Senator Carignan, will you answer questions? You have two minutes.

I’m entering on debate because I appreciate the voice condition you have. I did have questions, and maybe somebody else who has worked with you on this might be able to, in speaking to this bill, respond to them.

Of course, we have just heard this amendment, and I’m just reading it here. I need to put it into context with the rest of the bill. I want to ask about the full impact of this amendment. I know from talking to some of your caucus colleagues in response to my questions about some concerns about the bill that there were concerns about whether minimum sentences, for example, should be introduced into this and a range of other things.

This is slightly different. This is about what category of charge would be appropriate given the circumstances of the commission of the crime that you are talking about. It’s a very despicable set of conditions that you have described, so I understand why you are trying to address that.

What I don’t know is, at the current time within the Criminal Code, what discretion there is for the prosecutors or the attorneys on behalf of Justice to give thought and discretion to what the conditions were and all the sorts of things we think about when we think about discretion of judges in terms of sentencing. As people speak to this, that’s one of the concerns that I would be interested in. I would want to know that people who were involved in committee throughout this whole process have taken a look at it and have understood. I don’t know if it was introduced in committee or if this is brand new.

My concern is that prosecutors have a certain discretion, along with the police, about what charge is laid in certain cases. I don’t know if this limits them, and I don’t know if it has been looked at what the problems or consequences of that would be. It sounds reasonable, but I need to know that and, therefore, what that means with respect to any current provision of minimum sentencing that might apply to this category of offence.

I am hoping that others who have worked with you or talked with you and who are in opposition to this bill would speak to that when they speak to your amendment. I’m sorry that your voice is not allowing you to answer that directly.

Honourable senators, let me start by thanking Senator Carignan for his remarks and work on the committee on Bill C-21.

First, I would like to say that I don’t support the amendment, and I would ask colleagues to reject it, but maybe I could help answer some of the questions that Senator Lankin just raised in regards to the amendment.

Section 231 of the Criminal Code, which this amendment looks to alter, deals with the classification of murder. This section of the code deals with sentencing rules referring to first‑degree murder and second-degree murder. It defines first‑degree murder as being “planned and deliberate,” and second‑degree murder as being the inverse — murder that is neither planned nor deliberate.

It is important, honourable colleagues, to note that anyone who commits murder, regardless of the degree of guilt of an indictable offence, will be sentenced to the same sentence of life imprisonment.

The difference in sentencing between first-degree and second-degree murder is simply the degree of judicial discretion. Persons convicted of first-degree murder are sentenced to life and are ineligible for parole for a minimum of 25 years. A person convicted of second-degree murder is ineligible for parole for a period anywhere between 10 and 25 years, set by the sentencing judge, a judge who has heard all the related testimony in a specific case and can make a learned judgment on where to set an offender’s parole ineligibility based on the facts of the case.

This amendment looks to amend the sentencing rules governing murder and would provide that any murder that occurs in a public place be treated as a first-degree murder, regardless of whether the murder was planned and deliberate. It will, in effect, take away the discretion of the trial judge, who has the best sense of the facts and the clearest sense of the appropriate punishment.

Honourable senators, it is important to remember that those who commit murder, regardless of the degree, are sentenced to life. It should be noted that this amendment looks to create a new subclause to section 231 of the Criminal Code, one not envisioned by its drafters.

This amendment will result in some murders committed with a firearm being treated more seriously than others. For instance, second-degree murder that is committed in a home involving a firearm would be treated less seriously than second-degree murder that is committed in a public place with a firearm.

Additionally, colleagues, section 231 of the Criminal Code already provides numerous examples of when a murder must be considered a first-degree murder, regardless of it being intended or planned. Those exceptions that will always cause a murder to be treated as a first-degree murder are, for example, a contract murder, murder of a peace officer, hijacking, sexual assault or kidnapping, criminal harassment, terrorism activity, intimidation, and if the murder is caused for the benefit or at the direction, or in association with a criminal organization.

These exceptions to the test as to whether a murder is planned or deliberate are targeted to ensure that those people who commit the most heinous of offences face the harshest sentence in the Canadian criminal justice system. The amendment that we have before us today is too broad and ignores the exceptions that are already included in the Criminal Code. It looks to take away discretion, once again, from judges.

I would want to know why such an amendment is needed and what the legal implications would be. Additionally, Bill C-21 also includes numerous other provisions that will strengthen existing Criminal Code provisions and provide police with new wiretapping authorization. This change will enable police to investigate firearms crime more effectively, including its links to organized crime. These changes are common-sense and respond to calls for reform from provincial partners.

Importantly, Bill C-21 would also increase the maximum penalty for five different firearms offences to 14 years, including offences that target firearms trafficking and smuggling. This is an important change; although, it has been one that certain senators have criticized.

In fact, however, the Supreme Court of Canada has recognized that when Parliament chooses to increase maximum penalties for existing offences, it is to be taken as a signal to the courts that such offences should be taken more seriously, including by increasing the sentencing range for persons convicted of these offences. Bill C-21 sends an unequivocal message that firearms trafficking and smuggling can be of the utmost seriousness and should be treated accordingly by the courts. Those who have criticized these changes, and those who believe in a so-called tough-on-crime response, would have the public believe that the only way to forcibly respond to serious offending is through the enactment of mandatory minimum penalties. This is false, and it’s a perspective I strongly disagree with.

In saying this, I should not be taken as saying that mandatory minimum penalties are always inappropriate or that there is no place for such sentencing tools like that in our criminal law. They can play a role in certain cases and can send a strong denunciatory message.

I believe the government understands that, as the sentencing reforms included in Bill C-5 — which this chamber passed not so long ago — ensured that mandatory minimum penalties remain in place, including for firearms-related offences that involve organized crime, for example. At the same time, the government’s recent sentencing reforms recognize that there is more than one way to address serious crime. Bill C-21 and its proposed increase of maximum penalties is evidence of that.

In my view, those who advocate for mandatory minimum penalties as the only response to serious crimes overly simplifies matters and gives a false sense of security. Being tough on crime means being smart on crime, and mandatory minimum penalties that apply to these offences that can be committed in various ways involving circumstances of varying seriousness are not smart on crime, and they are certainly not tough on crime if they lead to litigation that results in them being struck down.

Lengthy litigation delays justice for victims and can cause them to lose confidence in the criminal justice system.

Senators, in conclusion, we owe it to victims and, indeed, to all Canadians to be mindful of this when we consider criminal justice policy. I say again that this amendment that we have before us today is too broad, ignores the exceptions that are already included in the Criminal Code and looks to, once again, take away from the discretion of judges in our legal system.

I urge you, honourable senators to reject the amendment and pass Bill C-21.

Thank you.

Honourable senators, I hadn’t intended to intervene in the debate, and I have immense respect for Senator Carignan’s thoughtfulness in relation to matters related to the criminal law, but I do want to raise two observations.

One, if the nature of this is to try to increase the mandatory minimum for certain quite serious crimes, it seems a bit unusual to do it by ratcheting up the nature of the offence, particularly when one does that with respect to first-degree murder.

Second, more generally — and maybe in a slightly protective way related to the role and responsibilities of the Legal and Constitutional Affairs Committee — we constantly face challenges at that committee in — I don’t want to use the word “tinkering” with the Criminal Code — but in making individualized adjustments. It’s a big enough challenge as it is to be comfortable that we are addressing those questions in an organized, logical and coherent way.

With respect to first-degree murder, the regime for, essentially, borrowing the concept of planned and deliberate, setting that aside and holding first-degree murder together for other types of offences, particularly based on the victim, is a very fragile and carefully thought-together framework. I don’t even call it a “regime,” but a “framework.” With the greatest of respect, this is a problematic way of making amendments to and expanding the scope of first-degree murder without reflecting on that larger category.

As I think you will know, the Legal and Constitutional Affairs Committee was not mandated to work on this bill, and this is a matter, I think, that if it deserves consideration, it should be done independently and with richer degree of thought.

Thank you very much.

Senator Cotter, will you take a question?

Of course.

Thank you, Senator Cotter.

I was reminded, as Senator Carignan was speaking, and as I read the amendment of the R. v. Martineau decision in 1990 — which I remember, because I, many years later, covered a case in which a judge, forgetting that Martineau had struck a section out of the Criminal Code, attempted to convict somebody of second-degree murder with robbery being the predicate felony.

I’m wondering — since you are a constitutional law professor and I am not — if you could tell me whether you think that the court’s reasoning in Martineau would, perhaps, render this amendment unconstitutional, because Martineau found that a person charged with murder must have formed the intent to commit that crime. In this instance, this amendment, even if you didn’t have the intent to commit first-degree murder, you would potentially be captured. I wonder if you think the argumentation in Martineau would flow to be mirrored in this.

Speaking for myself, I would need to think about that question more deeply. This is what happens in the Criminal Code right now: What is normally thought of as a requirement for somebody’s life taken on the basis of a planned and deliberate performance by the accused person is circumvented in the language of the Criminal Code for a specific set of offences, and it’s nearly always focused on particular victims. Whether this one would fit comfortably within that regime or would be challenged — my guess is it’s the kind of thing that would be challenged — raises uncertainty about it. There is a good argument that if you want to think about this as a category of first-degree murder, you need to think about the whole of those provisions that deal with first-degree murder, and that circumvent the planned and deliberate requirement.

With the greatest respect, I don’t think that’s been explored well enough. I think it hasn’t been explored in this chamber well enough for us to move forward.

People commit terrible acts, and first-degree murder is one of the mechanisms by which we hold them most severely accountable — that’s perfect and legitimate, but we have to be satisfied that we put that in place for the right types of offences. It’s premature to say that this is one.

Are honourable senators ready for the question?

In amendment, it is moved by the Honourable Senator Carignan that — shall I dispense?

Is it your pleasure, honourable senators, to adopt the motion?

All those in favour, please say “yea.”

All those against, please say “nay.”

I do believe the “nays” have it.

I see two senators rising. Do we have an agreement on the length of the bell?

Pursuant to rule 9-10, the vote is deferred to 5:30 p.m. on the next day the Senate sits, with the bells to ring at 5:15 p.m.