Baker: We heard witnesses before the committee who said that clause 2 in Bill C-25 will complicate the bail process because the Crown and the defence attorneys will not only have to answer those three provisions when the Crown is trying to keep someone in jail or the defence attorneys are trying to get him out on bail. This clause would mean that they would have a fourth consideration completely separate and apart from the existing three in the Code. Our witnesses suggested that the fourth consideration could lead to one contradicting the other, or one extraneous provision to be determined separately from the other three. Currently, a judge must consider the existing three. ``Shall consider'' is in the Code.
The Crowns and the defence attorneys said that this will lead to whole new arguments. Why should we have to do this when normally we do it under the three provisions? It would lead to appeals based on the primary reason not being included in the three that you can consider. It is to relieve a complexity that they claim it will create.
The Chair: Senator Nolin asked to hear from Ms. Kane. Senator Wallace is also on the list.
Ms. Kane: First, there is no intention in this clause to add a new ground for bail. The grounds for bail are those that are set out in subsection 515(10). The courts are quite familiar with applying those three grounds for bail.
However, as you noted, Senator Baker, often the reason the primary or the secondary ground applies is the offender's previous record. It is subsumed in either the primary or secondary ground usually, not so much the third. The person's record is the reason, bail should not be granted and the accused should not be released.
The accused's criminal record may not be the only reason under the primary or secondary ground, but if that is the case, this provision requires that that be put on the record. Later, if that person is convicted, at sentencing, there would be that record kept, indicating that is why they were denied bail, and that would bring in the one-to-one ratio for credit for time served.
This is ground-laying for limiting the credit at one to one. There are two reasons for the limit: Where the accused has been denied bail because of previous convictions, or because of breach of current bail conditions. The latter is already covered in the Criminal Code in terms of being noted on the record. The proposed new requirement is to ensure that the former is also there when the sentencing judge ultimately gets to sentence.
Just to reiterate, there is no intention to add a fourth ground for bail. I read the transcripts of that testimony and was quite surprised that it would be interpreted in that way. It is only to get that on the record in the context of the existing grounds for bail under section 515(10).
The Chair: Is that sufficient, Senator Nolin?
Senator Nolin: Yes.
Senator Wallace: Ms. Kane has zeroed in on the point I was about to raise. Senator Baker, when I look at your proposed amendment and compare it to the existing clause 2 of the bill, the only difference is that you have added the words ``on the basis of one or more grounds set out in subsection 10''.
Senator Baker: Yes.
Senator Wallace: You added those words to, I suppose, make it clear that the provision of clause 2 dovetails back into section 515(10).
Senator Baker: Yes.
Senator Wallace: That being the case, at this point I will be, for the most part, repeating what Ms. Kane said. As I read clause 2 in the bill, it does not purport to amend section 515(10), nor could it unless there were a specific reference. That being the case, clause 2 adds a requirement for the court if the bail is refused under section 515(10) primarily because of a previous conviction. That would mean, for example, in 515(10), that bail is refused because a judge felt it necessary to ensure his or her attendance in court. You would ask, ``Well, what would raise that concern?'' If the concern to the judge rose from the fact of a previous conviction, the bill would want that noted.
Similarly, in 515(10) (b), if the refusal to grant bail were because a judge felt it necessary for the protection of public safety, which is a rather broad statement, the secondary ground, and the basis of that was the previous conviction or previous record, then we would want that noted. It would be the same with respect to the tertiary ground in 515(10)(c), if bail were refused because a judge felt it was required to maintain confidence in the administration of justice, again, that is pretty broad.
The purpose of the bill, as I read it, would be to require a judge to refer to the fact that that protection or maintaining that confidence in the administration of justice arises from the previous conviction. That goes back to one of the fundamental purposes of Bill C-25, which is to add more certainty and clarity to the existing sentencing provisions so it is understood why judges reacted in the way they did. I believe, and I think this is supported by Ms. Kane, that clause 2 does just that. It provides additional clarity in regards to 515(10) and does not and could not amend it.
The Chair: Do any other senators wish to comment?
Senator Angus: I would simply add that I personally will oppose this amendment not only because of the explanation we have received from Ms. Kane, but also because one of the objects of our study is to improve things if we feel there are errors or it is misleading. I believe proceeding with this amendment would just add more confusion rather than provide clarity. I actually found it very confusing when I read it. I do not think it adds anything and, if anything, it detracts from the bill.
The Chair: Senator Baker, do you have a brief response?
Senator Baker: It is difficult to keep it brief, but I will try to do so. Ms. Kane said, she read the transcript and realized that the experts we had before the committee noted this problem or confusion. The defence lawyers and the Crown attorneys also referenced it. In their minds, it creates a new problem. It establishes a new standard apart from 515(10) (a), (b) and (c) that are the standard considerations for bail.
I would simply say, in answer to Senator Wallace and Senator Angus, that we are not taking this requirement out of this bill. We are simply transposing it into the place it should be, and that is within 515(10), which is where the code outlines the grounds for consideration whether or not to grant bail.
The Chair: That was brief.
Senator Baker: I could go on.
Senator Angus: We know.
The Chair: Senators, it has been moved by Senator Baker that Bill C-25 be amended in clause 2, on page 1, by replacing lines 10 and 11 with the following:
[Translation]
``paix, pour un ou plusieurs des motifs prévus au paragraphe (10), ordonne la détention sous garde du prévenu principalement en raison d'une preuve de condamnation antérieure, il est tenu d'inscrire cette raison''.
[English]
In English, it would be:
``orders that the accused be detained in custody on the basis of one or more grounds set out in subsection 10 primarily because of evidence of a previous conviction of''.
Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: All those in favour will please say ``yea''.
Some Hon. Senators: Yea.
The Chair: Opposed?
Some Hon. Senators: Nay.
The Chair: In my opinion, the ``yeas'' have it.
Abstentions?
Senator Wallace: I wish a recorded vote.
The Chair: The clerk will call the roll of member's names, beginning with the chair, who will not vote, then going in alphabetical order. Senators should verbally indicate whether they vote for, against or abstain. The clerk will announce the results of the vote, and I shall declare whether the motion is carried or defeated.
Jessica Richardson, Clerk of the Committee: The Honourable Senator Fraser.
The Chair: I am not voting.
Ms. Richardson: The Honourable Senator Angus.
Senator Angus: Against.
Ms. Richardson: The Honourable Senator Baker.
Senator Baker: For.
Ms. Richardson: The Honourable Senator Campbell.
Senator Campbell: For.
Ms. Richardson: The Honourable Senator Carignan.
Senator Carignan: Against.
Ms. Richardson: The Honourable Senator Chaput.
Senator Chaput: For.
Ms. Richardson: The Honourable Senator Joyal.
Senator Joyal: For.
Ms. Richardson: The Honourable Senator Milne.
Senator Milne: For.
Ms. Richardson: The Honourable Senator Nolin.
Senator Nolin: Against.
Ms. Richardson: The Honourable Senator Rivest.
Senator Rivest: Against.
Ms. Richardson: The Honourable Senator Wallace.
Senator Wallace: Against.
Ms. Richardson: The Honourable Senator Watt.
Senator Watt: For.
Ms. Richardson: Six for and five against.
The Chair: I declare the amendment carried.
The Chair: Shall clause 2, as amended, carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
The Chair: On division. Abstentions?
Carried.
Shall clause 3 carry?
Senator Baker: I have an amendment on clause 3. This is the amendment that I had spoken about before. It is because the bill contains a provision that allows a judge to put someone in jail and not tell the person of a portion of the sentence or why the person is there.
The Chair: I think you are heading for an amendment to the last subsection.
Senator Baker: Yes, lines 14 and 15, sorry.
The Chair: I am trying to take things in chronological order, in case anyone has an amendment to come earlier.
Senator Baker: It is a long section.
The Chair: Does anyone have an amendment to be proposed?
Senator Joyal: I do.
The Chair: We will not forget you, Senator Baker.
Senator Baker: Thank you.
The Chair: The clerk will distribute this one. This is Senator Baker's amendment, which will be held in abeyance until we conclude with Senator Joyal's proposal for an amendment.
Might I have a copy of the amendment?
Senator Joyal: I move:
That Bill C-25 be amended in clause 3 on page 1
(a) by replacing line 21 with the following:
``to a maximum of one and one and a half days for each day spent in'';
(b) by replacing line 24 and 25 with the following:
``stances justify it. The maximum is two days for each day spent in custody unless''.
The Chair: Will you explain that proposal, Senator Joyal?
Senator Joyal: It is a plain amendment in that it establishes one for one and a half and caps the maximum of credit to two days. Essentially, that is the purpose of the amendment.
The reason is that the first amendment recognizes the state of the jurisprudence at the Supreme Court of Canada level in the decision of Wust of 2000; in the Court of Appeal of Quebec in 2005; and in the Courts of Appeal of Manitoba and of Alberta in 2005. It recognizes that detention in remand is not at all equivalent to detention after sentencing for two main reasons. The first is that when one is in remand, one is in a harsher condition, as the Supreme Court of Canada recognized and as all the courts of appeal in Canada that have ruled on it recently have recognized. The second is that there is no remission mechanism according to the Corrections and Conditional Release Act that applies when one is in remand.
In other words, the time one serves in remand is harsher generally than when one serves it after sentencing.
If you establish one for one, you put on the same footing two different times served, which are not equivalent at all. One does not allow you to benefit from programs and from remission mechanisms that are essential according to the Corrections and Conditional Release Act, while when you are serving after sentencing, you benefit from those two elements. By establishing one for one and a half, you rebalance the time that you have been in remand and the time you serve for your sentence.
The second amendment proposes a cap of two. I agree there should be a cap but that cap should be in such special conditions that the judge would have to justify it. A cap of two is reasonable, again according to the jurisprudence as stated in the Court of Appeal in Quebec in the case of Beauchamps. The two-to-one ratio, according to the judge in paragraph 42, cannot be considered an advantage for the accused. In other words, the credit is not an advantage; the credit is establishing a balance, an equivalence between the time served and the time serving the sentence. As the court said, dead time is real time. In other words, by capping it at two, we are just recognizing the state of jurisprudence and establishing it as a maximum. Of course, as with the other provisions of the act, you have to justify it in writing and so on.
With the witnesses that we have heard, and especially with the risk of a constitutional challenge under the Charter on one for one, as has been explained by at least three witnesses, this proposal ensures that the bill is sound and would meet the test of constitutionality that many lawyers who have appeared as witnesses have raised as a possibility with the bill as drafted.
[Translation]
Senator Nolin: I have a question for Senator Joyal. I want assurances that your amendment does not erode in any way the judge's discretion not to credit any time served if he so wishes.
Senator Joyal: Absolutely not.
Senator Nolin: All you are asking for is to have the one for one rule, the basic rule in the bill, replaced with a rule of one and a half for one. That would be the new basic rule.
Senator Joyal: That is correct. Based on the evidence provided to him, a judge, if convinced that an accused benefited from especially favourable conditions during his remand time, would not be obligated to establish one for one credit. The amendment in no way diminishes the judge's discretion to establish one for one credit instead of one and a half for one.
That explains why, in some of the decisions cited to the committee, the court provided one for one credit under certain special circumstances. It is generally known that favourable conditions are not the norm. As a rule, remand conditions are much more difficult and an offender cannot accumulate time that could count toward parole.
Senator Nolin: Last week, we heard from two provincial attorneys general who raised similar questions about the quality of the time spent by offenders in pre-trial or pre-sentencing custody. These provincial ministers and the federal minister appear to have weighed the pros and cons of a position similar to yours and to have rejected it. You seem to disagree with their stance.
Senator Joyal: Especially in light of the uprising last weekend at the Brandon correctional facility in Winnipeg. This facility houses 240 inmates, 90 more than the recommended capacity. The uprising or riot was caused by overcrowding at the facility, according to the newspaper reports.
Despite the testimony of an attorney general to the effect that conditions had improved considerably, two days later, the uprising unfortunately proved that this was not the case at all detention centres in Manitoba.
I cannot recall specifically at which ones, but at certain facilities in Manitoba, conditions have improved. If that is the case, the court could reduce the credit from one and a half to one or even to one and one quarter. However, in light of the findings of the officials who inspected Canada's correctional facilities, we cannot be satisfied that the situation in our country's prisons is stable.
On the contrary, according to reports received during the last three months of 2008, three inmates have died as a result of uprisings or difficult conditions in correctional facilities.
Consequently, I do not think that the testimony we heard is indicative of conditions overall. The committee also heard from the Attorney General of Alberta. If you read the letter submitted by the Association of Defence and Trial Attorneys of Alberta, you will see that it raises some very serious questions further to the Alberta Court of Appeal's decision in Chan, a ruling that Alberta's Attorney General deemed unacceptable.
So then, on reading the brief submitted to the committee chair on the special circumstances of this court decision as well as the actual court decision, we come to a rather different conclusion than the one reached by the Attorney General of Alberta. We were not able to question him at length on this matter.
[English]
Senator Angus: Honourable senators, the Government of Canada, as represented by Justice Minister Rob Nicholson, was well aware of the state of the jurisprudence when the bill was drafted. The government was also well aware of the deplorable state of conditions in many remand centres, as we have been told. Notwithstanding that, the policy of the government is reflected in the language of this bill. The minister has reaffirmed that it is his policy. The bill was adopted unanimously in the other place and approved in principle in the Senate.
Senator Joyal, you know better than I do, and I have been here 16.5 years, that there have been many times when we might wish the proposed law were different than the one put forward. It is not our job to amend bills to make them read the way we wish they would read, or that some would wish them to read. Bills are introduced to improve bad law. We are not to go against the substance as passed in the memorandum to cabinet and in the legislation as drawn.
I have listened carefully to most of the evidence and I have read the testimony of the witnesses before committee last week. I have problems with amending bills when the proposed amendments go against the substance. Technical changes are fine to make the bills clearer and to fix errors, not changes for sociological reasons that could easily be made by the government if it wanted to. The government has had the opportunity to do so.
[Translation]
The government, fully mindful of the situation in detention centres and fully aware of the current state of jurisprudence —
[English]
— and is fully aware of what is going on in the United States and other jurisdictions. We have heard that evidence. On those grounds and in an effort to be totally objective, if we were to support the amendment of Senator Joyal, we would clearly be changing the substance of the bill. I will vote against it, as I hope all senators will.
Senator Campbell: No.
The Chair: Senator Angus' intervention raises questions of a various nature. I will simply address the procedural issue of whether this amendment is beyond the scope of Bill C-25 as approved in principle by the Senate at second reading. I do not believe it is. I believe that the principle of this section of the bill is to impose a maximum on the discretion that a judge may exercise in awarding credit for pre-sentence custody. That principle remains in this proposed amendment. Whether senators believe that the proposed amendment is appropriate is another question. I believe, Senator Angus, that this is procedurally acceptable.
Senator Angus: We have a disagreement, Madam Chair, but that will not be the first or the last time.
[Translation]
Senator Carignan: I have not served on this committee for very long, but nevertheless I have had the opportunity to listen to the testimony of provincial ministers. I have also read some of the other testimony presented, as well as reviewed the jurisprudence concerning certain Criminal Code provisions, in particular the ones now before the committee.
I think we need to act in concert with the provinces. The provincial ministers of justice have identified a serious problem, one of public perception and trust in the justice system.
It is fundamentally important that the general public have confidence in the judicial system. As it is now worded, this legislative provision poses a serious problem for the justice ministers and for the operation of the provincial justice system. It also undermines the public's trust in the justice system. The public believes that criminals have more rights than non criminals. What we are hearing is that this provision has a perverse effect. Some criminals will try and use the two for one rule for their own benefit. Therefore, I think some caution is in order. We must not be naïve and get caught up in the game played by criminals and gangs. We hear about criminals who instruct their lawyers to put off entering a guilty plea on their behalf so that they can benefit from two for one credit, which leads me to believe that some people are playing the system. This certainly was not what the Criminal Code had in mind when it granted the court some discretion to credit time spent in pre-sentencing custody.
I think we need to be aware of this and not get caught up in the game being played by gangs and people taking advantage of the system. It is important to foster trust in the justice system and to send out a clear message that a day spent in custody is equivalent to a day spent in prison.
The ministers of justice testified that remand conditions had improved and that the two for one credit had another perverse effect. We also heard that remand conditions were deteriorating because of overcrowding. However, the two for one credit was responsible for the overcrowding problem because offenders were using it to shave some time off their prison sentence.
So then, we are seeing a perverse effect, in addition to the two for one credit. If we adopt the amendment, we will continue to see this perverse effect. We deplore the overcrowding and the poor conditions associated with it, but by providing two for one credit, we are contributing to overcrowding in correctional facilities. The second perverse effect is systemic.
It is always a sensitive point for me because I am a staunch defender of fundamental freedoms. Arguments of this nature always affect me. However, if we look at all of the world's major democracies, we see that few provide two for one credit. Most of the time, they provide one for one credit. And in many cases, the credit established is less than one for one.
I am convinced that given the current jurisprudence and section 7 of the Charter, if we were to do away completely with credit for time spent in pre-sentencing custody, such a move would likely violate the principle of fundamental justice. However, providing one for one credit would clearly not violate that principle. And if it did constitute a violation, I think it is justifiable in a free and democratic society.
I think a limit of one and one half would be reasonable. It allows a judge some discretion to work within a range of zero and one and one half. It clearly gives him enough latitude to provide credit of one and one half for one when special circumstances warrant. However, the public is not prepared to accept up to two for one, or even one and one half for one, as the standard. For all of these reasons, I cannot support the amendment.
The Chair: Thank you, Senator Carignan. It is rather unusual, honourable senators, for us to engage in such lengthy discussions during clause-by-clause consideration of a bill. However, I felt that it was appropriate in this instance to allow a little more leeway since from a practical standpoint, we are dealing with a short bill. In addition, the bill involves some basic principles of interest to everyone.
Nevertheless, without wanting to restrict anyone's freedom of expression, I would ask honourable senators to express their views and opinions as concisely as possible.
[English]
Senator Wallace: I will be brief with my opening comment. I cannot support Senator Joyal's amendment. I think of how we got to where we are today and how this bill has progressed to this point. It has arisen as a result of the existing section of the code, section 719(3), which says that a court, in determining the sentence, may take into account any time spent in custody. As we know, it has absolutely no limits on it. I believe it is within the prerogative of legislators to define the parameters around any legislation. It is completely within our right and responsibility, where we consider it appropriate, to define those parameters.
We have heard from the evidence presented to this committee that the courts have routinely, if not automatically, provided two for one credit in final sentencing, in relation to the remand time. In some cases, it has been three to one. There has been a feeling in the public and among many of us that the sentences were not reflecting the severity of the crime. Sentences, as a result of that, were not reflecting the principles of sentencing, namely, that they deal in an appropriate way with denouncing criminal activity, act as a deterrent in the future and provide protection to the public. As a result, there is a feeling, widespread among the public, and we heard this in all of the evidence from the provincial ministers and otherwise, that public confidence in the judicial system has suffered.
We have heard evidence directly from the Attorneys General of Alberta and Manitoba, and we had written submissions from nearly every other province, saying just that and imploring us, the Senate, to move ahead and approve Bill C-25 in its present form.
What I heard from the evidence presented to this committee was that those Attorneys General wanted to improve the safety and security of their citizens and felt that the section, as currently written, was not providing that safety and security and was undermining the credibility and integrity of the justice system.
We also heard that the two for one credit was resulting in the courts becoming clogged. They were finding that accused were delaying the entering of sentences and making elections as to trial in order to build up two for one credit. We heard that from the Attorneys General of many of the problems. We heard it from James Chaffe, the President of the Crown Council Association. That is not opinion; that is evidence.
We have heard that the two for one credit may have been justifiable at one time, but times have changed. Conditions in remand have improved. We heard that directly from Manitoba's Justice Minister, David Chomiak, and it was referenced in a number of the letters from the other Attorneys General.
The Chair: Senator Campbell, may I ask you to wind up? I should say, Senator Wallace.
Senator Wallace: As a result of that, and as a result of looking at what other jurisdictions have done, both the United States and the Commonwealth, it was felt that a one to one base properly reflected the principle of law. However, if there were circumstances that justified it, that could be extended to one and a half. As Senator Joyal points out, there may be some detention conditions that are not as good as others, and the courts must have that discretion. Bill C-25 provides that discretion and latitude.
Senator Joyal has referred to what could be seen as an inconsistency when considered in the context of parole and remission and how that time is determined. As we heard from Minister Nicholson, it is recognized that changes are required and will be made to the parole system.
I would strongly suggest to you that to build on the base of a parole system that is flawed by amending or extending Bill C-25 would be absolutely the wrong thing to do.
Bill C-25, I believe, represents the proper principle, the principle that has been accepted and requested by the provinces and the territories.
Finally, you referred to defence lawyers who appeared before us and raised their arguments. They are representing the accused and the convicted, and that is only understandable. They will look for changes that will satisfy their clients as best they can. We understand that, but I think we have to take all of those comments into the context of what we have heard from the Attorneys General of the provinces and the territories. Their consideration of this whole issue was not one that arose over a couple of weeks. They have been considering this for years. I believe that their approach to it is correct and that is reflected in Bill C-25.
I would support Bill C-125 in its present form.
The Chair: My apologies for both you and Senator Campbell for getting my Scottish names confused. I am sure Senator Angus will sympathize.
Senator Campbell: Part of the issue arises from a comment that Senator Wallace just made, that the defence counsel represent the accused and the convicted. That is not true. The defence represent the accused, the convicted and the acquitted. I think we are losing sight of this.
This bill is based on urban myth, out-of-date statistics, anecdotal data without any proof, and lack of accountability. Of course, the Attorneys General say everything is fine in their remand centres. Do you expect them to come here and say, ``We are running community centres?'' We know time and again that is not true. Try out the Don Jail some day. Try out any of these remand centres.
To Senator Carignan, I say that there was some evidence presented early on about the urban myth we continue to hear, that people want to be in remand because they get two for one. Statistically and mathematically, we know that they are going to serve more time than a person convicted of the same offence who is out on bail. That is a fact of life. We keep saying, ``Oh, put me in a hole and I will get a deal.'' It does not happen. You serve more time.
The most disturbing fact is that there is no evidence that this bill will either make us safer or deal with the inequities in the system. As for the public perception, that is driven by these urban myths. The public perception is driven by the Attorney General coming before us and repeating these urban myths time and time again.
I support the alternative put forward by Senator Joyal. In fact, if we review our notes, the Attorneys General wanted 1.5 for one. That is what they asked for. We are doing nothing to change that. We are simply taking a look at it and saying, ``Let us go forward.'' It was suggested that we would wait for the Attorney General of Canada to change the parole system to make it different. Change the parole system and then come back to us and we will deal with this.
I support Senator Joyal's amendment. Last but not least, I completely disagree with Senator Angus. Our job is to be the sober second thought on these bills. I am aware that the Liberals voted for this bill. I am aware that they expedited it. I believe they are wrong. I believe that we have a duty to review this bill.
The Chair: You refer to the Liberals in the House of Commons, Senator Campbell.
Senator Campbell: Yes.
[Translation]
Senator Rivest: I am mindful of my colleagues' arguments about the public's trust in our judicial system and the fact that this poses a serious problem. However, as parliamentarians, you will agree that if there is a serious issue with credibility, the government has a duty to do more than just bring in legislation, the scope of which is quite limited. We need to work on the credibility issue.
I support Senator Joyal's amendments because judges would continue to exercise their full discretion.
I can appreciate the attorneys generals saying that generally speaking, remand conditions have improved. However, there is nothing general about a trial. Each trial involves an accused, a crime and unique circumstances.
Second, a judge can certainly bear in mind during the sentencing process the strategies that some lawyers may have employed in an effort to have their client's sentence reduced. They can take that into account and render a decision that seems the fairest to them. Regarding the credibility of the judicial system, I will admit that the government and justice officials have a responsibility to ensure the system's credibility. However, I believe judges are also well aware of what is needed to improve the system and in this respect, Senator Joyal's amendments seem reasonable to me and in line with the principles and aspirations of the House. For that reason, I intend to vote in favour of the amendments.
[English]
The Chair: If I could just explain what is coming next, after Senator Milne, Senator Nolin will have a second question or comment and then we will go to Senator Joyal for his response.
Senator Milne: In response to Senator Wallace's statement about the fact that this bill would relieve the courts, we also heard from the Crown Attorneys that this provision might relieve some courts but it would probably completely clog up the bail courts. It will not in the long run relieve the courts at all.
I must tell honourable senators that I cannot remember another time when the association of Crown Attorneys has come before this committee and actively opposed what their Attorneys General said. This is the first time, I believe, in the 15 or so years I have been on this committee that this has happened. As it turns out, the Attorneys General, to begin with, proposed one and a half, which is what Senator Joyal is proposing. I agree with Senator Joyal.
[Translation]
The Chair: Did you follow Senator Milne's testimony?
Senator Carignan: Yes.
Senator Nolin: I would like to ask Ms. Kane a question, if you have no objections.
The Chair: Go right ahead.
[English]
Senator Nolin: Ms. Kane, my colleague Senator Angus raised a question about the scope of the bill. I have a question; maybe you know the answer. If not, that will be your answer.
Do we often have solidarity among the provincial, territorial and federal ministers on a subject?
Ms. Kane: It is not uncommon, but in recent years they all have various priorities. Sometimes the priorities vary. It has been fairly unanimous that this has been a priority for the last four years on every FPT agenda. They have been unanimous in their call for restricting credit for time served. While some have suggested one for one, there has been unanimity that no one has suggested more than 1.5 for one in any situation.
Various options were considered and there was wide support for Bill C-25 once it was tabled, the one for one option being the general principle.
Senator Nolin: Would you also say that the scope of that bill as a basic principle is one for one and the exception is 1.5 for one?
Ms. Kane: That is the way the bill is drafted. It is not for me to speak to the scope of the bill but, as drafted, it has that premise. The basic principle is that up to one for one would be the credit awarded, and only one for one in the two circumstances where bail has been denied for those two reasons and up to 1.5 for one where circumstances so justify.
Senator Nolin: I raise the question and use the word ``scope'' because an increase from one for one to 1.5 for one amounts to an increase of 50 per cent. That seems a little outside the scope or intent of the bill.
Ms. Kane: It does not reflect what was widely supported when the bill was tabled.
[Translation]
Senator Joyal: On that note, Senator Nolin, the summary of the bill, which normally outlines the purpose of the bill, reads as follows:
This enactment amends the Criminal Code to specify the extent to which a court may take into account time spent in custody by an offender before sentencing.
At issue is the principle of the time limit, but no mention is made of this in the summary. Consequently, there is absolutely no doubt in my mind that it is possible to increase. . .
Senator Nolin: Senator Joyal, the wording of section 719 is similar to that of the summary.
Senator Joyal: You are absolutely right.
Senator Nolin: The court can take into account the time spent in custody.
Senator Joyal: That is correct, except that in the bill's summary, there is no mention of any limit. As you said, at this time, pursuant to section 719 of the Criminal Code, the judge enjoys a certain amount of latitude. As Senator Wallace pointed out, the aim of this bill is to restrict that judicial discretion. I accept that judicial discretion should be limited and that this is the aim of the bill. However, my proposed amendment focuses on the parameters of the bill.
I have a different opinion of the maximum credit. Practically speaking, I am proposing a one and one-half day credit, with no change in the underlying principle of the bill. The proposed amendments would not alter the principle or aim of the bill which is to limit the credit, and set a maximum limit. I have to admit, Senator Nolin, that I also asked myself the same question at the outset. Can this type of amendment be brought in without altering the objective of the bill? I believe so. In any event, if one of us still has some doubts, they can be raised at third reading and the chair can be asked to rule. However, I do not believe that the proposed amendment poses a problem at this stage.
The Chair: Honourable colleagues, our discussions have already gone on about five times longer than a normal discussion of a proposed amendment. Senators Angus and Wallace have asked to speak. They will each have about 90 seconds.
[English]
Senator Angus: I agree with Senator Milne that it was quite extraordinary to hear the senior Crown prosecutor say what he said. It made me do some extra thinking and research. It was not in any way in respect of the ratio that we are discussing, which is the real guts of this bill. That is why I adhere to my point of view that this goes against the basic principle of the bill as determined by government policy. We can argue and will find ourselves in agreement on many issues. However, the Crown attorney was getting at the kind of administration of the court system that assigns people on bail day. It was a cry for more judges and better facilities. Many of these things have to be addressed.
Senator Wallace: Senator Joyal, you referred again to the second part of your amendment in (b) where you suggest that the maximum would go to two days for each day spent in custody. From the evidence we have heard, the norm used by the courts has been to give two for one credit. On the rare occasion, they grant in excess of that. I would suggest to you that your amendment will codify effectively the existing system, change nothing and go against the wishes of the provinces and the territories. It will codify two for one.
Senator Joyal: No. I do not think. It would establish 1.5 for one as the norm and cap it at for. The text would remain the same. The norms established would be 1.5 for one, as many Crown attorneys and the minister, according to testimony, had agreed. It would establish a cap at two, which would become an exception with the proviso that judges must justify their reasons in writing.
Senator Wallace: I suggest to you, senator —
The Chair: Senator Wallace, you made your point. I did say that after Senator Joyal responded, we would proceed to the vote. Unless you have a completely new point to make, I propose to do that.
Senator Wallace: I have an additional point, if I may. Currently, the courts have the full latitude under the existing Code to go from one for one to whatever. They have taken that typically from one for one to two for one — twice the number. Senator Joyal's amendment will not change that. Judges will still have absolute discretion to go from one for one to two for one. It would be within their discretion and that is precisely what this bill is attempting to curb. To that extent, it would reduce the discretion of the courts, and it would impose upon the judges an upper limit of 1.5 for one. Again I would say to you, Senator Joyal, that your proposed amendment would not change the law as it exists in practice.
Senator Baker: The committee is being televised this evening and we do not want to give the impression that there is a definite one for one as the norm. Perhaps the senator misspoke or was not thinking when he said it, but there are many cases in which no credit is given or at times the credit is only 0.5 for one. I am sure that he will agree with me on that.
Senator Joyal: Everyone has expressed their views and arguments. It would seem that no one will change their mind at this time so we are ready for the vote.
[Translation]
It is moved by Senator Joyal
That Bill C-25 be amended in clause 3, on page 1,
(a) by replacing line 21 with the following:
``to a maximum of one and one-half days for each day spent in''; and
(b) by replacing lines 24 and 25 with the following:
``stances justify it, the maximum is two days for each day spent in custody unless''.
[English]
Shall the amendment carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Those in favour will please say, yea.
Some Hon. Senators: Yea.
The Chair: Opposed?
Some Hon. Senators: Nay.
The Chair: Abstentions?
I declare the amendment —
Senator Wallace: May we have a recorded vote?
The Chair: The clerk will call the roll.
Ms. Richardson: Honourable Senator Fraser?
The Chair: Not voting.
Ms. Richardson: Honourable Senator Angus?
Senator Angus: Against.
Ms. Richardson: Honourable Senator Baker?
Senator Baker: For.
Ms. Richardson: Honourable Senator Campbell?
Senator Campbell: For.
Ms. Richardson: Honourable Senator Carignan?
Senator Carignan: Against.
Ms. Richardson: Honourable Senator Chaput?
Senator Chaput: For.
Ms. Richardson: Honourable Senator Joyal?
Senator Joyal: For.
Ms. Richardson: Honourable Senator Milne?
Senator Milne: For.
Ms. Richardson: Honourable Senator Nolin?
Senator Nolin: Against.
Ms. Richardson: Honourable Senator Rivest?
Senator Rivest: For.
Ms. Richardson: Honourable Senator Wallace?
Senator Wallace: Against.
Ms. Richardson: Honourable Senator Watt?
Senator Watt: For.
Ms. Richardson: Seven for, four against.
The Chair: I declare the amendment carried by a vote of seven to four.
Before we vote on clause 3, Senator Baker had said that he had a further amendment to propose to clause 3. Senator Baker, would you care to move your amendment?
Senator Baker: It is just a very simple amendment.
The Chair: I believe copies were distributed. Does everyone have a copy? While we are checking that, colleagues, I should tell you that, unlike what we all, including myself, believed, this meeting is not being televised. That little red light means it is on the public radio system, but not on CPAC.
Senator Baker: Madam Chair, this is a very simple amendment. So that all members will understand what I am proposing here, you will note that on page 2, at clause 3.2 —
The Chair: Would you read it please, Senator Baker?
Senator Baker: Yes. I will read it first.
That Bill C-25 be amended in clause 3, on page 2,
by replacing lines 14 and 15 with the following:
``(3.4) Failure to comply with subsection (3.3) does not affect the validity of the''.
All in all, we are only removing one thing from 3.4, and that is ``subsection (3.2).'' The reason for this is quite simple. Section 3.2 says the court shall give reasons for any credit granted and shall cause those reasons to be stated in the record. That is good. I agree with that.
Proposed subsection 3.3 states, ``The court shall cause to be stated in the record and on the warrant of committal . . .'' and so on. Proposed subsection 3.4 says that failure to comply with those two subsections does not affect the validity of the sentence imposed by the court.
I can understand that a judge could forget to fill out all of the forms in 3.3. If this passes as it is, we are saying that failure to comply with the requirement to give reasons does not affect the validity of the sentence imposed by the court. The proposed requirement is to give reasons for any credit granted and cause those reasons to be stated on the record. That includes any credit, anything more than zero. It could be 0.1 for one or 0.5 for one, but for any credit whatsoever. As this is currently worded, if the judge does not give reasons, it will not affect the sentence.
All we are doing is saying that the judge must give reasons, as it says in the bill. It is fairly simple thing.
We have already made two amendments to the bill, and surely we can correct this impression that is left when someone reads this bill. We asked the witnesses who appeared, and I personally asked them as well off the record. They see no logic in this at all. In fact, some of the witnesses said it would immediately go to appeal once it is enacted.
I am just suggesting the words ``subsection 3.2'' be removed from 3.4.
Senator Nolin: Ms. Kane, can you comment on this amendment to give us some light?
Ms. Kane: Certainly. I do not think the amendment is needed. I think the amendment could cause more confusion, but that is for you to decide. I will just offer a few comments about what is intended.
As you all know, a provision in the Criminal Code requires a judge to give reasons for the whole sentence: what the sentence is imposed overall, whether it includes a jail term, a conditional sentence, probation and so on, and the reasons for it. Those would include any aggravating or mitigating factors that have been taken into account, whether there are minimum sentences applicable and so on. There is the overall requirement for providing reasons.
These new requirements are only focused on credit for time served. One of the goals of the bill, in addition to restricting credit, is to get more clarity on the record. It will mean that the public and the offender have a better understanding of what the sentence is, the total sentence that was imposed upon them, what credit has been acknowledged, what multiplier or ratio has been used, and what is the remaining part of the sentence that is referred to as the sentence imposed.
Often the problem these days is that the public reads a sentence in the newspaper as a four-month sentence and reacts to that without any understanding that in fact it was an 18-month sentence but credit for time served has been taken into account. A key goal of the bill and these two provisions is to provide that clarity. The first requirement is that the court shall give reasons for the credit granted and that those reasons are on the record, and the second requirement is that it is set out in the specific detail that I referred to, the total sentence, the credit, the ratio, the sentence remaining to be served.
The provision that Senator Baker's amendment focuses on is one that says if the judge fails to do that, the sentence is still valid. In our view, it would bring the administration of justice into disrepute if you were to say that, after going through the process but missing to write down one of those aspects, the sentence was not valid, and that the court had to reconvene to resentence the accused. Other provisions in the code have similar provisions, such as conditional sentences. I was looking for the sections, and I have not found them, but they are conditional sentence provisions and probation and fines. They are all within sentencing.
Other provisions in the code indicate that the sentence or provision is not invalid by reason of failure to meet one or more requirements. This is not a unique provision. It is basically a preservation type provision to avoid arguments that the sentence is problematic because of one of these requirements that judges will hopefully comply with, but through inadvertence may not. It means you will still have a valid sentence.
Another example would be the provisions in the code that require a judge to consider restitution in certain cases. If the judge does not consider restitution, it does not mean that the sentence imposed is invalid in any way. If the judge does not consider aspects of a victim impact statement or does not impose a victim surcharge, it does not mean there is some invalidity or adverse consequences for the judge. There is a principle of the common law that the substance triumphs over the form, and this would be another example of that. The sentence is validly imposed. The judge has taken those factors into consideration, but the record does not so indicate. The sentence that is imposed remains the sentence that can be administered by Correctional Services of Canada or a provincial correctional facility. It is still a valid sentence. That provision simply clarifies that principle.
The Chair: Thank you, Ms. Kane.
Senator Nolin? Senator Carignan?
[Translation]
Senator Carignan: Ms. Kane has answered the question to my satisfaction.
[English]
Senator Campbell: I am sort of on the horns of a dilemma here. On one hand, the bill is designed to, and I hope does, alleviate the public perception that you are getting a good deal by going to remand. On the other hand, we are allowing the judge to ignore the requirement to tell the public exactly what is going on, and this will not affect the sentence.
In answer to Ms. Kane's statement, I would like to see them take it back to the judge. I would like to see him embarrassed that he actually ignored a section of this code and has to give reasons.
One of the things I like about this is that there has to be a reason given so that people can understand. That is how you can express your outrage. I do not believe that a person should have two for one, but the judge must tell you that. I am supporting this because I believe that, while judges have a wide range of discretion, there are areas in which we need to say, ``You are responsible.'' I will be supporting this amendment.
Senator Wallace: I wish to direct this question to Ms. Kane. Do I take from what you had to say that, in your opinion, clause 3.4 as it is now set out in Bill C-25 is required in that form in order to maintain consistency with the other provisions of Bill C-25?
Ms. Kane: My point is that it is not a unique provision. We have similar provisions in other parts of the Criminal Code.
Senator Wallace: Is your answer yes, that in your opinion it is required for purposes of consistency?
Ms. Kane: Yes, it is required to refer to both clause 3.2 and clause 3.3. It would be confusing if it only referred to one of those two.
Senator Wallace: I want to comment on something Senator Campbell said. There is no question that the purpose of this bill is to create additional clarity and to ensure that judges will provide reasons and that the record will be more of a reflection of the thought process and what happened. As I read clause 3.4, it is to cover the circumstance where I would assume that through inadvertence that did not happen. The ultimate objective of all this is to provide protection to the public and to have those that are convicted serve their sentences. I think it would be a severe loss to have the validity of a sentence questioned or removed because of a technicality.
Senator Angus: With all due respect to my friend Senator Baker, I do not think this adds anything. I think it is a cynical suggestion. I will tell you why. We have been around the courts quite a bit in our lives. When you have a provision like ``the court shall,'' and that is what it says in clause 3.3, ``the court shall cause to be stated,'' what serious- minded judge will ignore those provisions? Your amendment is saying that they will probably do it many times. Of course, we need reasons. That is why those provisions are in there. They are saying the court shall give reasons. However, if some really weird or extreme thing happens and the judge has a long lunch and forgets to read those two sections, then the sentence will not be vitiated. This is consistent with the framework of our criminal legislative system. That is what we have been told by the representative of the minister's office. I believe we must oppose this amendment. This is a cynical little stab.
The Chair: I would not wish the record to show aspersions of motive, Senator Angus.
Senator Angus: I apologize and I agree with you, Madam Chair.
Senator Joyal: We have been told that it is important that the sentence be clear, that the public understand it, and that everyone have a clear perception of what happened in the trial and of the substance of the sentence. There are provisions, clause 3.2 and clause 3.3, to compel a judge to explain why. The bill goes on at length on page 3, not to propose but to enshrine a form in the law.
The purpose of the bill, as I understand it, is educational so that people understand what the credit is, what the offence is, what the remarks are and so on, with which I agree. However, at the end of it, you say, ``Well, if you do not do this, it is not important. The sentence is still good.'' It seems to me that you contradict the very purpose of the bill, which is to make everyone understand the nature of the credit, the extent of the credit and the reasons why the credit has been granted. There is a contradiction per se at the end of it. The good intention that we all have in there is to finally say, ``Well, forget about it. It is not that important. The sentence is still valid.'' It seems to me it does not fly.
[Translation]
The Chair: We can come back to Senator Carignan, and then ask Senator Baker to respond.
Senator Carignan: Regarding the public's confidence in the system, I am trying to put myself in the shoes of a citizen who is generally well informed and who sees an offender receive a two for one credit on a ten-year sentence. The decision surprises him somewhat because from where he stands, one day in prison should equal just that, namely one day.
Now, explanations must be provided, because the judge neglected to state the reasons for granting a credit of one and one-half days for one day, as to why the decision would be rendered invalid. I think that a generally well informed citizen would be quite surprised if the courts were forced to review the case and set another sentence, all the more so in that this could create a legal void. If the sentence was quashed, that is to say if a three year sentence was originally handed down and was subsequently quashed on appeal and the case re-opened, the offender more than likely would already be in prison and problems of a practical nature could arise.
I think this would tie up the courts unnecessarily. The provision is clear. The judge must give the reasons for the credit granted. However, to call into question the validity of the sentencing decision because of the judge's failure to give the reasons for the credit granted. . .In the case of a 10-year sentence, pre-sentencing custody may account for only 10 per cent of the overall sentence. If a decision can be invalidated because the judge failed to give the reasons for this 10 per cent portion of the sentence, I think the public would have a difficult time understanding that and its confidence in the judicial system could b further eroded, especially since these are fundamentally technical and bureaucratic considerations.
Senator Chaput: Contrary to what the senator just said, the amendments that are being put forward today clarify the scope of the bill and provide some additional structure, without taking away a judge's latitude. I am not a lawyer, of course, but as I see it, we could expect to see the following happen with the amendments currently on the table.
The amendments clarify and add structure to the bill, while still allowing the judge some latitude, which is entirely normal. However, regarding the public's confidence in our justice system, we are asking that the court give its reasons for any credit granted during the sentencing process. As I see it, it is a question of transparency and this would bolster the public's confidence in the justice system.
Obviously, I will be voting in favour of the amendment.
[English]
Senator Baker: Every decision that a judge makes must have a reason, no matter what that decision is, because of a couple of Supreme Court decisions. R. v. Shepherd in Newfoundland and Labrador in 1972 stated that a judge must give reasons for anything that affects the final determination of the court, and this has been repeated many times. That was for a minor decision made by a judge during pre-trial.
I agree with Ms. Kane that many sections in the Criminal Code state that if a judge does not perform a certain duty or if something is left out, it will not affect the final sentence. For example, if you have your licence taken away, the Criminal Code requires the police officer to give you a form, explain it to you and ask you to sign on the back. If you do not sign on the back, the law says that it does not affect the fact that you have lost our driver's licence. Or if there is something wrong after the committal to trial from the preliminary enquiry, for example, if a date is wrong or if the section of the Criminal Code is wrong, that does not nullify the decision of the court. There are many such instances in the Criminal Code. However, it there is no such instance when someone is in jail and does not know why because the judge did not give reasons.
The senator just gave an example. He said that a 10-year sentence will cover only one tenth of the sentence. That is one year in jail. The reason must be there for appellate review. Every determination on sentencing must be able to be argued in appellate review. That is a basic tenet of law. I understand where the wording is coming from; it is already in the code in various sections. However, it is not for things that involve someone's presence in a jail.
I would submit that we would be improving this and doing what the government is setting out to do in the bill, if we were to simply correct this by saying, yes, the judge should give reasons.
[Translation]
It is moved by Senator Baker
That Bill C-25 be amended in clause 3, on page 2, by replacing lines 14 and 15 with the following:
``(3.4) Failure to comply with subsection (3.3) does not affect the validity of the''.
[English]
Shall the amendment carry?
Some Hon. Senators: No.
Some Hon. Senators: Yes.
The Chair: All those in favour will please say, yea.
Some Hon. Senators: Yea.
The Chair: Those opposed will please say, nay.
Some Hon. Senators: Nay.
The Chair: Abstentions? I declare the amendment carried.
Senator Wallace: Can we have a recorded vote?
The Chair: We will proceed to a recorded vote. The Clerk will call the role.
Ms. Richardson: The Honourable Senator Fraser?
The Chair: Not voting.
Ms. Richardson: Honourable Senator Angus?
Senator Angus: Against.
Ms. Richardson: Honourable Senator Baker?
Senator Baker: For.
Ms. Richardson: Honourable Senator Campbell?
Senator Campbell: For.
Ms. Richardson: Honourable Senator Carignan.
Senator Carignan: Against.
Ms. Richardson: Honourable Senator Chaput?
Senator Chaput: For.
Ms. Richardson: Honourable Senator Joyal?
Senator Joyal: For.
Ms. Richardson: Honourable Senator Milne?
Senator Milne: For.
Ms. Richardson: Honourable Senator Nolin?
Senator Nolin: Against.
Ms. Richardson: Honourable Senator Rivest.
Senator Rivest: Against.
Ms. Richardson: Honourable Senator Wallace?
Senator Wallace: Against.
Ms. Richardson: Honourable Senator Watt?
Senator Watt: For.
Ms. Richardson: Six in favour; five against.
The Chair: I declare the amendment carried by a vote of six to five. We have amended clause 3 in two aspects. Senators, shall clause 3, as amended, carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: On division.
The Chair: Carried, on division.
Senator Watt, shall I conclude the consideration of clause-by-clause? Normally, we would proceed with clause-by- clause but do you wish to make a general point?
Senator Watt: I would like to give notice to the committee that I plan to put forward an amendment at third reading. If you wish me to explain, I could do so.
Senator Angus: Do you have copies?
Senator Watt: Yes, I could circulate the copies.
The Chair: No. Senator Watt, in order not to clutter up the proceedings of amendments that we have before us, we could reserve time for you to speak to your amendment after we conclude the current business on clause-by-clause?
Senator Watt: That is fine.
The Chair: We will return to you.
Shall clause 4 carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Shall clause 5 carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried?
Shall clause 6 carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Shall the title carry?
Hon. Senators: Agreed.
The Chair: Opposed? Abstentions? Carried.
Shall the bill, as amended, carry?
Some Hon. Senators: Agreed.
Senator Nolin: On division.
Senator Wallace: On division.
The Chair: Carried, on division.
Does the committee wish to consider appending observations to the report?
Senator Campbell: No.
The Chair: I hear no such desire.
Is it agreed that I report the bill, as amended, to the Senate?
Hon. Senators: Agreed.
The Chair: I shall do so at the next sitting of the Senate.
Senator Watt, please proceed.
Senator Watt: During the committee hearing, we heard from a number of very credible witnesses, including some who represent the Crown. They indicated that this bill would not necessarily be good for Aboriginal people across the country.
Minister Nicholson indicated that he consulted with the attorneys general of the provinces, but he did not answer my question when I asked him if he had consulted with the Aboriginal people across the country.
I believe that our constitutional rights are being violated. We definitely must have a opportunity to hear what they have to say with regard to this bill. You heard the same thing that I heard from the witnesses, namely, that there are high numbers of Aboriginal people in the penitentiaries, both in the provincial jurisdiction and also under the federal jurisdiction. If we do not make an attempt to examine how we can better the system for the Aboriginal people, we are not doing our job.
We must understand that the Aboriginal people are also Canadian. As Inuit, we are taxpayers. Our brothers, the First Nations, do not pay tax, but the Inuit do. On that account, and I would like to be heard, I would like to have an opportunity to put forward what in this legislation is a bad thing to do. This will not be working in the benefit of the Inuit, the First Nation or the Metis.
We have heard about the high numbers of our people in the penitentiary system. In Manitoba, they represent more than 90 per cent of inmates. That is too high. There is something wrong somewhere. Take a look at Saskatchewan. It is high there. It is 80 per cent. We also heard from witnesses the other day that women represent 32 per cent. This is the figure for women alone in correctional institutes.
I believe this bill, from what I heard from the witnesses, will increase the numbers. They are the professionals, and I must believe what they say. I might have a bit of doubt if they were not representing the Crown when they are making those statements. I would have to say they have nerve and guts to come forward and say that this will bill not do justice for the Aboriginal people.
For that reason, I will be moving an amendment at third reading to exempt the Aboriginal people from this act and to allow the system that already exists to continue to apply to the Aboriginal people until such time as we have had a proper review and find out once and for all what is really happening. Those high numbers do not give me comfort.
Honourable senators, I hope you understand me. I must do my job.
The Chair: Senators, Senator Watt has done us a significant courtesy in explaining his intentions as we go forward. I do not propose to open debate on this matter. Senator Watt has given us notice of what he intends to do, and full debate can occur at that time in the chamber. I think pre-empting that now is less appropriate. Do colleagues stand in agreement in this matter?
Hon. Senators: Agreed.
The Chair: This concludes our study in this committee of Bill C-25. Our next meeting will be tomorrow morning in this room at 10:45 a.m.
Senator Milne: Did you ask for permission to report to the Senate?
The Chair: I did, and it was given.
We shall begin our study of Bill C-15, an Act to amend the Controlled Drugs and Substances Act. Our first witness will be the Honourable Rob Nicholson, Minister of Justice and Attorney General of Canada.
Ms. Kane, I thank you very much. It is always extremely helpful to have you with us, and we are grateful.
(The committee adjourned.)