EVIDENCE

Standing Committee on Justice and Human Rights NUMBER 015 1st SESSION 41st PARLIAMENT Wednesday, November 23, 2011 Le mercredi 23 novembre 2011 Standing Committee on Justice and Human Rights CANADA [Recorded by Electronic Apparatus] EVIDENCE November 23, 2011 Committee Edited Evidence * Table of Contents * Number 015 (Official Version) Official Report * Table of Contents * Number 015 (Official Version) Témoignages * Table des matières * Numéro 015 (Version officielle) 15 23 11 2011 2011/11/23 15:30:00 House of Commons Comité permanent de la justice et des droits de la personne Standing Committee on Justice and Human Rights JUST Chair Mr. Dave MacKenzie 41 1

(1530) [ English ] The Chair (Mr. Dave MacKenzie (Oxford, CPC)) : We'll call the meeting to order. This is meeting number 15 dealing with Bill C-10 ,

an act to enact the Justice for Victims of Terrorism Act and to amend the State Immunity Act, the Criminal Code, the Controlled Drugs and Substances Act, the Corrections and Conditional Release Act, the Youth Criminal Justice Act, the Immigration and Refugee Protection Act and other acts. We're doing clause-by-clause consideration. However, before we begin that, there are a couple of committee business items. Tomorrow our regularly scheduled meeting is at 8:30, and the clerk says we have to meet at 7:30 or not at all. So I decided we wouldn't meet. Mr.

Robert Goguen (Moncton—Riverview—Dieppe, CPC) : I'd move for not at all. The Chair : Because we've put in our hours, and more than our hours, this week, there will not be a meeting tomorrow morning. Mr. Jack Harris (St. John's East, NDP) : I think I can agree, without any sense of guilt or dereliction of duty on behalf of myself and all of our colleagues. I think we've put in our share of time on this committee this week and last. The Chair : Thank you. Mr. Harris has indicated he has a.... Mr. Jack Harris : I have a motion for which notice has been given.

It reads: That, pursuant to Standing Order 81(5), the Committee consider the Supplementary Estimates (B) 2011-12 under JUSTICE, and that the Committee invite the Minister to appear on or before December 1, 2011. I submit that. The Chair : I believe there is an error in the French version that has been corrected. Mr. Jack Harris : I have changed the French version on the one submitted to the clerk to read le 1er décembre . The Chair : Mr. Jean. Mr. Brian Jean (Fort McMurray—Athabasca, CPC) : Mr. Chair, what is the last day we can consider supplementary estimates before the expiry? How many days do we have? Mr.

Jack Harris : That may be the last day. That's why it's “on or before”. That leaves at least two meetings next week when we can do that. Mr. Brian Jean : That's what I'm wondering, first of all. And also, of course, we have no idea of the availability of the minister at this time, so we'd have to consult before we could deal with any of this. Mr. Jack Harris : We left that time available, but ministers traditionally make themselves available for committee estimates. Mr. Brian Jean : Absolutely. Mr. Jack Harris : That's been the convention of Parliament. Mr.

Brian Jean : Can I just suggest that, first of all, we find out what the last day is that the minister can come and give evidence, because obviously that's extremely important, and secondly, that the parliamentary secretary have an opportunity to talk to the minister's staff to find out what days he is available? Then we can deal with it on that basis and maybe table this at the next meeting.

(1535) Mr. Jack Harris : The minister may be available on Tuesday. We may be dealing with this on Tuesday. I would suspect that to be the case, in fact. I believe December 1 is the last day we can consider these estimates, lest they're deemed reported or something like that. Mr. Brian Jean : Reported, absolutely. Mr. Jack Harris : So if we're going to be able to do that, we're not going to meet tomorrow. It's too short a notice for the minister, in any event. That makes it available for either Tuesday or Thursday of next week, which should be adequate. The Chair : I think Mr. Goguen has a comment. Mr.

Robert Goguen : I've just been advised that these supplementary estimates were in fact presented by court administration and prosecution services, so it wasn't directly from the Department of Justice. So I don't think it would be the minister who would be called to come and appear in this instance. The Chair : Just a minute. I think we're talking about different things. This is for the supplementary estimates. Mr. Robert Goguen : This is just what I've been advised. You heard me correctly. The Chair : Mr. Harris. Mr. Jack Harris : I don't think it matters who prepared them. It's under the purview of the minister.

He can bring officials with him if he wishes, but my understanding of our system is that for the response from the government, the minister is responsible to the House and to the committee for the estimates. This is brand new to me. It has been my experience in parliaments that the minister comes, and if he wants to bring the person who prepared those particular estimates to deal with the technicalities of it, then that's quite all right. But estimates have traditionally been an open-ended opportunity for questions to be asked of the minister on the department's activities. The Chair : Mr. Goguen. Mr.

Robert Goguen : We're going to speak to the minister and get a little bit more clarification. I wonder if this could be deferred until such time as we have a clear indication of what.... Mr. Jack Harris : We could suspend for the consideration of it. I'm just a little concerned here because we're not going to have a meeting tomorrow. Our next meeting will be Tuesday. If they want to stand down for five minutes while the minister is conferred with or the minister's office is conferred with, I'd be happy to do that, but we can't do both. The Chair : Mr. Jean. Mr.

Brian Jean : I was going to mention, I don't know if we received the normal 48 hours' notice. Did we? The Chair : Yes. Mr. Brian Jean : When did we receive the notice? Mr. Jack Harris : Monday night. The Chair : Monday. Mr. Robert Goguen : The best that we've determined is that, yes, the minister would be willing to appear, but also there were presentations done by court administration and prosecution services, so officials from both of these arms would have to appear as well. The Chair : Mr. Harris. Mr. Jack Harris : As long as it's the minister.... I don't care who he brings with him, as far as I understand.

Mr. Robert Goguen : So we would support it. The Chair : Okay. The motion is then presented. (Motion agreed to) The Chair: Mr. Cotler indicated.... Hon. Irwin Cotler (Mount Royal, Lib.) : Yes. Thank you, Mr. Chairman. As I mentioned to you, I have what might be called, I hope, a friendly precautionary point of order arising from the discussion that took place yesterday, and it was actually during a part of the discussion that I had to be in the House, so before we return to our clause-by-clause review I'd like to reference it.

I believe it arose in part because one of the witnesses innocently, though somewhat maybe incorrectly, contributed to the deliberations leading to an outcome that I think this committee should appreciate in a certain way. I ask the indulgence of all parties because I know that the sequence is out of place with our plan for today, but I'm bringing it up at the outset now so that if there is some merit to what I am saying, members can consult with whomever they wish during the course of the day, during the break, and maybe at the end of our deliberations we can in fact act on it.

The problem, as quickly as I can illustrate this, Mr. Chairman, arose in yesterday's discussion of clause 103 on page 59, wherein the English version says, “sexual exploitation of a person with a disability” and the French says [ Translation ] " personnes en situation d'autorité " [ English ] I know this was discussed yesterday, but the problem we have, Mr. Chairman, is that on page 102 of the bill, which is

schedule 2—and we have yet to get there, so I'm doing this by way of anticipation, but it connects—the English refers in the same way to the

section of the Criminal Code in

section 153. But in referring to the same

section of the code in French, it says (1540) [ Translation ] " personne qui est en situation d’autorité ou de confiance vis-à-vis d’une personne ayant une déficience " [ English ] In other words, the French is clearly different in the French text later on in this same bill. I realize, as it was pointed out yesterday, Mr. Chairman, and I sought to follow it carefully, that these are

section headings and that they themselves have limited juridical application by virtue of the

Interpretation Act, as my Conservative colleague correctly pointed out yesterday. We cannot have really two different ways of

interpretation in English and French in this manner. Either the English is inaccurate or the French is inaccurate, and either it is wrong in one

section or both. I would like the government to look into this and decide which wording it finds acceptable, so at least we may report a version of the bill without an internal inconsistency in the bill. Mr. Chairman, this is where I must bring up the issue of what was said yesterday during the discussion by one of the witnesses. My colleague from the NDP, Madam Boivin, stressed that it was important to have the English and the French match. Mr. Jean and others pointed out, correctly again, that we can't change the Criminal Code and that is not the legislation before us.

However, the comments from the witness, and again I know that it was meant and stated in an inadvertent contributory manner, implied that we couldn't in our reference to it change the text used to refer back to the

section of the Criminal Code in question, in this case

section 153, or, in other words, the impression that members may have had—and it would be the kind of impression one could have—was that these margin notes were phrases fixed in the Criminal Code, and that we were stuck with them as they were, and that was because the Criminal Code was not before us. Mr. Chairman, herein lies the problem. Subsequent references to

section 153 in the Criminal Code itself, in French, all of which use the same English as we have, use a different French than we do, namely the words as I said, [ Translation ] " exploitation d'une personne handicapée à des fins sexuelles " [ English ] It is a different French from the one we have. As such, Mr. Chairman, the witness may have been incorrect in implying to the committee that such phrases are set in stone, that they are frozen in the Criminal Code, and that therefore Madam Boivin was incorrect to suggest that we change the French to accommodate the reference in English to

section 153.1 of the Criminal Code. Indeed, if Madam Boivin succeeded in changing the reference in French from [ Translation ] " personnes en situation d'autorité " to " exploitation d'une personne handicapée à des fins sexuelles ", [ English ] the bill would in fact be more consistent with what is now in the Criminal Code already, and such a change would not only be completely permissible but I would say desirable. Mr. Chairman, let me be frank.

I doubt that even if Madam Boivin had put forth her amendment it would have succeeded in the manner in which we are proceeding on the votes, but the government may want to consider this as we near the end of our study. I looked at this last night. I looked at both the English and the French, and I was asking myself why there is such a large difference between the margin notes for

section 153.1 in English and in French. I want to suggest to you, Mr. Chairman, and to the committee that the reason is that in English one casts it in the language of the victim and in French one casts it in the language of the accused. This need not be problematic in and of itself.

While I think generally the Department of Justice might move to reform and consolidate the Criminal Code and remove such seeming discrepancies, we should ask ourselves today whether we can make a decision on how to eliminate this inconsistency with respect to the two English references in our bill and with respect to the two references in French in our bill, and of course between the then discrepancy between the English and the French. In conclusion, Mr. Chairman, I don't think there needs to be disagreement on this point. When we break later for dinner, for example, I'd be happy to informally discuss this.

I know it's difficult to understand all that I’ve now said because it may involve some sort of technical appreciation and referencing and going back and forth. The only point I would like to make is that it would seem to me that it would make sense to align the two English references to

section 153.1, which speaks of “sexual exploitation of person with disability”, with the French use, (1545) [ Translation ] " exploitation d'une personne handicapée à des fins sexuelles ", [ English ] which reflects the language found in at least three different places elsewhere in the Criminal Code. It's not as if it's frozen in the Criminal Code, as we now have read it in

section 153.1, and it can't be changed because the other references in the Criminal Code change the language in a way that allows the making of a uniform application of both. I would say it's within our scope to make this change, and I'd like us to at least have consistency between the two references to the same

section in French and in English, and to have the committee be aware that we do have the authority to select this wording, and that when we report it out we could have a consistency between the English and the French, Mr. Chairman. The Chair : Thank you, Mr. Cotler. Mr. Goguen. Mr. Robert Goguen : Mr. Cotler brings up some valid points, and certainly we'll take them under advisement, but we don't propose to deal with them at this stage of the proceedings. Certainly we have dealt with that earlier, and it's not to say something may not come of it.

We'll examine it certainly in detail, but we have to pass the remainder of the clauses that have not yet been reviewed, and there are a number of them that may be somewhat lengthy. Hon. Irwin Cotler : Mr. Chairman, I agree. I'm not saying that we should deal with it now. My whole point was just that we should be aware of it now so that we might think about it during the day, because there are some things that I raise that may not be as clear as they could be when one has a chance to look at it and discuss it, and over dinner sometime I'd be open to any type of further sharing of this. Mr. Robert Goguen : Mr.

Cotler's points are well taken. Thank you. Mr. Jack Harris : I have no problem with it, other than obviously that we didn't have the full information last day, but we think the focus today is on the remainder of the bill. The Chair : Ms. Kane. Ms. Catherine Kane (Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice) : If it's helpful to the committee to know this, we did follow up with respect to that issue of yesterday. We spoke to our legislative drafters. I can provide you with a little bit of information now that might be of assistance. But as Mr.

Goguen says, we will follow up on this and ensure that when the opportunity arises, the proper versions can be changed, if that's possible. I would like to reiterate, though, that legislation is drafted in English and in French separately; one is not a translation of the other. This provision in clause 103, referring to the sexual exploitation of persons with disabilities, was enacted in 1998. The marginal notes that were included in the French and the English versions, as noted by Madame Boivin yesterday and Mr. Cotler today, basically take differing perspectives.

One describes it from the perspective of the victim and the other from that of the offender. That is the way the marginal note appears in the Criminal Code now and has since 1998. That is the way that Parliament enacted it then. The marginal note does not provide part of the

interpretation for the provision; it's the offence, and the offence is indicating the exact same elements in English and in French. They're not a direct translation of each other but contain the exact same provisions. We are not able to change the reference in this bill as it refers to that in the Criminal Code, because that is what the Criminal Code says in the marginal note. If we had an ability to change the marginal note in the Criminal Code in another statute, our drafters have indicated that we would have to be amending that provision; we can't simply amend the marginal note.

We would also have to go through and determine where else that provision had been referred to with the same marginal note in brackets in both languages. We would have to do a more thorough examination of where that provision appeared. The other thing I would note is that to our knowledge, the fact that it's characterized one way in the French version and another in the English in the marginal note has not caused any problems of

interpretation. None has been brought to our attention. Concerning Mr. Cotler's point with respect to how that same provision is referred to in the schedule, relating to what was previously Bill 23-B, in our view it probably could be corrected, because that is not the way the Criminal Code refers to that provision. For internal consistency, it may well be possible that the French version could line up with the other French version as noted in clause 103, for the sake of internal consistency. I realize this doesn't address your primary concern about the two languages taking a different perspective in the marginal notes, but it would address the internal inconsistency.

(1550) The Chair : Thank you, Madam Kane. Madame Boivin. [ Translation ] Ms. Françoise Boivin (Gatineau, NDP) : I will be brief, because I just want to correct one thing Mr. Cotler said earlier. In fact, we were not discussing the substance and we did not propose one option rather than another to the committee. We simply pointed out the error that seemed to us to be obvious, this inconsistency between the language versions, but we did not choose an option. We did not suggest one solution rather than another.

What we did was try to see whether we could not immediately correct something that seemed to present a problem and see which side to come down on. I also did a little research last night and confirmed that this had not actually had any consequences. In fact, it was the first time someone had noticed it. I do note that you are going to take the action that may be required in the necessary context. [ English ] Ms. Catherine Kane : Sure. [ Translation ] Ms. Françoise Boivin : This may come up another day, some other time in another amendment proposal, to correct the form.

It does not create a problem of substance. [ English ] The Chair : Thank you. We will resume our study of clause-by-clause. We're at clause 206, and I believe the NDP— Ms. Kerry-Lynne D. Findlay (Delta—Richmond East, CPC) : It's clause 205. The Chair : I'm sorry. We're at clause 205. Mr. Harris. (On clause 205) Mr. Jack Harris : Clause 205 is the introductory clause to the Immigration and Refugee Protection Act. The purpose of the act being amended is “to protect public health and safety and to maintain the security of Canadian society”.

We don't have any major objection to this particular amendment, but we do have a problem with the amendments to that act and we will deal with them as we go through. I'll just say at the outset that we're concerned that the Immigration and Refugee Protection Act changes were initially designed, or at least the government's intention was announced that the purpose of this was to protect applicants for work permits in Canada from potential exploitation.

Our view is that the way to protect foreign workers from exploitation is to ensure the laws within Canada that should be protecting workers ought to be robust and enforceable. The perceived wrong was really about a political response to something that happened in Toronto back in 2006, with the potential for issuing work permits to strippers—or exotic dancers, I think is the term that's used for certain people entering into Canada for that purpose—and the potential abuse of the law. The reality, of course, was that there were apparently only four permits given in the year this was raised as a political issue.

So this seems to us to be a political response. The real objection to the changes comes in the broad nature of the instructions that are essentially non-transparent and give untrammelled discretion to the minister to issue instructions in relation to this matter with respect to work permits—not only instructions that may be given by the minister, but instructions that would not necessarily be public. They won't be in regulations. They wouldn't be gazetted. They wouldn't be made public. And it could happen by the minister's own issuance of same.

The instructions still offer the opinion of the officer as to what the minister's instructions are, as opposed to an evidence-based decision. In our amendments we are also proposing some independent evaluation of those, as we have done in other sections of the act. I understand there may be some rulings about that, but we will be able to nevertheless demonstrate that what we seek is to improve this legislation. If it cannot be improved by adding some independent adjudication or clarity with respect to what instructions we're talking about here, we would therefore be opposed to them. Having said that, Mr.

Chair, we will support clause 205. I don't know if my colleagues want to say anything else.

(1555) The Chair : Thank you, Mr. Harris. I'm not sure you're right on the reason for the bill, but I think you're wrong on the date. I think it was somewhere in 2004 or 2005. Having heard the intervention, shall.... Mr. Cotler, I'm sorry. Hon. Irwin Cotler : I have a small point, Mr. Chairman. Maybe I shouldn't be staying up at night reading these things, but this clause starts the

section by modification to the Immigration and Refugee Act, and in particular the clause specifies the objectives of the act, which includes in (

h) to protect the health and safety of Canadians and to maintain the security of Canadian society. The change adds the word “public” before “health”, and I have no problem with that, but it removes the words “of Canadians”. So now it reads “to protect public health and safety”—removes the words “of Canadians”—“and to maintain the security of Canadian society”. Now it may be that the words “of Canadians” didn't mean anything initially and therefore their removal doesn't mean anything now, but I was struck by the fact that they were removed.

I am going to ask the witnesses if they could assist us in why they might have been removed, and maybe there's no consequence to the fact that they were. [ Translation ] Mr. Philippe Massé (Director, Temporary Resident Policy and Program, Department of Citizenship and Immigration) : Good afternoon. [ English ] The intent of the removal of “of Canadians” was to make the objective not specific to Canadians but to any person who would be present in Canada. So it's to actually make it more general, to include both Canadians and any foreign person who would be here temporarily. Hon. Irwin Cotler : Mr.

Chairman, I have no problem with that. I thought that's what it might have intended, but I think we should know, because that does change the scope of the act just by removing those two words. That's all. The Chair : Thank you, Mr. Cotler. Mr. Woodworth. Mr. Stephen Woodworth (Kitchener Centre, CPC) : Actually, I was going to attempt to answer Mr. Cotler's question. The officials have done that, and I agree that it does broaden the protection offered by the act. The Chair : Thank you. (Clause 205 agreed to) (On clause 206) The Chair: Mr. Harris, I believe you have an amendment, NDP-56. Mr. Jack Harris : Yes.

Amendment NDP-56 amends clause 206 on page 101, by replacing lines 8 to 10 with the following: the refusal is justified on the evidence and by the public policy considerations that are specified in the instructions given by the Minister. The Chair : Now, do you want to move the other two motions? If you do, I have some comments. Mr. Jack Harris : They are on the same clause, I guess, so perhaps I should do that, so that we can speak to all three of them, as we did yesterday when we were doing this.

NDP-57 adds after line 13 on page 101 the following: A foreign national who is refused authorization to work in Canada in accordance with this

section shall, on application, be given a hearing, conducted by an independent adjudicator appointed by the Minister, to determine the merits of the refusal and, if the adjudicator is satisfied that the refusal is not justified, he or she may authorize the foreign national to work or study in Canada if the conditions referred to in subsection (1.1) are met.

NDP-58 replaces line 19 with the following: Before instructions are given by the Minister in accordance with subsection (1.2), the Minister shall submit, for approval, any proposed instructions to the Standing Committee on Citizenship and Immigration of the House of Commons or, in the event that there is not a Standing Committee on Citizenship and Immigration, the appropriate committee of the House. The instructions, once approved, shall be published in And the follow-up is the Canada Gazette .

(1600) The Chair : Thank you, Mr. Harris. I do have a ruling for you on NDP-57.

Part 5 of Bill C-10 amends the Immigration and Refugee Protection Act to allow officers to refuse to authorize foreign nationals to work in Canada in some cases. This amendment seeks to amend the bill so that the minister would appoint an independent adjudicator who would conduct a hearing to determine the merits of a refusal.

The House of Commons Procedure and Practice , second edition, states at pages 767 and 768: Since an amendment may not infringe upon the financial initiative of the Crown, it is inadmissible if it imposes a charge on the public treasury, or if it extends the objects or purposes or relaxes the conditions and qualifications specified in the royal recommendation. In the opinion of the chair, the appointment of an independent adjudicator would entail expenses not currently provided for and would require a royal recommendation. Therefore, I rule the amendment inadmissible. That's on NDP-57. On NDP-58,

part 5 of Bill C-10 amends the Immigration and Refugee Protection Act to allow the Minister of Citizenship and Immigration to give instructions regarding considerations taken into account by officers when refusing to authorize foreign nationals to work in Canada. This amendment proposes to seek parliamentary approval for the instructions. As the House of Commons Procedure and Practice , second edition, states on page 766: An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill.

In the opinion of the chair, seeking approval of the instructions by a committee of the House is a new concept beyond the scope of Bill C-10. It is therefore inadmissible. Mr. Harris, do you wish to speak to NDP-56? Mr. Jack Harris : Yes, I do, Chair. I'll be speaking for about five minutes, and my colleague will speak after that. I'm going to put my stopwatch on and try to keep track of the time, although I know we're being a little bit flexible. I will point out that these amendments to the Refugee Protection Act were first introduced in 2007. That is the year I was referring to earlier.

You may be correct that the incidents we talked about happened earlier, in 2005. In 2006 the Honourable Diane Finley, who was then Minister of Citizenship and Immigration, announced the amendments to the act to help prevent, as she said, vulnerable foreign workers, including strippers, from being exploited or abused. From the background information I have there were actually only four individuals in 2006 who were given permits to enter Canada as exotic dancers. So I don't know how big a problem we're trying to identify here to deal with.

If it's specific to that, the wording itself is extremely broad, if we consider that as being the stated purpose of the legislation. We have a concern here that the government has used this as an opportunity to significantly broaden the powers of the minister, as well as the immigration officials who have to make determinations. The Canadian Bar Association, for example, stated that the undefined scope of the legislation and the potential applicability to any work permit or any situation is a matter of concern.

The conflict between the public statement focus on exotic dancers and trafficked persons and the unrestrained language of the legislation is an obvious incongruity that begs explanation. A whole series of questions are outlined in the brief of the Canadian Bar Association as concerns that the minister is being given an opportunity to give very broad instructions that will not be seen by anyone before they are put into effect. They do get published eventually in the Canada Gazette , but they're not subject to any parliamentary scrutiny beforehand.

Hence there's our suggestion in another amendment, which was ruled out of order, that this be given the appropriate parliamentary oversight. As I said at the outset in talking about clause 205, if the purpose is to protect people from being exploited in Canada, the laws of Canada should protect them. We want to see greater protection for workers. People who come to Canada to work in general are often in vulnerable industries. Exotic dancers are obviously the clear exception to this, but there are many industries, whether it be the textile industry....

Sometimes it's a situation where a family might have them come to work and they don't necessarily have language skills. There is an awful lot of opportunity for vulnerable workers to be exploited within Canada. The solution is not to prevent workers from coming. They may be necessary workers in Canada.

If the working conditions themselves are potentially exploitive or bad, the answer is that there has to be better protection for workers by having strong Canadian laws to ensure that workplaces are not unsafe; that workers are not able to be exploited; and that the enforcement is sufficient to ensure that people cannot and will not be exploited if they come to Canada to work.

(1605) So we don't believe in the broad nature of this. We don't think the minister ought to be given this broad power to issue instructions that then become a separate code under which the opinion of the immigration officer is given effect. My colleague Madam Boivin would like to use the remainder of the time. The Chair : I believe there are about three minutes left. [ Translation ] Ms. Françoise Boivin : That is fine, Mr. Chair. [ English ] The Chair : You used up two of them in your opening. [ Translation ] Ms. Françoise Boivin : That is fine, since in any event Mr.

Harris has addressed the main elements of the objections that prompted us to propose this amendment. Once again, I want to clarify something. Sometimes, people think we introduce a few amendments just for the joy of introducing them. But when we look at what the amendment adds and combine it with the

section as proposed by the government, it gives the following text: "Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if the refusal is justified on the evidence and by the public policy considerations that are specified in the instructions given by the Minister." The only thing we are adding is from the standpoint of natural justice and with that objective. I think that in Canada's characteristics, questions of natural justice are still important.

We are simply adding the worlds "on the evidence and by the public policy considerations", this is the only addition to this clause we are proposing. It seems self-evident to me. When a decision is to be made in a situation like this, in addition to public policy, the evidence has to be included in the instructions given by the Minister. Therefore, in terms of the evidence needed under clause 206, there has to be... Once again, this is not something cosmic, it does not completely change the system, it will not shake Canada to its foundations.

If we are really going to protect exploited people, we want a hearing to be held. It has to be based on the evidence that would be presented to the officer who is to make the decision. That is self-evident. I am also sorry that we could not be talking about an independent adjudicator. It seems that this would change the effect of the bill. For an officer to make a decision that is then reassessed by an officer in the same department seems to me to be a somewhat redundant and not particularly transparent situation.

So in other words, I bow to the decision by the committee chair, who I would also note is doing a good job. It is not easy to do what we are doing here and it is less easy still for the committee chair. This is not a huge amendment. It is being presented simply to provide clarification. It is covered by the completely reasonable principles that apply to administrative law and fairness. (1610) [ English ] The Chair : Thank you, Madam Boivin. (Amendment negatived) (Clause 206 agreed to) The Chair : On clause 207, I do not see any amendments. Mr. Harris. Mr.

Jack Harris : Clause 207 relates once again to the instructions. The Chair : I believe we will suspend now that the bells are ringing. We will come back to clause 207 as soon as the vote is finished. (1610)

(1700) The Chair : We'll resume the committee meeting now at clause 207. Mr. Harris, the chair had recognized you. (On clause 207) Mr. Jack Harris : Thank you, Mr. Chairman. We are now dealing with clause 207, which also talks about the issue of instructions, so I'll speak to that more broadly. We do have, as I indicated, a great number of problems with that. The instructions, as to what's going to happen here and the scheme that's established using these instructions...it makes it very difficult for the public to examine it and to understand what's going on.

The Canadian Bar Association said they wrote the ministry looking for an example of the proposed instructions, or the kind of criteria that would be used to instruct officers. They received no example in response, and they were very concerned about that. Again, they said what I said earlier. The focus should be on ensuring that working conditions for newcomers in Canada are appropriate, safe, and non-exploitative, and ensuring that the criminal laws are strictly enforced against those who exploit vulnerable people.

We're talking here about the exploitation of women, perhaps in keeping with some of the other concerns about women being exploited for sexual purposes. But again, there were expert witnesses, people who provided testimony on previous occasions. For example, at the Citizenship and Immigration Committee on January 30, 2008, Professor Leslie Ann Jeffrey of the University of New Brunswick stated as follows: It is very problematic that Canada would choose to address the issue of potential exploitation of migrant labourers by attempting to stop their legal migration rather than addressing the conditions of work.

Trafficking most often occurs in precarious forms of labour that are unprotected by labour laws, government oversight, and union organization. The fact that they're working in vulnerable sectors is what gives rise to the concern here, and the response.... Instead of depriving these migrant workers of an opportunity to work in Canada—they may be in vulnerable sectors, but they're also sectors where it's very difficult to get Canadian workers.

That's why they're given work permits in the first place, because these workers are necessary to the economy or to the enterprise that is looking for them, and because they wouldn't qualify if Canadian workers could be found to fill those jobs. It is an opportunity for migrant workers to have the chance to enter Canada for work purposes—and we're talking about legal migration. In order to fix the problems, the focus should be on fixing the labour laws themselves. There was another concern raised by Ms.

Janet Dench, who was the executive director of the Canadian Council for Refugees and also testified on the previous iteration of this, Bill C-17 . On January 30, 2008, at the same meeting of the Citizenship and Immigration Committee, and she said: Not only does [this legislation] fail to protect the rights of trafficked persons already here in Canada, but furthermore its approach is condescending and moralistic. It empowers visa officers to decide which women should be kept out of Canada for their own good.

Once again, the concern here was raised by the Canadian Council for Refugees, which, through another witness on the same day, said that the main objective of anti-trafficking legislation must be to protect the human rights of trafficked persons, and that the bill doesn't do that. There's a whole series of aspects of this bill that we are trying to improve upon by making amendments, some of which have unfortunately been ruled out of order. But the point is that we don't believe that this bill adequately addresses those concerns.

It fails to provide an opportunity for parliamentary oversight of the instructions in order to be able to determine through parliamentary debate—committee or otherwise—what the effect of those instructions could be, and frankly, it fails to be concerned that the application of this particular provision is actually aimed at the objectives that were proposed, and not used for some other reason, as raised in the concerns of the Canadian Bar Association—the unfocused and awfully broad statement of whatever instructions under public policy that the minister might choose to give.

(1705) Those are my comments, Mr. Chair. The Chair : Ms. Boivin. [ Translation ] Ms. Françoise Boivin : Similarly, I was struck by what appears in the brief from the Canadian Bar Association. The Bar Association is clear on this point. You will also note that this is not the first time the government has addressed the subject.

The brief says: The government's Press Release and Backgrounder dated May 16, 2007 ("Canada's New Government Introduces Amendments to Deny Work Permits to Foreign Strippers"), indicates that the intention of the Bill is to prevent entry of "strippers" (exotic dancers) and other "vulnerable" applicants, including "low skilled labourers as well as potential victims of human trafficking." "The instructions would be based on clear public policy objectives and evidence that outlines the risk of exploitation [foreign worker applicants] face." As the Canadian Bar Association so aptly puts it: Despite the government's stated purpose for introducing the Bill, neither exotic dancers, nor victims of human trafficking, nor low skilled workers are mentioned in its terms.

The Bill authorizes an officer to refuse an otherwise valid work permit to any worker , in any occupation or industry, subject only to (as yet, undisclosed) Minister's instructions. Foreign worker applicants do not exist in a vacuum. For every applicant there is a corresponding employer in Canada who has offered employment and who will be affected by refusal of the work permit. In most cases the employer has applied to Human Resources and Social Development Canada (HRSDC) for a Labour Market Opinion (LMO). The Canadian Bar Association's concerns are clear and I agree with them.

I think this clause may seem fine on paper. However, it leaves so many vague and nebulous points that it will be extremely difficult to be sure that the objects of this bill will be achieved. Those were the comments I had at this stage. [ English ] The Chair : Thank you, Ms. Boivin. (Clause 207 agreed to on division) (On clause 208— Order in council )

(1710) The Chair : Mr. Cotler, you have an amendment here. If you'll introduce it, I will give you a ruling on it. Hon. Irwin Cotler : Thank you, Mr. Chairman. My amendment is really of a perspective, precautionary character. It basically seeks to recommend the following: 209. Before the coming into force of this Act, the Minister of Justice must (

a) conduct a review of the Act to ensure it is not inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and to recommend that any provisions that may be at risk of breaching the Charter be amended or repealed, as the case may be; and (

b) initiate discussions with the provincial and territorial governments to (

i) address the issue of prison overcrowding, and I might add, parenthetically, Mr. Chairman, that yesterday the Commissioner of Corrections raised the issue of prison overcrowding and double-bunking as a potential constitutional concern. (ii) ensure that the implementation of the Act is conducted in the most cost-effective and cooperative manner possible. And the final part of this amendment, Mr. Chairman, recommends that a crime reduction board be established...with a mandate to (

a) promote cost-effective ways to reduce crime, prevent victimization, enhance community safety and strengthen services for and rights of victims of crime; (

b) gather, analyze and disseminate information about cost-effective ways to prevent crime and improve services for victims of crime; (

c) develop national standards of practice and provide training in the area of crime prevention and of services for and rights of victims of crime; and (

d) collaborate with the provincial and territorial governments to provide funding to local governments and community organizations in the area of crime prevention and of services for and rights of victims of crime. Mr. Chairman, this is really in accordance with the overall objectives and purposes of the act that relate to matters of crime prevention, services to victims of crime, reduction of crime, and the like, and it borrows from a recommendation of one of our witnesses, Professor Irvin Waller, that such a board be established.

And in the matter of asking the minister to revisit the legislation to see if it comports with the Canadian Charter of Rights and Freedoms, as a former minister I understand that the minister did this initially. I'm just saying that in light of witness testimony, I made that recommendation. The Chair : I have a ruling for you with respect to your motion, sir. The amendment attempts to introduce the concept of a crime reduction board that would review the act.

As House of Commons Procedure and Practice , second edition, states on page 766: An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill. In the opinion of the chair, the introduction of a crime reduction board is a new concept that is beyond the scope of Bill C-10 . Furthermore, the amendment would entail expenses not already provided for and would require royal recommendation. Therefore, the amendment is inadmissible. But you're welcome to debate the amendment. Hon. Irwin Cotler : I appreciate what you've said, Mr.

Chairman. I anticipated that you might indeed say that, so I wanted to put this recommendation on the record. I'd like the government to consider it because they're the ones who have the spending power and they can authorize such an initiative. As I said, this came from the witness testimony of Professor Irvin Waller and others. I think it dovetails with the overall objectives and purposes of Bill C-10 .

I believe it would serve the objectives and the interests of Bill C-10 regarding crime prevention, services to victims of crime, federal-provincial cooperation, and a more effective and cost-efficient mode of proceeding. At the end of the day, this would be a positive initiative the government might seek to initiate, since I realize in terms of my initiatives I'm limited in doing so. The Chair : Thank you, Mr. Cotler. Is there any further discussion? Mr. Harris. Mr. Jack Harris : This is clause 209 we're now debating, is it? The Chair : Clause 208. Mr. Jack Harris : Oh, there is no clause 209.

The proposed amendment to clause 208 is to add new clauses 209 and 210. The Chair : Yes. Mr. Jack Harris : Okay. Well, I'll refer to clause 208 and use that as an opportunity. It talks about the coming into force of this particular part, which is really about immigration and refugee protection. There is an opportunity, of course, to refer to the coming into force of this part of the act, and the act itself is something that concerns us and concerns me. I'm glad to hear that Mr. Cotler has discussed the possibility of a crime reduction board of Canada, as proposed by Professor Waller.

We do know, of course, that it would require the government to take action on that. But you know, in the context of this whole legislation and what we have before our committee, and the concerns often expressed by the government about victims, it strikes me that a government concerned about that would look seriously at, and would want to implement, a crime reduction board, because the whole purpose of a crime reduction board is to prevent the creation of new victims by the reduction of crime in our country.

So in fact the provisions, and the idea of these provisions, are to promote cost-effective ways to reduce crime; prevent victimization; provide services for victims and for the rights of victims; and to gather, analyze, and disseminate information so that decisions being made in the future would be made based on evidence and not simply relying on concerns that might be raised, which may be popular in some quarters, saying, we're going to be tough on crime.

But the evidence will show—and we'll be having an opportunity to debate that shortly—and almost all the evidence shows, that the methods proposed by this legislation aren't actually effective in doing that. So a crime reduction board for Canada would provide a mechanism—and to do it through analysis, research, and cooperation with provinces and territories—to find effective ways of doing that. Because of our concerns about the changes being made to

part 5 of the Immigration and Refugee Protection Act and the amendments proposed, we will be voting against that and would not wish to see that

part 5 be implemented.

(1715) The Chair : Thank you, Mr. Harris. (Clause 208 agreed to) The Chair: Now we revert back to a few clauses that we had left to deal with tonight, beginning with clause 39. The NDP have a number of amendments and the Liberal party has one. Mr. Harris, please begin. (On clause 39) Mr. Jack Harris : We're now, of course, not limited by time here, so we'll be able to be a little bit more expansive in expressing our concerns, not only about the specific clause or amendment, but about the aspects of the bill in general. The first amendment proposes that Bill C-10, in clause 39, be amended by replacing line 3 on page 22 with the following: in

Schedule I, is guilty of an indictable First of all, I should say that these amendments deal with provisions of the Controlled Drugs and Substances Act, and on page 22, clause 39 replaces paragraph 5(3)(

a) of the Controlled Drugs and Substances Act with a new paragraph. We are seeking to change the first part of that, which is (

a) subject to paragraph (a.1), if the subject matter of the offence is a substance included in

Schedule I or II, is guilty of an...offence and liable to imprisonment for life Then we go on to talk about mandatory minimum sentences. The first amendment relates to the deletion of

schedule II, so that the paragraph would deal with substances included in

schedule I but would leave out

schedule II. The reason for that is that

schedule II relates to cannabis and its derivatives, and we feel that by including all of these in the one section, we are treating drugs that are less serious and less harmful and less subject to the concerns that are raised often in society, in terms of addictions and harm to society and harm to individuals, along with the other more serious drugs or narcotics that are contained in

schedule I. That's actually a concern in a lot of the provisions, because when we read down through the entirety of clause 39, there are significant penalties for possession and for what's called trafficking, and the definition thereof, along with all of the consequences in terms of mandatory minimum sentences. It may make more sense to perhaps put all these amendments on the table, Mr. Chair. Is that a possibility for one section?

(1720) The Chair : Well, if you wish to move amendment NDP-5, I'll give you a ruling on that. Mr. Jack Harris : Okay, well, let's take them as one. Amendment NDP-4 is moved. Now I'll move amendment NDP-5. The Chair : Okay. Mr. Jack Harris : Amendment NDP-5 deals with lines 5 to 36 on page 22. It's a whole

section having to do with minimum punishment of imprisonment for a term of one year for certain offences. We seek to replace that with the following: and the court shall consider the following factors, in addition to those set out in

section 10: —this refers to aggravating factors— (

i) whether the person committed the offence for the benefit of, at the direction of or in association with a criminal organization, as defined in subsection 467.1 (1) of the Criminal Code , (ii) whether the person committed the offence in or near a school or on or near school grounds, or (iii) whether the person committed the offence in a prison, as defined in

section 2 of the Criminal Code , or on its grounds; So it seeks to make the qualifications for mandatory minimums...that the court would take into consideration as aggravating factors, instead of subject to the mandatory minimums. The Chair : I'll give you the ruling from the chair. Clause 39 of Bill C-10 amends the Controlled Drugs and Substances Act to provide for minimum penalties for drug offences related to trafficking. This amendment proposes to allow the court to consider certain factors while imposing a sentence, instead of imposing a minimum punishment provided for in the clause.

As the House of Commons Procedure and Practice , second edition, states on page 766: An amendment to a bill that was referred to a committee after second reading is out of order if it is beyond the scope and principle of the bill. In the opinion of the chair, changing the intent of the clause is contrary to the principle of Bill C-10 and is therefore inadmissible. Mr. Jack Harris : Thank you for your ruling, sir. I think having put the amendment, we wish to make our intention clear as to how we would approach these matters.

Amendment NDP-6 reads that Bill C-10, in clause 39, be amended by deleting lines 18 to 22 on page 22. This deals with previous offences within the previous 10 years. Is that in order? The Chair : That's fine, but if that one is adopted, then your NDP-7.... Mr. Jack Harris : Okay. I'll read NDP-7 anyway, and I think that will become a function of the votes later on. The Chair : That's fine. Mr. Jack Harris : If that one passes, we'll be happy. NDP-7 was an alternative. We would change line 22 with the following: “previous two years, or”. That takes us to our first seven—those seven amendments.

The next one would be L-16, which I won't read, but we also have provisions to change in the event of a failure of our previous amendments. The amendments that relate to a school are, we think, far too broad and vague, and we would seek to reduce those. But I think I will wait until we debate Mr. Cotler's amendment L-16 before we get to ours. So I'll just leave those there for now. I want to talk about why we made these changes, and about mandatory minimum sentences in general, because the first

section here deals with mandatory minimum sentences of one year, and of two years in the case of certain offences, and five years less a day in other sentences. So the principle of mandatory minimum sentences can be discussed in relation to this particular section, and other sections as well. I think one of the functions of the compromise agreement we made last Thursday was to allow for no restrictions on debate of mandatory minimum sentences, and these particular sections of the bill contain quite a few of them. We're very concerned about this move being made by government.

We don't understand the rationale for it, or whatever rationale has been offered is not supported by any evidence that we've seen. In fact, the vast majority of what we heard about mandatory minimum sentences from the witnesses was pretty clearly opposed to the value of mandatory minimum sentences. We did hear from the Canadian Bar Association on this. They only had a brief five minutes to make their presentation, and they didn't focus exclusively on this. But I do want to focus on this aspect of it because I think their comments deserve significant consideration by this committee.

We had the Canadian Bar Association testify before us, and I think it's worth putting on the record that the Canadian Bar Association consists of lawyers across the country—I guess Canada outside of Quebec, because there's a separate organization in Québec called the Barreau du Québec, which also appeared before our committee and had a brief. I'll make some references to that as well. I know my colleague, Madam Boivin, who is very familiar with the Barreau and their concerns and their views, and with the operations of the Quebec justice system and the Quebec bar, would no doubt wish to talk about this as well.

But if I may focus, first of all, on the Canadian Bar Association, when they come before committees of this House, they don't come as representatives of one

section of the bar or the other. In other words, they're not just defence counsel and they're not just prosecutors; they represent the association as a whole. They do have a criminal justice section, and the criminal justice

section is composed of those lawyers who have practised in the criminal bar. They represent prosecutors, they represent defence counsel, and they work very diligently to present a balanced view of the law to committees such as ours.

In my experience as a member—a former member, I guess now, probably a lapsed member at this point of the Canadian Bar Association, but a member for many years—of the Canadian Bar Association, and also having seen their briefs and attended some of their conventions, they're very determined to put forth a very balanced view of the law, particularly when it comes to criminal law, because they do represent both sides of the street, as it were, acting both in the interest of the rule of law and in the interest of justice. So when they speak, they speak with a voice that I think ought to be listened to.

(1725) They stated their comments about their concerns. In this case, they were reiterating their concerns about the amendments to the Controlled Drugs and Substances Act contained in Bill C-10 . They said that public safety concerns could be better met with existing legislative tools, and that current law was adequate to meet the public safety concerns. They don't believe the bill would be effective.

They believe it would be costly, would add to strains on the administration of justice, could create unjust and disproportionate sentences, and would ultimately not achieve its intended goal of greater public safety.

That's a fairly broad statement that leads one to ask why we are bringing in this legislation if the major group knowledgeable about the laws in Canada—those who appear in the courts daily representing the crown and accused persons—are saying that the tools are already there; that these changes are ineffective, costly, and would put strains on the administration of justice; and that they would create unjust sentences. That's a fairly strong condemnation of legislation that's before us now. I spoke today about the thousands of people who are concerned about this bill.

I have received in excess of 15,000 letters from Canadians across the country concerned about Bill C-10 , and a lot of the concern has to do with the greater level of incarceration that will result from the mandatory minimum sentences, many of which are contained in the Controlled Drugs and Substances Act provisions. We have comments from the Canadian Bar Association to the effect that these mandatory minimums do not advance the goals of deterrence, particularly in cases of drug offences. Some people think that by increasing sentences you're actually going to deter criminals from committing crimes.

The CBA opposes the use of mandatory minimums in this situation because they don't believe it advances the goal of deterrence. They say that international social science research makes this clear. They cite the government in the Department of Justice's 1990 book, Directions for Reform , which says that the “evidence shows that long periods served in prison increase the chance that the offender will offend again.... In the end, public security is diminished rather than increased if we 'throw away the key'”. That's a justice department book.

Granted, it's somewhat dated, but that's been the consistent message of evidence and research throughout the years since. The second problem is that mandatory minimums do not target the most egregious or dangerous offenders, who will, because of the nature of these criminals, already be subject to stiff sentences because they're committing more serious crimes. Often the less culpable offenders are caught by the mandatory sentences and subject to extremely lengthy terms of imprisonment. This is particularly true in the drug situation, where we're picking up first-time offenders engaged in drug trafficking.

They are the small potatoes. They're the ones who get hit with the mandatory minimum sentences. They're not the big players. You end up filling up the prisons, driving up the market price of drugs, and allowing the bigger players--organized crime, the criminal gangs--to take control over this situation. You end up filling the prisons with these other people.

(1730) The other thing they say is that mandatory minimums: have a disproportionate impact on those minority groups who already suffer from poverty and deprivation. In Canada, this will affect aboriginal communities, a population already grossly over represented in penitentiaries. Aboriginal people represent more than one in five admissions to Correctional Services, as of 2004-05, and it's going to disproportionately affect them, according to the submission of the Canadian Bar Association.

The other important objection that's been put forward is that the legislative changes to the Controlled Drugs and Substances Act will: subvert important aspects of Canada's sentencing regime, including principles of proportionality and individualization, and reliance on judges to impose a just sentence after hearing all facts. What we have then, according to the Canadian Bar Association, is a “complicated system of different escalating” mandatory minimums, depending on a whole series of complicated factors.

They believe that because of this, the complexity of the existing sentencing principles would “increase the court time required for sentencing hearings” and “[f]ewer accused would be likely to plead guilty”, because there's no incentive to do so. Often, of course, guilty pleas are related to negotiations about how an offender is treated. If there's no advantage to a guilty plea, such as a potential reduction in sentence by a sentencing judge, because that's considered a mitigating factor for sentencing.... If you plead guilty, the judge takes that into consideration.

You're saving the court's time by admitting your guilt and all of the other things that go with a guilty plea. That provides an incentive to plead guilty. As a practitioner of criminal law, I know, and as anybody who's done it knows, many cases are resolved by avoiding a trial through a guilty plea, as happened a couple of weeks ago in the case of the Conservative Party of Canada and the Elections Act. The guilty plea avoided a trial in that case. That's not an uncommon thing at all.

In fact, the operation of our courts and the administration of justice throughout Canada depend on the prosecutor and the crown counsel developing an understanding as to what an appropriate sentence would be. It has to go before a court, for example, for approval, but it does provide an incentive to have matters go to the courts. If every matter that went to the court had to go to trial, the cost of the administration of justice would be through the roof. The Canadian bar says, of course: Fewer accused would likely plead guilty, adding to current strains on court resources.

They believe: that the Bill would often conflict with existing common law and statutory principles of sentencing, such that sentences could be excessive, harsh and unfair in some cases. I think that's a legitimate and serious concern and a reason why this type of sentence should be avoided, if at all possible. There's no indication that they would do any good in relation to deterrence, in this particular case, or in the reduction in crime.

Many of the factors listed as requiring or leading to a mandatory minimum sentence in clause 39 and in others are already aggravating factors that would be considered on sentencing. They're already required to be considered by the court in accordance with

section 718 of the Criminal Code, which talks about sentencing principles. In terms of an individual sentence and the role of the judge, they're already required to be taken into consideration.

(1735) Many of these provisions are overlapping. In some instances, the bar association said the combined operation of the provisions will result in a sentence that's unfit or offends

section 12 of the Charter, and a sentencing judge would have no discretion to address those problems because of the mandatory minimum requirements. These mandatory minimums would be required to be applied even though the circumstances of the offence and the degrees of responsibility vary quite significantly. In these provisions in clauses 39, 40, and 41, we have arbitrary factors that don't relate to the degree of responsibility or the circumstances of the offences, and they don't meaningfully distinguish between the levels of culpability.

Clearly, if we're talking about the general notion of the punishment fitting the crime, I think everybody in the country, except people with a perverted sense of justice, would say yes, the punishment should fit the crime. Well, how do you achieve that? Well, we achieve it for the most

part in our justice system by hiring and appointing competent judges to use their knowledge, ability, and experience to apply the circumstances of the offence and the circumstances of the offender, to take into consideration the factors that are laid out in the Criminal Code as to what would be aggravating factors, to consider the mitigating factors that might relate to an individual, and come up with an appropriate sentence. Here we have what the Canadian Bar Association calls arbitrary factors.

For example, when we're talking about the production of marijuana, the mandatory minimum sentences are geared to the number of plants that are produced. If they're less than 201 and for the purposes of trafficking, the minimum mandatory sentence would be six months, but if less than 201 for the purposes of trafficking and any of the aggravating factors, it would be nine months. If more than 200, but less than 500, the mandatory minimum would be one year. If there are any aggravating offences, it would be 18 months. So there are all sorts of anomalies here that say, well, the number of plants makes the difference.

If it's over 500, it would be two years and, if there are any aggravating factors, it would be three years. Then they come out by saying: In our view, it is contrary to common sense for someone responsible for a 200-plant grow operation to receive [six months] while someone responsible for 201...[would] be subject to twice that sentence. This is the arbitrary nature of it. How can these mandatory minimums that we're setting out here as some kind of a complicated code actually be fair? Is someone who has 201 plants more culpable or blameworthy than someone with 200?

How does that make a difference in terms of a cut-off? It can only be considered arbitrary. The actual factors that have to do with culpability and what's aggravating or not would certainly be of the nature....

Other factors that would be taken into consideration with respect to the individual, whether the individual was someone engaged in a commercial operation for profit, whether he or she was someone who was growing it for medical purposes even though they didn't have a permit, what the factors were involved with the individual, whether it was a commercial operation that had been going on for years—all of these are factors that could make it more serious or less serious. The concern is that we're removing judicial discretion to determine an appropriate sentence.

We will talk, perhaps, about judicial discretion a little later, but I want to set out what the Canadian Bar Association talked about. These are lawyers who have practised for many years in criminal justice, and they're saying that what this legislation does is remove discretion from sentencing judges to effectively determine which sentence can best balance all fundamental objectives of sentencing.

(1740) There are a number of objectives of sentencing—not just one, and not just deterrence. There is individual deterrence; general deterrence; the protection of society; rehabilitation; and whether or not there are aggravating factors, for example, if someone is a repeat offender, etc. All of these things are taken into consideration by a sentencing judge.

If you prohibit judges from exercising discretion to determine an appropriate sentence for an offender, it's contrary to the spirit and letter of a large body of jurisprudence that recognizes the unique position of sentencing judges in assessing and determining the most appropriate sentence in individual cases. That says a lot, because it says that this legislation is departing from the experience we've had in our criminal justice system based on precedent—experience, principle, and the body of jurisprudence, which is case after case.

If there are aggravating factors that relate to the offender or the offence, the crown prosecutor is there. His or her job is to make sure the judge is aware of all of those things that would lead a judge to consider a higher sentence if it were appropriate in the circumstances. The defence counsel's role is to make sure the judge is aware of all the mitigating factors that ought to be taken into consideration or are urged to be taken into consideration. The Canadian bar says there is a good reason for conferring discretion on the judge who is charged with imposing a fit sentence.

He has heard the particular circumstances of the offence and the offender and is best able to craft a sentence that will balance all the goals of sentencing. If the evidence demonstrates that the offender should be subject to a lengthy prison sentence, the crown will have brought that fact to the judge's attention. The judge is also best equipped to assess what will address the needs and circumstances of the particular community where a crime occurred.

If there's a particular place in the country where a certain crime is rampant and control of that crime by a stiff sentence is appropriate, you will see a judge impose a stiff sentence and say in his or her sentencing determination that it is a matter of community and public concern to a huge extent in this community, and deterrence is more important as a result than many of the other factors, because we need to send a message to likeminded persons that this is offensive to society. That's the kind of role a judge plays in a community, by crafting a sentence that's related to the individual and the community.

The Canadian bar says that in their experience, repeat offenders and serious drug traffickers already receive significantly elevated sentences, even above the proposed mandatory minimum sentences. This bill would remove the discretion that the sentencing judge requires to be fair, to deter criminals, and to rehabilitate offenders if there is a real prospect of doing so. The other aspect of this is that our justice system has the checks and balances of an appeal process.

Where a sentence imposed at trial is demonstrably unfit or an error of law has occurred, an appellate judge can adjust the sentence accordingly, taking into account the principles of sentencing. This legislation would not only limit a judge in devising an appropriate sentence; it would also limit the scope of an appeals court where a clearly unfit sentence has been imposed. The bar association said that in their view the formulaic approach in Bill C-15 would lead to real injustice in certain situations, and judges will be unable to fulfill their role as judges to address that consideration.

That is a compelling argument as to the role of the judges and minimum sentences, and how they fundamentally change our approach to criminal justice in Canada.

(1745) The Criminal Code is an important document here. It's not simply a matter of.... The Criminal Code of Canada doesn't just have offences and penalties; it outlines the principles of the criminal law and also the principles of sentencing, which require a judge. At the time of sentencing it requires a judge to consider and weigh all competing considerations. Well, they're not going to be able to do that because that weighing process is going to be constrained by what this bill provides. The approach accords with a balanced and measured sentencing regime, and, as the CBA puts forth, with common sense.

The emphasis on deterrence over all other sentencing principles is misplaced, according to them. They quote a recent study by the Canada Safety Council, in 2005, by Professors David Paciocco and Julian Roberts, as follows: There are few, if any, who would deny a general deterrence affect of the criminal law, but recent studies confirm what has been long believed by most criminologists that there is little demonstrable correlation between the severity of sentences imposed and the volume of offences recorded.

The greatest impact on patterns of offending is publicizing apprehension rates or increasing the prospect of being caught. That's pretty interesting because that accords with many of the things the NDP has been saying about the need for enforcement in Canada by greater policing assistance to communities. If you intend to deter crime, what works better than increasing prison sentences and the costs that go with that are offenders knowing that the likelihood of being apprehended is high; in other words, the chances of being caught are great.

That will be a far more effective deterrent, and the greatest impact on the patterns of offending is based on that. The

section of the code that I refer to,

section 718, requires as well that the particular situation of aboriginal offenders, for example, be considered at sentencing. If a less restrictive sanction would adequately protect society or where the special circumstances of aboriginal offenders should be recognized, increased sentences and minimum mandatory sentences would conflict with that principle. The Supreme Court of Canada has also recognized that incarceration should generally be used as a penal sanction of last resort and that it may be less appropriate or useful in the case of aboriginal offenders.

Well, that principle is thrown out the window in the case of aboriginal offenders, and as stated earlier by the Canadian Bar Association in their brief, the mandatory minimum offences will disproportionately affect aboriginal people. The other thing they point out in their brief is that in the case of aboriginal people, penitentiary terms are generally served far from communities and families, going against efforts to promote eventual reintegration or rehabilitation of offenders. These are other important sentencing principles.

They point out that local judges would have no option but to sentence an offender from Nunavut, for example, to a minimum mandatory sentence in Ontario, where offenders from the territory are routinely sent. We're seeing the effect of these mandatory minimums being disproportionate in the cases of aboriginal people. This is contrary to the principles of sentencing, contrary to fairness, contrary to what the Supreme Court of Canada has said, and contrary to the ability to rehabilitate and reintegrate aboriginal offenders.

(1750) An offender from Nunavut could be in Ontario, far away from his family, far away from being able to have visits that would keep him in touch with his community and family, and lead to the rehabilitative function, which is an important part of a sentence. These are important reasons why mandatory minimums are inappropriate in these drug provisions in subclause 39(1). Do we have bells again?

(1755) The Chair : Bells are ringing, yes. Mr. Jack Harris : Unfortunately, I was near the end of what the Canadian Bar Association had to offer, but I'll complete that when we come back. The Chair : We will suspend until after the vote. You might want to mark it, Mr. Harris— Mr. Jack Harris : Yes. The Chair : —so you don't have to go back. Mr. Jack Harris : I wouldn't want to repeat myself. And we have other colleagues who have something to say. Mr. Brent Rathgeber (Edmonton—St. Albert, CPC) : It's too late for that. The Chair : The meeting is suspended until after the vote. (1755)

(1920) The Chair : I call the meeting back to order now that the votes are completed. Mr. Harris, you had the floor. Mr. Jack Harris : Thank you, Chair. I'll just continue for a brief while on this intervention. I just want to assure everyone that the purpose of my lengthy speech is not to initiate what might be considered a filibuster, but it is to put, as completely as possible, the arguments on the issue of mandatory minimum sentences in as thorough a way possible. We have a number of individual amendments that will specifically deal with aspects of it.

I will be limiting myself, for the most part, to explaining our amendments and why they are there, and having the vote. It's not intended to prolong, but rather to be efficient in ensuring that the bulk of the arguments are presented in a holistic way. I have emphasized the Canadian Bar Association brief.

We've had a lot of other representations about the concerns on mandatory minimum sentences, but it has a very thorough analysis of this, and it comes, of course, from a very highly regarded group of lawyers—both defence and crown prosecutors from across the country, who are part of the Canadian Bar Association criminal justice section. Because they contain both, they can't be accused of bias on the part of one side of the law or the other. They are concerned about the rule of law.

They're concerned about the way our justice system works, and they're concerned that the principles contained in our sentencing laws and the current reliance on precedent, judges, and the individualization of sentencing is extremely important. They also point out things like the following: The Criminal Code contains a statutory acknowledgement of the principal of restraint, stating that the purpose of sentencing is to separate offenders from society only where necessary.

And that the Criminal Code states: ...proportionality is the fundamental principle of sentencing, and that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Proportionality reflects the delicate balance that must be achieved in fashioning such a just sentence.

This is something we'll talk about a little later when we get to the drug courts; they also point out that, “In the area of drug offences, the public is often best protected through harm reduction strategies that encourage rehabilitation.” They comment that participation in the Drug Treatment Court shouldn't be as restricted as it is in the proposals that are currently in the amendments to the act. In their view, “it should be available to all offenders for whom rehabilitative considerations are appropriate.” These are important considerations, and I will say I have two other pieces concerning this.

One is the representation to the Standing Committee on Public Safety and National Security in March of this year from the former U.S. congressman, Mr. Asa Hutchinson, who was also—and I'm reading from the Hansard of the Standing Committee on Public Safety and National Security for March 3, 2011. Mr. Hutchinson was introduced as a former U.S. congressman who appeared before the committee having represented the State of Arkansas. But he said that he also served in the George W. Bush administration as head of the U.S. Drug Enforcement Administration, or the DEA.

He was then undersecretary at the Department of Homeland Security, with a long career in law enforcement: ...leading large agencies, as well as being a trial prosecutor as a former U.S. attorney in the 1980s during the administration of Ronald Reagan, which was really the beginning of our “get tough on crime and drugs” in the United States. He was before the public safety committee to talk about how he had signed onto what they called in the U.S. the “right on crime” initiative, led by a group of conservatives in the United States who supported a re-evaluation of their nation's incarceration policies.

He said, “So I'm only here to tell you a little bit about the American experience” and to provide some insights into what they did in the United States.

(1925) He said that what motivated him to sign to this “right on crime” initiative was two principles. One was fairness and one was the long-time conservative principle of cost to the taxpayers. These were motivating forces in his getting involved in that. And he talked about the incarceration rate in the United States, which has 5% of the world's population but 23% of the world's reported prisoners, with staggering costs of incarceration. The conservative leaders supported the rehabilitation both at the federal and the state level, and they proposed reforms to the mandatory minimum sentences, to drug sentences.

And they initiated reforms that were expected to save about $2 billion in prison costs over five years, most of it going into community treatment for the mentally ill and low-level drug addicts and their treatment. Crime had dropped from 10% in 2004, the year before the reforms, through to 2009. So we talked about a lot of that. That was part of the U.S. experience that we're hearing about. We're hearing about Texas; we're hearing about other actions in the United States that are important.

The other item that I want to bring to your attention is connected to cost, but it's also connected to human rights and to the costs of prisons and the conditions in prisons. There was a story yesterday on the CBC news that talking about the double-bunking and segregation cells in British Columbia and Manitoba, a practice that was supposed to be abolished. But they show that in at least two prisons, one in Manitoba and one in B.C., and in a number of Ontario prisons, mandatory assessments that are required before double-bunking takes place aren't done. I am quoting the Office of the Correctional Investigator, Mr.

Sapers, who testified before us saying that “double-bunking in segregation is a violation of government policy, the Charter of Rights and international human rights standards”. So what we see as a result of this is that these confined spaces are not designed to house more than one inmate, and you're bordering on inhumane custody. And then they quote some statistics based on a date of September 11, with a snapshot of double-bunking among the general population in Canada's 58 prisons. Nationally, 13.5% of inmates were double-bunked.

A half have had no double-bunking, but others showed a high proportion of offenders: for example, in the Frontenac Institution in Kingston, 72%; in Millhaven, in Ontario, 65%; Bowden Institution in Alberta, 50%; Grande Cache, 58%; Mission Institution in B.C., 24.9%. What we're seeing already is overcrowding in our prisons to the point where we have double-bunking.

We know, and we've heard many of the experts tell us, and it's common sense, of course, that this is going to lead...these measures that are here, and the drug provisions and other provisions of this act, which lead to harsher and longer sentences, are going to result in significant increases in overcrowding in prisons, inhumane conditions, possible violations of human rights obligations, as well as, if these conditions are going to be ameliorated, significant costs to the government, to the taxpayers. Whether they're provincial taxpayers or federal taxpayers, someone is going to have to pay.

When we take that into consideration, along with the reasons that this shouldn't be done--as I've just outlined by paraphrasing and in some places quoting the Canadian Bar Association--we're going to have a very serious situation on our hands. These are many of the reasons that thousands and thousands of people have contacted me, and they've contacted other members of this committee and perhaps the chair and the Minister of Justice over the past number of weeks in wholesale opposition to this legislation. These particular provisions are ones that we oppose.

Some of the major reasons for opposing them are the consequences of, in this case, the proliferation of mandatory minimums that are going to lead to more people in prison for longer, more recidivism, more crime, and not achieving the safer society that the bill is supposedly named after.

(1930) Mr. Chairman, perhaps the next speaker would-- The Chair : Thank you, Mr. Harris. Ms. Boivin. (1935) [ Translation ] Ms. Françoise Boivin : Thank you, Mr. Chair. We know that we are nearing the end of the time we are allowed by democracy to make ourselves heard on Bill C-10 , and more specifically on the amendment to clause 39 of the bill.

Before beginning to state my case on this subject, I would like to take the opportunity, because I may not have another chance to do it, to thank our people from the Legal and Legislative Affairs Division and the Social Affairs Division at the Parliamentary Information and Research Service of the Library of Parliament. This is not the first time I have sat on committees and had the chance to read the legislative summaries that I consider to be nonpartisan and that help members do their job. They are amazing sources of information, along with the various witnesses who appear before us.

To put these people in context, I would like to quote something in the document dated October 15, 2011, that was provided to us. It concerns the issue of mandatory minimum sentences, clauses 39 to 41 of the bill. The people listening to us or who read us will be thinking this is sometimes very technical. There are in fact a few sentences here, and we are changing... For example, look at an amendment proposed by the NDP, which says: That Bill C-10, in clause 39, be amended by replacing line 3 on page 22 with the following: in

Schedule I, is guilty of an indictable That is how the proposed amendment concludes. It is not very easy for people to understand. It has to be understood that clause 39 of the bill amends paragraph 5(3)(

a) of the CDSA. For those who are wondering what the CDSA is, it is the Controlled Drugs and Substances Act, that is, the part we are currently studying. This is what the legislative

summary of Bill C-10 says: Clause 39 of Bill C-10 amends

section 5(3)(

a) of the CDSA to provide in certain circumstances for mandatory minimum terms of imprisonment for the offence of trafficking in a substance included in

Schedule I or in

Schedule II if the amount of the

Schedule II substance exceeds the amount for that substance set out in

Schedule VII. There will be a minimum punishment of imprisonment for one year if certain aggravating factors apply: the offence was committed for a criminal organization, as that term is defined in

section 467.1(1) of the Criminal Code (a group of three or more people whose purpose is to commit serious offences for material benefit); there was the use or threat of the use of violence in the commission of the offence; a weapon was carried, used or threatened to be used in the commission of the offence; or the offender had been convicted of a designated substance offence, or had served a term of imprisonment for such an offence, within the previous 10 years. A “designated substance offence” is defined in

section 2 of the CDSA to mean any of the offences in sections 4 to 10 of the CDSA, except the offence of possession of a substance found... Those notes also say: Defining such places may prove to be difficult. The use of the terms “school ground, playground, public park or bathing area” in

section 179(1)(

b) as a restriction on the movements of those who may commit a sexual offence against a child was found to be overly broad and, therefore, a violation of

section 7 of the Canadian Charter of Rights and Freedoms. The minimum two-year punishment will also be imposed if the offender used the services of a person who is under 18 years of age, or involved such a person, in committing the offence or committed the offence in a prison, or on its grounds. The term “prison” is defined in

section 2 of the Criminal Code to include a penitentiary, common jail, public or reformatory prison, lock-up, guardroom or other place in which persons who are charged with or convicted of offences are usually kept in custody. I encourage people to read that document because it explains the bill clearly, and there are questions stated in the document that are very similar to what we have heard. We have heard them, but not at great length. Fortunately we have read the documents that all of the witnesses have submitted to us.

There are people I would have liked to spend more time with to be able to ask them for a little more explanation about the documents we have read. Because we really are dealing with legal matters and it is not particularly easy to understand. We often talk about things relating to criminal law, and we also know that in that area, the burden of proof is "beyond a reasonable doubt". There is a presumption of innocence.

(1940) Sometimes, we wonder whether it can still be imposed, or whether there will not be another attempt to try to abolish it. Sometimes, I wonder what kind of legal system we have. I want to highlight a few points that the Barreau du Québec tried to demonstrate. It should be noted that the representatives of the Barreau had exactly five minutes for their presentation, after which they were interrupted.

The representative of the Barreau said that it regretted [Translation] "the government's choice to undertake such a substantial legislative reorganization (over 200 clauses) by presenting an omnibus bill and, moreover, to pass those amendments within 100 days of the return of Parliament". The people from the Barreau pointed out that [Translation] "there is no objective reason or situation that justifies this approach, particularly since this bill proposes a fundamental transformation of a number of statutes that comprise the legal framework of the criminal law and the treatment of offenders".

Although the bill is called the Safe Streets and Communities Act, after hearing the various witnesses who came to speak here, I have serious reservations about that. Once our work is done today, will we be reporting a bill to the House that will make our streets and communities safer? I have serious doubts about that.

The people from the Barreau continued: [Translation] When the law requires that everyone who has committed certain offences be sentenced to imprisonment, regardless of the circumstances surrounding the commission of the offence, the specific characteristics of the persons who have committed the offence and the possibility of those persons being rehabilitated, there is a real possibility that these people will become further criminalized. That is a serious statement. If the entire bill is based particularly on minimum sentences... [ English ] The Chair : Just a second.

When you read a document, if you could just slow down— Ms. Françoise Boivin : Slow down for the translator? The Chair : For the interpreter, yes. Ms. Françoise Boivin : Excellent. [ Translation ] I will repeat what I read before, in part: [Translation] ... regardless of the circumstances surrounding the commission of the offence, the specific characteristics of the persons who have committed the offence and the possibility of those persons being rehabilitated, there is a real possibility that these people will become further criminalized. [ English ] Mr. Brent Rathgeber : No English? Sorry. [ Translation ] Ms.

Françoise Boivin : That's right. [ English ] We just add to the time. There's no time limit, so.... The Chair : That's fine. [ Translation ] Ms. Françoise Boivin : Continuing my reading of the document from the Barreau: [Translation] In other words, we would actually be afraid that this law will not achieve the objective ascribed to it, while there is a real risk that it will have the opposite effect.

Considering the impact of this legislative proposal, it would have been desirable to have a major public debate, one that would allow everyone involved in all aspects of the judicial process and social intervention to be consulted. That kind of consultation would produce a broad consensus concerning the best known methods of: (1) reducing the incidence of crime ... I stress this because that is the objective of everyone in this room. Continuing: [Translation] ... (2) responding appropriately to persons who have committed criminal offences, ...

We do all want to be fair, and myself, I do not want someone who has committed a heinous crime to get away with a slap on the wrist, just as I do not want someone who has committed a

summary conviction offence to be imprisoned for two years and for the effect to be simply that they become more deeply involved in crime. Reading on: [Translation] ... while targeting the most effective methods to promote denunciation, deterrence and rehabilitation of offenders, and (3) identifying and remedying weaknesses in relation to reintegration. Those should always be our three objectives when we consider legislation like the legislation affected by Bill C-10 .

They go on to say: [Translation] Bill C-10 comes at a time when the data provided by Statistics Canada show that crime is declining in Canada; in 2011, the crime rate in Canada was at its lowest point since 1973. Violent crime is also declining, year over year, to a lesser extent. With apologies to my Conservative colleagues who do not take these statistics seriously or who think the figures are not accurate.

Reading on: [Translation] It must be noted that while the national crime rate has been declining constantly for 20 years, and today is at its lowest point since 1973, this is largely a result of the existing sentencing system, which seeks a balance between denunciation, deterrence and rehabilitation of offenders. Proportionality and individualization of sentences are fundamental values. And that kid of decline does not just happen by itself. Obviously, it is caused by something. When I was studying law, denunciation, deterrence and rehabilitation were always the three concepts we were told about.

For any crime committed, there is denunciation, there is deterrence and there is rehabilitation of offenders. And proportionality and individualization of the sentence are fundamental values. I think that out of the whole of the Barreau's brief, those are some of the most important sentences to remember. Sometimes, I get the impression that we have forgotten these extremely important concepts. They also say that [Translation] "numerous studies show that imprisonment does not reduce the incidence of crime". That does not mean that there should be no imprisonment.

I do not want to be quoted as saying I am opposed to imprisonment. I simply think that imprisonment must be justified. My career was in labour law, and when someone was dismissed, I always told the employers that it was the equivalent of the death penalty. So what the person was accused of doing had to be punished by a penalty that was proportionate to what they had done, and the person's record had to be taken into account. The same is true in criminal law. The same concepts apply: an individual who is guilty of wrongdoing, of a crime, has to be punished on the basis of that crime.

Do we need to apply deterrent effects to try to prevent it from happening again? Can the person be rehabilitated? I recall a case going back to the beginning of my career, when I did a little criminal law. It was a young person. Both the representatives of the Crown and myself agreed that if the Criminal Code were applied strictly, we would be sending that young person straight down the path of crime. The judge, the representatives of the Crown and myself therefore took steps to adapt the situation to the individual whose fate was in our hands.

When it comes to minimum sentences, the problem is that everybody is treated the same way, without consideration of any factor that might be favourable just as well as unfavourable. It cuts both ways. If two people who have committed the same act appear before a judge, but one of them has committed it six times and the other only once, there has to be some logic applied.

(1945) The brief of the Barreau du Québec also says: [Translation] Numerous studies show that imprisonment does not reduce the incidence of crime. Public Safety Canada has released the results of a study on the impact of imprisonment on recidivism by offenders who serve their sentence in prison. The conclusions are as follows: 1. For most offenders, prisons do not reduce recidivism. To argue for expanding the use of imprisonment in order to deter criminal behaviour is without empirical support.

The use of imprisonment may be reserved for purposes of retribution and the selective incapacitation of society's highest risk offenders. 2. The cost implications of imprisonment need to be weighed against more cost efficient ways of decreasing offender recidivism and the responsible use of public funds. For example, even small increases in the use of incarceration can drain resources from other important public areas such as health and education. 3. Evidence from other sources suggests more effective alternatives to reducing recidivism than imprisonment.

Offender treatment programs have been more effective in reducing criminal behaviour than increasing the punishment for criminal acts. More and longer minimum sentences are the figurehead of Bill C-10 . The Barreau would note the glaring disparity between real needs in terms of penalizing offenders and preventing crime and recidivism and the solutions in these regards proposed by the government. Moreover, and having regard to the inevitable and exorbitant costs that implementing these more coercive measures will generate, victims of crime are again being ignored.

This is something that has really troubled me throughout the analysis of Bill C-10 , whether on second reading or now here in committee. My Conservative colleagues talk a lot, and rightly so, about victims. However, I see nothing in this bill other than the possibility of having a little more impact and visibility when it comes time to consider the criminal's sentence. That is all I see. Is this bill going to solve the problems for victims? I have had an opportunity to speak with some of the victims who testified before the committee. When I was in practice, people who had been fired came to my office.

When they said how they wanted to get very large amounts of money, I always told them that no amount of money would ever satisfy them or make up for what they had been through. That is true when it comes to victims, and they agree with me. There will never be a sentence that will satisfy someone, particularly in the cases we have heard, where heinous crimes have been committed. Do we want a sentence to be imposed in order to provide personal satisfaction for someone else? Do we want to do it so that society will say that the offender is a disgusting person?

Will we want society to hit them over the head and damn the consequences, as long as society feels better? I think we have to get past that way of looking at things. It is all very well to look tough. It is all very well to look as if you care about civil society and to say that things will be safer because we are getting tough with criminals. But if what we are doing with our criminals does not solve the crime problem, society is not going to come out of this situation looking any better. I encourage you to read the brief of the Barreau du Québec again. In the

section [Translation] "Principles of justice in issue", it says, concerning minimum sentences and judicial discretion: [Translation]

Section 718.1 of the Criminal Code specifically states that it is a fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is the basic premise when it comes to sentencing. It could not be clearer. The Barreau du Québec also says in its brief: [Translation] On that point, judicial discretion alone provides the means for complying with and giving full effect to the principle of proportionality and individualization of the sentence, and ultimately to criminal justice in general.

Although it is essential that offenders be accountable for their acts, judicial discretion alone provides the means for weighing the various principles of sentencing, and thus imposing a fair penalty that takes into account all the circumstances and the offender's real degree of responsibility.

(1950) At one time, during a television broadcast, I had an opportunity to debate Senator Pierre-Hugues Boisvenu. His answer to a question put to him made it clear that it was all based on the fact that the government does not trust the judiciary. And yet, as even the people on the Supreme Court said, it is important that the judge, who is not on the side of either party, and who hears the facts of the case, who hears the defence and the Crown, be allowed to continue to enjoy the advantage of being a trial judge, with the power to use all of the options available to them. I could talk about this at great length.

I simply want to remind this committee that it seems to me that it would have been our role as legislators to focus our attention to the documents provided by the government, to hear all these speeches and to see all these red lights warning us that the stated goals will not be achieved in any way with what has been put on the table by the Conservative government. With the costs associated with this, we are creating the same system the Americans are trying to get away from, when they are no longer even able to pay for it and they are up to their necks in debt. Consider, for example, the women's prison population.

These women who are in detention centres already do not have a lot of room. Are we going to devote all our time to building prisons, knowing full well that this will not solve the problems? I have a bit of a problem with this. I am horrified to think that someday we might be saying we told them so. Unfortunately, I have the impression that this is in fact what is going to happen when it comes to this bill. This is not a matter of being soft. It is understanding how the system works and, as the people from the Barreau said, foreseeing the possibility that people will plead guilty to offences when they should not.

No one thought about that. There will be cases for which there should be a trial, but people will prefer to plead guilty to a lesser offence rather than end up with some of the charges that will be laid against them that will mean minimum sentences. I cannot call that a system where everyone has the right to a trial, to the presumption of innocence. It is not a fair system where all of the factors are heard before rendering a verdict and passing sentence. I know that my colleagues also have things to say on the subject, so I will say no more for the moment. (1955) [ English ] The Chair : Thank you, Madam Boivin.

Mr. Rathgeber. Mr. Brent Rathgeber : Mr. Chair, it's certainly a delight for me to contribute to the debate on Bill C-10 , and specifically on the clauses that are under consideration dealing with minimum mandatory sentences. I listened quite intently to the comments of my friends, Mr. Harris and Ms. Boivin. Of course, I disagree with their assessment on minimum mandatory sentences, specifically their suggestion—or I would suggest, accusation—that they would somehow lead to arbitrariness and unjust conclusions and sentences.

I would suggest—and for those Canadians who are still watching this debate—it is quite the opposite. If you'll indulge me for a couple of moments, I want to quote from a decision of the highest court in Alberta. As the members on this committee know, I too am a lawyer. I practised in the law courts of Alberta for perhaps not quite as long as Mr. Harris did in the courts of the Maritimes, but for a considerable period of time. In any event, the Chief Justice of Alberta, in a decision released in 2010, Regina v. Mr. Arcand, in a very lengthy judgment talked about the principles of sentencing.

I will only refer to the facts of this case very briefly to give the members of the committee some background, but the individual was convicted of a sexual assault, and not a minor sexual assault. It was what the former Criminal Code would have referred to as rape. In fact, the victim in this case was a second cousin of the accused. She was passed out from alcohol intoxication when her second cousin sexually assaulted her. The trial judge sentenced Mr. Arcand to a period of three months incarceration to be served intermittently on weekends.

With that background I want to briefly, if the committee will indulge me, read three or four paragraphs from this court of appeal decision. I think its very elucidating in the way the jurists themselves feel about ranges, starting points, and the principles of sentencing. I think it will refute Mr. Harris's concern about arbitrariness and Ms. Boivin's concerns about unfair results. It's a very well-written judgment. I encourage members to read it if they have time. I will only read a couple of pages. We must face up to five sentencing truths.

First, it is notorious amongst judges, of whom there are now approximately 2,100 in this country at three court levels, that one of the most controversial subjects, both in theory and practical application, is sentencing. That takes us to the second truth. The proposition that if judges knew the facts of a given case, they would all agree, or substantially agree on the result, is simply not so. The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada–and fighting hard to stay that way. All lead inescapably to the fourth truth.

Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility. The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.

That is where we are. Public confidence in the criminal justice system has been weakened, if not shaken—I would suggest significantly so. There is considerable disparity in sentencing from jurisdiction to jurisdiction—and even within a province like Alberta, from region to region. That deficiency, with the disparity within sentencing and the public's lack of confidence in it, brings us to the need to give some guidance to the courts on appropriateness.

(2000) I would like to continue with just a couple of phrases more from the Chief Justice of Alberta, the Honourable Catherine A. Fraser. She said: Such disparities undermine the public's trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law. With respect to the whole issue of minimum mandatory sentences and starting point sentencing, the court of appeal says, quoting Chief Justice Lane in two appeal courts in England and Wales, “We are not aiming at uniformity of sentence; that would be impossible.

We are aiming at uniformity of approach.” And “This court has a duty to offer guidance in the form of a statement of typical cases and starting-points.” In a recent judgment, Justice Fraser opines that there is a need for starting points or minimum mandatory sentences to prevent the very things that Mr. Harris talked about—arbitrariness, randomness. There has to be some consistency if the public is going to have confidence in the criminal justice system. Justice Fraser tells us: Starting point sentencing does not fetter judicial discretion but ensures that its exercise is based on proper factors.... In

summary, starting point sentencing accords with the proportionality principle. It is hostile to rigidity and actively embraces the aim of a proportional sentence fit for the offence and offender. The argument that it unreasonably confines “judicial discretion” is misplaced. Every process of reasoning must start somewhere and it needs acceptable standard reference points along the way. Starting point sentencing is not only loyal to Parliament’s will—and the governing proportionality principle it has mandated—but antithetical to randomness and arbitrariness, the polar opposite of judicial decision-making.

With respect to this whole issue of minimum mandatory sentences, I would submit that when you have a criminal justice system where the sentencing is so disparate as to be erratic and almost random, Parliament has a duty to act, to give some guidelines to the trial judges and the appellate judges on what the appropriate starting point is. It maintains flexibility, Mr. Harris, because a minimum mandatory sentence is much different from a mandatory sentence. There are some mandatory sentences in the Criminal Code—the obvious one is first-degree murder.

There is one sentence and one sentence only: life imprisonment without eligibility for parole for 25 years. But that is a rarity. The amendments to the Controlled Drugs and Substances Act propose to create a starting point. Judges still have flexibility to go up from the starting point, but the starting point creates a standard that Parliament has determined is fitting for a sentence for that severity.

I am hoping that my friends on the opposite side of the table will accept that although they have well-articulated arguments in favour of their position, there are equally compelling arguments on the other side of the debate. We see a huge sentencing disparity from region to region in this country, which leads to the same results that they are arguing against—arbitrariness and injustice. We see cases where judges, for whatever reason, have passed sentences that cry out for guidance, for a starting point, while maintaining flexibility. Thank you.

(2005) The Chair : Thank you, Mr. Rathgeber. Mr. Seeback. Mr. Kyle Seeback (Brampton West, CPC) : Thank you, Mr. Chair. Like my colleague, I am happy to be able to finally participate in this clause-by-clause review. I'm going to focus my comments this afternoon—I guess we're into this evening now—on NDP amendment number four, which, as Mr. Harris was saying, is how they want to remove

schedule II from that clause. I want to put it into context, because I don't think people who may be watching or listening necessarily understand what this clause deals with and what it talks about.

Section 5 of the Controlled Drugs and Substances Act deals with trafficking. Subsection 5(1) starts out by saying, “No persons shall traffic in a substance included in

Schedule I, II, III or IV”. So when they're seeking to amend that section, they're trying to take out

schedule II from trafficking.

Schedule II, if we look through it, deals with marijuana and marijuana derivatives. What the NDP are proposing to say is that there should not be mandatory minimum penalties for people who are trafficking in marijuana. I think everyone should understand that, because in my estimation that is an extreme position. I'm going to go through a few things to explain why I believe that is such an extreme and unsupportable position. I'll start with a quote that we have right here.

This is from Chief Superintendent Fraser McRae from the RCMP Operational Intelligence Centre in Surrey, where he states “...what can't be debated is that cannabis is a currency for organized crime.” So organized crime traffics in marijuana and the NDP is saying that we should remove that so there's not a mandatory minimum penalty. I've noticed that only today on the news we hear of a large drug bust that was going on in Quebec that dealt with the Hells Angels, and of course they seized large amounts of marijuana.

Again, simply to reiterate, the trafficking of marijuana is the lifeblood of organized crime, so when we are including that in this legislation it's to target things like that, trafficking in marijuana. What we also know is that the argument that is being put forth on the other side is that somehow this legislation is a little too difficult. What about the poor person who is only growing six, seven, or eight plants in their basement? They might be affected by this legislation.

In my discussions with police officers, and in a little research I've done, a marijuana plant can produce between 500 and 1,000 joints, depending on how large it grows. So if you're looking at someone who has six plants of marijuana, this is a person who could be producing 6,000 joints. This is not the poor misguided person who wants to have some personal use. This is somebody who is growing marijuana for the purpose of trafficking. That's exactly why this

section needs to stay in the legislation. When we talk about some of the comments that I just heard from Madame Boivin, saying that this legislation does not do anything to support victims, that is strange to me, because as I sat on this committee I watched victim group after victim group come forward and stand here and say strongly, “We need this legislation. We want this legislation.” The reason why they talk about it is because—and my colleague commented on this—this legislation changes so many sections of the Criminal Code to give a sentence that fits the crime, and it restores faith in the justice system.

I've spoken to many people who have gone through the justice system, and they say over and over again that not only were they victimized by the perpetrator of the crime, but they were victimized by the justice system when they watched the person who committed the crime receive a sentence that was absolutely not proportionate to the crime they committed. Those are the kinds of people we are standing up for, and that's why we are introducing this legislation. Victims support this legislation. That is clear from the testimony we've heard at this committee.

(2010) When we talk about the issue of deterrence...we heard from the chiefs of police. They came and sat here and talked to this committee. They said this legislation is going to stop the revolving door of what they called “rounders”, people who are going through the system over and over again with no perceived consequences to their actions. They don't see that the current legislation is any impediment to their committing the crime, so they feel free to continue to do that.

This is going to give our police officers the tools to get those people off the street and keep them off the street for a longer period of time, which means they won't have the ability to continue to traffic drugs to our families and to our children. I have a quote here from Dr. Darryl Plecas, Royal Canadian Mounted Police research chair and director of the Centre for Criminal Justice Research at the School of Criminology and Criminal Justice in the University of the Fraser Valley: We absolutely have to get people off the street.

It's not a question of getting tougher on sentencing, it's a question of getting more effective. We want to make a difference. We know we can. We've seen it happen. Let's do more. I absolutely applaud the government on the initiatives to get mandatory penalties. These are the kinds of people who are supporting our legislation. Don Spicer, superintendent of the Halifax Regional Police, stated: We believe that Bill S-10 will have a positive effect in aiding Halifax Regional Police to decrease acts of illegal drug activity and the corresponding acts of violence in our community.

As such, we view Bill S-10 as an important step in the right direction. So here on this side, the government side, we've heard from law enforcement. We've heard from victims. They support this legislation. Those are the people we're happy to have supporting this legislation. We've heard comments today from members of the opposite side of the committee that we're bundling this together, that we're rushing this through. It's absolutely not true. I want to put on the record just a few pieces of information.

As of today, for this specific piece of legislation, there have been four days of debate in the House of Commons, with 16 hours of debate and 53 speeches; nine days in committee, with 16 hours in committee, 68 witnesses, and appearances by two ministers. When we look at the predecessor legislation that was introduced in this House, which is part and parcel of this legislation, we have an even more impressive record of debate and discussion.

We had 33 days of debate in the House, with 81 hours of debate, 225 speeches, and 45 days in committee, with 78 hours in committee, 252 witness appearances, and six ministerial appearances. It continued in the Senate: 20 days of debate, with 14 hours of debate and 36 speeches; 22 days in committee, with 61 hours in committee, 111 witness appearances, and three ministerial appearances. I don't need to add those numbers up. People can do that. But anyone trying to suggest that this legislation has not been properly reviewed or properly studied is trying to sell something that is absolutely not saleable.

I hope that when my friends on the other side consider this legislation, they'll realize the necessity, get on the sides of police officers, police chiefs, and victims groups, and support this legislation. Thank you. The Chair : Thank you, Mr. Seeback. Mr. Jacob. [ Translation ] Mr. Pierre Jacob (Brome—Missisquoi, NDP) : With all due respect for my two colleagues, I cannot agree with them. You will not be surprised if I tell you that I agree more with Mr. Harris and Ms. Boivin. We should leave discretion with judges. We should not lose the benefit of experience on the ground, which is invaluable.

Certainly if the party concerned is not satisfied they can always go before the appropriate appellate court. That is the first thing I have to say. The following appears in an independent report by the Department of Justice: From a utilitarian point of view, incarcerating occasional, non-violent offenders, for substantial periods, constitutes a colossal waste of justice system resources. Mandatory Sentences for Drug Offences. Harsh MMS and the “drug war” approach in general show little effect in relation to drug offences. MMS do not appear to influence drug consumption or drug-related crime in any measurable way.

MMS are blunt instruments that fail to distinguish between low and high-level, as well as hardcore versus transient drug dealers. From a utilitarian perspective, the federal system appears to be incarcerating the wrong people; individuals who are easily replaced in the illicit market. For all these reasons, I think that mandatory minimum sentences will mean, according to several experts who have testified before the committee, that there will be an increase in incarceration, and prison is not a cure-all. Nor are super prisons the solution to crime for the victims, since the crime rate will rise in the long term.

They are also not the solution for inmates, since there will be an increase in the number of cases, overpopulation and a lack of privacy, and this will cause tension. There is going to be less access to rehabilitation and reintegration programs. There will be no pardons, since that concept is going to disappear. Prison personnel will not be assured of safety. Moving on to the budgets of the provinces affected, how are they going to manage this whole system, which is going to be increasingly onerous? So we should leave discretion with judges. I think the system works quite well.

I would like to come back to the YCJA in particular. [Translation] A single, mathematical approach to measures that are proportionate to the gravity of the offence and the degree of responsibility of the offender does not provide for adopting individualized intervention strategies based on factors relating to the offence ... but also to the unique characteristics of each [offender].

On this point, the Quebec model is characterized by differentiated intervention aimed at the right measure at the right time, based on the following assumptions: A young person is a person who is developing ... who has different needs ... the intervention must be appropriate to that status. We have to [Translation] "offer the right service at the right time", and so we have to hire "a team of professionals who have the necessary skills". The intervention must be speedy, a [Translation] "concept that has a different meaning to a young person", since at that stage of development, things move very quickly.

The parents' participation is [Translation] "sought, valued and supported throughout the intervention". [Translation] We also have to be concerned about victims and consider the impact the offence has had on them; [the offender will be] made aware of the wrongs and harms they have caused them, and where appropriate a reparation process [will be] proposed. I adopt all of these recommendations.

(2015) I adopt all of these recommendations. They are all made by the Association des centres jeunesse du Québec and they a