Bill C-9 (Historical)

An Act to amend the Criminal Code (conditional sentence of imprisonment)

This enactment amends section 742.1 of the Criminal Code to provide that a person convicted of a serious personal injury offence as defined in section 752 of that Act, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence.

The House proceeded to the consideration of Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), as reported (with amendment) from the committee.

Speaker's Ruling

[The Speaker, Peter Milliken]

There is one motion in amendment standing on the notice paper for the report stage of Bill C-9. Motion No. 1 will be debated and voted upon.

I shall now propose Motion No. 1 to the House.

Motions in Amendment

[Vic Toews, Conservative, Minister of Justice and Attorney General of Canada]

moved:

That Bill C-9, in Clause 1, be amended

(a) by replacing lines 6 to 13 on page 1 with the following: “742.1 (1) If a person is convicted of an offence and the court imposes a sentence” (b) by adding after line 25 on page 1 the following: “(2) Despite subsection (1), the court shall not order that an offender serve the sentence in the community if the offender is convicted of any of the following offences: (a) an offence punishable by a minimum term of imprisonment; (b) an offence prosecuted by way of indictment for which the maximum term of imprisonment is fourteen years or more; and (c) any of the following offences, if prosecuted by way of indictment and punishable by a maximum term of imprisonment of ten years: (i) a terrorism offence, (ii) a criminal organization offence, (iii) an offence under any of the following provisions: (A) section 83.231 (hoax — terrorist activity), (B) subsection 88(1) (possession of weapon for dangerous purpose), (C) section 144 (prison breach) (D) section 160 (bestiality, compelling, in presence of or by child), (E) subsection 212(1) (procuring), (F) section 221 (causing bodily harm by criminal negligence), G) subsection 249(3) (dangerous operation causing bodily harm), (H) subsection 252(1.2) (offence involving bodily harm), (I) subsection 255(2) (impaired driving causing bodily harm), (J) section 264 (criminal harassment), (K) section 267 (assault with a weapon or causing bodily harm), (L) section 271 (sexual assault), (M) section 279 (kidnapping, forcible confinement), (N) section 279.02 (trafficking in persons — material benefit), (O) section 281 (abduction of person under 14), (P) section 282 (abduction in contravention of custody order), (Q) section 283 (abduction), (R) paragraph 334(a) (theft), (S) subsections 342(1) and (3) (theft, forgery of credit card, unauthorized use of credit card data), (T) paragraph 348(1)(e) (breaking and entering with intent, committing offence or breaking out), (U) section 349 (being unlawfully in dwelling-house), (V) section 354 (possession of property obtained by crime), (W) section 382 (fraudulent manipulation of stock exchange transactions), (X) subsection 382.1(1) (prohibited insider trading), (Y) section 396 (offences in relation to mines), (Z) section 400 (false prospectus), (Z.1) section 403 (personation with intent), (Z.2) section 424.1 (threat against United Nations or associated personnel), (Z.3) section 435 (arson for fraudulent purpose), and (Z.4) section 465 (conspiracy), (iv) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read immediately before January 4, 1983: (A) section 145 (attempt to commit rape), and (B) section 156 (indecent assault on male), (v) an offence under any of the following provisions of the Controlled Drugs and Substances Act: (A) section 5 (trafficking), (B) section 6 (importing and exporting), and (C) section 7 (production), (vi) an offence under any of the following provisions of the Food and Drugs Act, as they read immediately before the coming into force of section 64 of the Controlled Drugs and Substances Act: (A) section 39 (trafficking in controlled drugs), (B) section 44.2 (possession of property obtained by trafficking in controlled drugs), (C) section 44.3 (laundering proceeds of trafficking in controlled drugs), (D) section 48 (trafficking in restricted drugs), (E) section 50.2 (possession of property obtained by trafficking in restricted drugs), and (F) section 50.3 (laundering proceeds of trafficking in restricted drugs), and (vii) an offence under any of the following provisions of the Narcotic Control Act, as they read immediately before the coming into force of section 64 of the Controlled Drugs and Substances Act: (A) section 19.1 (possession of property obtained by certain offences), and (B) section 19.2 (laundering proceeds of certain offences).”

He said: Mr. Speaker, I rise today to speak to Bill C-9, an act to amend the Criminal Code dealing with conditional sentences of imprisonment, essentially house arrest, and Motion No. 1.

When the government introduced this bill, it required that those who committed serious crimes would be required to serve their sentences in prison. The bill followed through on a clear commitment that this government made during the last election campaign to tackle crime and make our streets safer.

Unfortunately, the bill that has been reported back from the justice committee is a far different bill from the one that this government initially tabled. Amendments proposed by the Liberals and supported by the New Democrats and the Bloc have effectively gutted the bill. I am not prone to hyperbole, but that is essentially what has happened to this bill. Canadians should know that.

The bill now requires the Crown to prove that the offence is a serious personal injury offence in order to ensure that criminals who have committed serious offences serve their sentences in jail rather than in the ease of their homes. No one should underestimate the burden that the opposition Liberals have placed on the crown attorneys who are trying to prosecute these cases.

The concept of the serious personal injury offence has previously related to a very limited number of offences and is used to determine whether an offender is a dangerous offender. It has been applied in only the most exceptional circumstances.

Let us consider the following case from the Alberta Court of Appeal. In its decision R. v. Neve, 1999, the court found that a robbery where the victim was attacked with a knife and abandoned naked in an open field in 5° weather was a not a serious personal injury offence for the purposes of the application.

The Crown had argued that any degree of violence was sufficient to make an offence a serious personal injury offence. The court specifically rejected that argument and said that the Crown would have to be required to prove “severe physical or psychological injuries”.

That is the same standard the Liberals are imposing on the Crown before it can dispel a conditional sentence. The effect of the amendment proposed by the Liberals and supported by the New Democrats and the Bloc is that criminals who commit arson, break and enter into residences or robbery or who cause bodily harm while driving impaired will all be eligible to receive conditional sentences.

Lest Canadians make any mistake about what that means, it means house arrest. They get to go home, lie on the couch and serve their sentences there. That is what the Liberals have done to our Criminal Code. If the trends of the past 10 years continue, these criminals, as a result of this Liberal amendment, will receive house arrest for these serious offences.

The opposition amendments to this bill have also made offenders who commit serious drug offences eligible for a sentence of house arrest. The opposition has ignored the plague of violence and hardship, the grow ops and the methamphetamine labs of those who engage in serious drug operations in our society in this country. Contrary to what the opposition Liberals think, trafficking in large amounts of narcotics is not a victimless crime and deserves a sentence of serious prison time.

By adding this extra step into sentencing proceedings, the opposition has placed an additional burden on the crown attorneys, a burden that will make trials longer, more complex and more expensive. In some cases, it will mean that victims will have to testify a second time.

Can anyone imagine that? Victims have been through a trial already, but because the Liberals want the Crown to prove that it is a serious personal injury offence, victims would have to go back to court and go through the same process again. That is what the Liberals want. That is the only way to avoid the whole issue of house arrest.

That is what the Liberals want to do to crown attorneys. More importantly, that is what the Liberals want to do to victims.

It will also mean that the category of serious personal injury offences, which was previously only used for dangerous offender applications and which are about 12 applications a year in Canada, will be diluted and thereby possibly bring into question the constitutionality of that very important tool.

The question I ask the opposition Liberals, are they prepared to be responsible for these negative effects on our justice system? What the Liberals and the New Democrats have done has made it clear that they are prepared to talk about being tough on crime during an election campaign. At least we know where the Bloc stood on that issue. They have never been tough on crime, but the Liberals and the New Democrats, during the election, said they would move on crime. They broke their word.

When it comes to delivering to Canadians, the victims of crime, they do not deliver. This amendment is a clear example that their shoddy rhetoric in the last election campaign over public safety support for mandatory minimum penalties for gun crimes and even a reverse onus when it came to bail applications for gun crimes was a shameless ruse to lure voters.

I am proposing an amendment that would restore certainty to Bill C-9 and ensure that those who commit serious crimes will actually serve their time in jail. I have heard from Canadians, victims and police that this certainty is absolutely necessary to ensure the safety of Canadians.

During my travels over the past few months it has been made clear to me by Canadians that those who break and enter into homes, those who rob us on the street at knife point, and those who commit arson and cause bodily harm should serve their time in prison. These offences are serious crimes. They are unacceptable to Canadians. Unfortunately, they are not unacceptable to the Liberal opposition. The perpetrators of these offences should not serve their sentences in the ease of their homes under house arrest.

I have heard the concerns that were expressed in committee that Bill C-9 applies to a number of what the opposition says are relatively minor offences. My amendment follows through on the original principle of Bill C-9 by providing certainty with respect to eligibility for house arrest. The amendment that makes it clear that certain offences should receive prison sentences while lesser offences like the unauthorized use of a computer will be eligible for conditional sentences unless they are related to an organized crime or terrorism offence.

My provincial colleagues have raised concerns about this bill relating to implementation and the cost. My colleague, the Minister of Public Safety, is addressing those issues and we will continue to work with the provinces. However, when I have discussed this matter with my provincial colleagues, they have been clear in their support for the type of measures that we proposed in Bill C-9 and indeed in the amendment that I am proposing here today.

Let us be clear here. Anyone who votes against this amendment is saying yes to house arrest for those who commit crimes like robbery, break and enter into a dwelling house, arson, committing bodily harm while driving impaired, and for serious drug trafficking and production offences. Anyone who votes against this amendment is saying yes to house arrest for those who commit serious commercial crimes like fraudulent manipulation of stock markets, and misleading investors in a prospectus and serious theft.

During the last election the voters made it clear about their expectations from Parliament. They wanted us to tackle crime and make our streets and communities safer. Now it is time for the opposition parties to live up to the commitments they made during the last campaign. Were their election platform covenants with Canadians on crime merely whimsy? The answer to that question will be revealed over the next weeks and months as they vote on the amendments to this bill and government bills on mandatory minimum prison sentences for gun crimes.

The amendment that I have proposed is a reasonable one and responsive to the concerns. It is clear that those who commit serious crimes should serve their sentence in jail and that those who commit minor crimes will be eligible for a conditional sentence. This fulfills our commitment. Will the opposition Liberals fulfill theirs?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I heard the minister say that, during the latest federal-provincial meeting of ministers responsible for justice, all justice ministers supported the previous wording of Bill C-9.

In my opinion, the minister's comments were not very clear, and I wish to give him the opportunity to correct the facts.

Can he confirm to this House that he has the support of the government of Quebec and its justice minister, Mr. Marcoux, regarding all the offences initially listed in Bill C-9, which the minister wants to bring back?

In my discussions with the minister's office, I was personally told that they were in agreement concerning certain offences involving assault against the person, but not at all concerning property-related offences.

I therefore invite the minister to clarify his statements and tell us what really happened at the federal-provincial meeting to which he referred.

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, in fact, what I said is that my provincial colleagues had been clear in their support for the sorts of measures that I am proposing in my amendment today. By and large, they were all supportive of Bill C-9, other than Quebec which expressed certain concerns on property offences. Generally speaking, in respect of the amendment that I am proposing today, there would be support.

When looking at issues like robbery, break and enter into dwelling houses, arson, committing bodily harm while driving impaired and serious drug offences, the question is not what the provincial ministers are saying. What is the member saying? Where does he stand on this issue? I know that he does not think that those are serious crimes.

If somebody burns a house down and someone does not have a place to live, he does not think that is a serious property crime and that people should get house arrest. That is what he thinks. Well I can tell members that is not what Canadians think. Arson, break and enter and robbery are not offences that should be eligible for house arrest.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I want to thank the Minister of Justice for expressing his view to the House and to Canadians.

I think that some members of this place, including myself, would like to have a little more information with regard to the offences that the minister just articulated. I wonder if he could advise the House what percentage of those offences, that he is referring to, would have had sentences, under the existing laws, of less than two years in prison.

Second, if the law were changed as the minister would like, could he advise the House approximately how many additional people would be going to jail who are not going to jail now, and what it would cost if it is necessary to build more jails in Canada?

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, those are issues in fact that my colleague, the Minister of Public Safety, and the provincial ministers are dealing with. It will have an impact on the provinces. We believe it will have a beneficial impact in that people will actually be deterred from crime. Those who commit robbery, those who commit break and enters will not be out on the street committing more when they are in prison. For those who commit serious crimes in our country, it is demonstrated statistically that anywhere from 12 to 21 other crimes are not being committed for every year that they are in prison.

I would suggest that the member, who I know has supported us on prior bills on issues like this, should think very carefully about where his support lies on this. I think he would agree with me that when somebody is robbed at knife point, abandoned and left in a field in five degree weather in Alberta, that is a serious personal injury according to the law. In the amendment that his colleague made to the bill, the individual who perpetrated that kind of crime would still be eligible for house arrest.

I know what Canadians are saying about that kind of an issue. They say that if it costs us a little more money to put that individual in prison who does that to another human being, they are prepared to pay it.

[Paul Szabo, Liberal, Mississauga South, ON]

Mr. Speaker, I rise on a point of order. I wish to point out that the Minister of Justice did not answer the question and that tells volumes.

[The Acting Speaker, Royal Galipeau]

That was not a point of order, but a point of argument.

Resuming debate, the hon. member London West.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I appreciate that because I would like to be able to get some time at my committee this afternoon to listen to the Law Commission of Canada. However, every day we are here at the same time that we are supposed to be at committee.

In any event, last spring in my original speech in the House on Bill C-9, conditional sentencing, I spoke about the need to have some change and some narrowing in the conditional sentencing regime. Many of those people who were in the House before the House was brought down for the last election recall that Bill C-70 was a bill from the former Liberal government that used these three areas that we have, in committee, amended the bill on: serious personal injury as in section 752, the area of organized crime and terrorism offences. Each of these categories would incorporate broad numbers of areas in the Criminal Code in respect of the availability of the conditional sentence in those areas.

The only difference with this amendment, other than the one clause that was not admissible because it talked about denunciation and introduced another thought that was also inadmissible, was the fact that we still allowed the judge discretion. The opposition members in the House think it is important that the judge in the courtroom hearing the facts of the individual case and seeing the individual person before the court has the discretion to choose amongst a large tool kit of available options of sentencing, anywhere from suspended sentence to incarceration, to probation, or to conditional sentencing.

Conditional sentence, under the Supreme Court of Canada, is said to be a real sentence. Members think house arrest, as they tend to call it, is some joke, that it is a comfortable zone. Try telling that to one's kids if one is under house arrest on Halloween and cannot go out and distribute candy, or cannot go to a family reunion. The person is told he or she can go to work with very restricted conditions or perhaps for treatment for an addiction. That is when a judge will tailor the offence.

Let us take the offence of robbery. In the Criminal Code robbery has a wide range. It can have a maximum term of imprisonment, but a robbery by definition is charged under the same section of the Criminal Code, whether it is a kid stealing a bicycle worth $100 or a person robbing a bank. There is a different and wide range of possibilities. It is the judge hearing the case who will determine how serious it is.

The law on conditional sentencing and the sentencing principles currently part of the Criminal Code say it has to be proportional. It says judges have to pay attention to who is before them and the facts in the individual case. It says they should do the least amount of restraint of the individual as is necessary. However, they cannot even use a conditional sentence unless the punishment is in a provincial situation of less than two years. They cannot even use it further unless the judge has determined that the protection of the public will be there. In other words, judges have to ensure that putting them into the public domain is safe for the community. That is what conditional sentencing is about. Judges can put in many things as conditions to go along with those sentencing principles.

What has happened in this bill? I remind everyone that the minority Conservative government dealt with the bill not by sending it to committee after first reading, so that there would be a wide scope for amendment and we could work collaboratively together, which I put on the record in my first speech last spring, but it sent it after second reading. It was a one paragraph bill that had many offences in the Criminal Code covered.

There were days in the House when all parties asked the government, especially on the property offences, why are they there, why does the government have this long list of offences that are property offences and not personal injury offences or not violence offences?

It is incumbent on the government, when it wants to restrict liberty, to justify and explain to Canadians its reasons for including so many offences that would not qualify in its opinion for a conditional release.

It is true that opinions differ among the parties in the House. We see the justice system differently than the Conservative government does. We want a judge to be able to deal with the situation of a sentence of less than two years and be satisfied that an offender serving a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing set out in section 718 and section 718.2 of the Criminal Code of Canada.

On September 19, 2006 I asked the Minister of Justice when he appeared before the justice committee if the government would amend its own bill. I was told no. Throughout the committee process the government did not take one thing out of its bill until today, a couple of hours ago. It offered no amendments. The opposition, on the other hand, amended the bill at committee based on good evidence presented by a number of witnesses to include the terrorism, organized crime and serious personal injury offences that we discussed.

Bill C-9 was amended by the majority of committee members who listened to the evidence of Gladue courts. Gladue courts allow people on a conditional sentence, the aboriginal people in downtown Toronto who have addictions and are involved in criminal activity to support their addiction, to get treatment under a conditional sentence. We heard that evidence. Some of those people are addicted to serious drugs but they are not there because of trafficking in drugs. Trafficking is not by an individual; the organized crime section of the bill talks about three or more people being involved. They will pick those things up so that is the part not being heard.

Bill C-9 was amended by a majority of members on the committee after listening to the evidence of those people who operate diversion and treatment programs. We listened to Julian Roberts who gave the best empirical evidence on data collected. He came in from his current post in England to tell us the work he had done inside the justice department to fix this area where it needed amending, but not to the width and breadth that was there. What happened then?

We even kept in the notion that if there was a conditional sentence, it would not be available if there was a mandatory minimum. Therefore, for some of the driving charges, in the case of second and third offences, there are mandatory minimums. Conditional sentencing will not be there.

Just in case anybody thinks that the courts are running wild on some of these things, I have some numbers from Juristat.To hear the other side, one would get a conditional sentence as though it were mandatory. What happens? Let us just take a look at the total cases sentenced in 2003-04. Under impaired driving, operation causing death, there were 9,477 cases, terrible situations, and 98% did not get a conditional sentence. Under impaired operation causing bodily harm, there were 9,763 cases. Again, 98% of them did not get a conditional sentence. In other words, judges are still using their discretion.

There was a last minute change today. If the bill had been tabled last spring in the form that it is being presented here today, maybe we could have worked with it. When I ask the justice minister why he does not meet with the critics, there is no reason. It is not their way or the highway. We do have some expertise in this chamber, members who actually want to work to get things done.

The list presented today is an amalgam. It seems to have been hastily put together over the last couple of days. It has some of the sex offences, terrorism offences and organized crime offences that are already in our amendment. Some property offences have been kept and drug offences have been added. There is no available treatment for the few people in this country who might be willing to get treatment if they were given the opportunity. Granted, there are not that many of them, but the ones who do, do not have to spend time in prison, and maybe if they are fixed, they will be more productive members of society.

The Conservatives did not think of the provincial partners. We asked for the cost of their program, but they did not give it to us. They said they were working on it. Guess what? That is downloading to the provinces and that is not responsible.

We have a responsibility here. We have heard about some of the costs of the government's justice bills. We have it from the provincial ministers. We know that the government is looking at about $1.5 billion in infrastructure costs and about $300 million annual cost. We do not need to do this and we are going to reject--

[The Acting Speaker, Royal Galipeau]

Questions and comments. The hon. member for Nanaimo—Alberni.

[James Lunney, Conservative, Nanaimo—Alberni, BC]

Mr. Speaker, I can hardly believe what I am hearing. I just heard the member defend judges having the discretion for suspended, conditional, or some other form of sentencing. I know how she feels about mandatory sentences because I have heard her speak to that before. She does not believe they work.

We were elected on a platform to bring in mandatory sentences for repeat and violent offenders. This bill would take away conditional sentences for very serious crimes. We are talking about arson or break and enter.

The member talked about the hardship that some people with conditional sentences have to face. I thought I heard her say that parents would have to explain to their children why they could not take them out on Halloween.

There was a break and enter in my riding recently at the home of a 92-year-old man and his wife. Thank God the woman was able to call 911 before the criminal broke in. He was threatening to cut off her finger to take her rings. The 92-year-old man was beaten so badly he died a few months later. A 37-year-old man is being sentenced. Does the member think that individual should be considered for a conditional sentence so he can take somebody out on Halloween? Is that what the member is trying to defend? Is she serious? Does she recognize that Canadians are outraged because of the problems the Liberals, her party, caused when they were government with their leniency on crime and on criminals that make our society unsafe for our citizens? Is that what she is trying to defend?

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, we are trying to be smart with our justice policy. We have offered to fast track seven of the minority Conservative government's 11 justice bills. No one can tell me that we are not trying to cooperate. We have and will cooperate wherever we can. One justice bill went through today.

[Dave Batters, Conservative, Palliser, SK]

Name one.

[Sue Barnes, Liberal, London West, ON]

If the member needs to be told, Mr. Speaker, the government's street racing bill went through less than an hour ago on a fast track that we initiated.

The Halloween example was probably not the best example I could have given. I will say publicly that I did not mean to demean anybody. I apologize to any Canadian who took offence by my giving the Halloween example. I really do apologize because I did not mean to cause any offence.

I was trying to impart that when people are given conditional sentences, it does not mean that they have the freedom to leave their homes. They can only go where the court dictates. They are allowed to go to their place of employment or to a church, but really very little else. I was trying to get the fact across that there are consequences to the children and other family members in the home. I was not trying to be disrespectful to anybody. There was a B and E at my house and I know how it feels.

I do want to make the serious point that this is just one of the tools and I do not think in every case we have to take it away. If the government had come forward last year with a bill that looked more like the amendment that we received a couple of hours ago, we probably could have worked through that, but it just stonewalled and would not consult with the opposition. It would not accept any amendments, even when we told the government upfront what we were talking about. The way the government chose to take the bill to committee made it very difficult to work through amendment procedures. I even have questions of how the government managed to get the list in, but I will take that up with the people who legally advised us at a later date.

It is important that the House realize that the sentencing principles in the Criminal Code have to be lived up to. If the government had removed the sentencing principles about the various areas of section 718, it would be a different matter, but it did not do that even in its bill. Proportionality has to be respected. The person who measures that proportionality is the judge at the sentencing.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I have some stats here from Statistics Canada, the Canadian Centre for Justice. It says that those who serve conditional sentences are less likely to return to corrections than those who serve a prison sentence. These stats are from Newfoundland and Labrador, Nova Scotia, and New Brunswick.

I wonder if the member could comment on that.

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, I think the stats that the member has given are accurate. I regret that so much of what we are getting as justice legislation is based not on the evidentiary research that we know is there, but on anecdote and the ideology--

[The Acting Speaker, Royal Galipeau]

Resuming debate. The hon. member for Hochelaga.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I would first like to say that it seems to me that we have a responsibility to be somewhat serious and make decisions based on probative and conclusive data when we have the good fortune to be representing people in public life.

I would like the people listening to us to understand that there is no one in this House who is not concerned about the safety of our neighbourhoods, our communities. There is also no one who wants dangerous criminals or people who do not deserve to be at large being allowed to be. I find the speech that the minister made in this House to be rather insulting, as if the Conservatives were the only ones who are concerned about these issues.

This arrogance, which manifests itself in a very unhealthy certainty, is surely the reason why Quebeckers and Canadians, in their great wisdom, did not give this government a majority mandate.

When we are talking about criminal law or criminal justice policy, we cannot think of things as being black or white. Obviously there are people who will never deserve to be released with a conditional sentence.

There are people who make youthful mistakes or just plain mistakes for whom there should be oversight and supervision and for whom it should therefore be possible to recommend that they serve their sentence in their community. What I find sad is this kind of black and white thinking.

Bill C-9 started from a principle. It took all the offences in the Criminal Code for which a term of imprisonment of ten years or more may be imposed. We realized that there were 120 of these offences, but they are as disparate as making counterfeit money, copying a computer program and sexual assault. Those three offences are certainly deserving of punishment, but the fact is that they do not all have to be interpreted in the same way in terms of the seriousness of their consequences.

The problem with the Conservatives is that they cannot see grey areas. That is not the case for all Conservatives, but it is the case for a large number of them. The result is that they propose criminal justice policies that are absolutely dangerous because they do not allow for grey areas.

I will give a few examples of what I am talking about.

The John Howard Society presented a brief to the parliamentary committee. I think it gave a convincing demonstration of the fact that the ten-year sentence criterion is entirely unsound.

First, I would remind the House of two facts. Conditional sentences are a marginal phenomenon in sentencing practices. According to the most recent statistics available, there were 257,127 cases leading to conviction in 2003. Of them, 13,267 resulted in a decision by a judge at one level or another to impose a conditional sentence of imprisonment. That is a rate of 5.16%.

Conditional sentencing must not be spoken of as though it were widespread.

Second, people must realize that, when section 742 respecting conditional sentencing was introduced into the Criminal Code in 1996, everything was clearly marked out. This was not done arbitrarily. There were, and still are, four conditions to be met.

First of all, a judge cannot impose a conditional sentence if there are minimum prison terms. So right away there are some 70 offences for which conditional sentencing is not an option. Also, conditional sentencing is not possible if the judge imposes a prison sentence of more than two years. Nor is it possible to impose a conditional sentence if the judge is not satisfied that the person does not pose a threat to the community. And it is not possible if the judge is not satisfied that it is compatible with the objectives of sections 718.1, 718.2 and 718.3 of the Criminal Code, which deal with the objectives of sentencing.

There are already certain conditions to be met for conditional sentencing. This is understandable, since naturally a sentence to be served in the community is different from an institutional sentence, even though in 2000 the Supreme Court—in R. v. Proulx—said that it remained punitive.

Obviously it is not the same thing to serve one’s sentence in the community as it is to serve it in prison. Serving one’s sentence in the community is not a constitutional right, but rather a privilege which relates back to certain values and enables individuals to follow a program.

An individual who receives a conditional sentence—with a supervisor—is supervised throughout their conditional sentence. As some witnesses have mentioned, this type of sentence is safer than others because an individual is eligible for conditional release after serving one sixth of their sentence. This individual is no longer supervised afterwards. These facts must be placed in context.

I repeat: the Bloc Québécois is not saying that conditional sentencing is the answer in all cases. Obviously this is not so. This is why judges must know the offender’s profile, the context in which the offence was committed and the risk of reoffending. They must also be satisfied as to eligibility in the light of the four criteria that I mentioned.

The problem with Bill C-9 is that some offences are not punishable by 10 years in prison, yet are far more serious than some offences that carry a 10-year prison term.

One example would be failure to provide necessaries of life for a child under 16, which carries a two-year prison term. In theory, this should raise questions. Neglecting a child seems to me to be more concerning than copying computer hardware or software. Infanticide is punishable by five years in prison. I think that this is a situation where no one would want a conditional sentence. Yet it does not meet the criteria, which specify a 10-year prison term.

Every time the government proposes criminal policies that are so broad that they lack nuances, which we are entitled to expect, this creates problems.

In closing, the Bloc Québécois agrees that some individuals cannot be eligible for a conditional sentence because of the seriousness of their crime or their low potential for rehabilitation or because what they did was so reprehensible that people feel they have no right to a conditional sentence. We need to trust our courts of law to assess these situations. There is no evidence to suggest that the judiciary has improperly used section 742 of the Criminal Code.

[Leon Benoit, Conservative, Vegreville—Wainwright, AB]

Mr. Speaker, I have listened this afternoon to members from the Liberals, the Bloc and the NDP. They all have something in common, something that separates them from the Conservatives.

When those parties are looking at criminal justice issues, they focus almost entirely on protecting the rights of the criminals. They forget there are victims in these crimes, and we are talking about some very serious crimes.

I suggest the members of these parties be more concerned with rebalancing the scales of justice so the rights of victims are put higher on their list of priorities. The rights of criminals are considered, but they are not the highest priority. I think that would be more in line with the thinking of Canadians.

Another thing I have noticed is that most of the members of the opposition do not see crimes, such as breaking and entering, as a serious crime. This is breaking into a sanctuary, supposedly a safe sanctuary for people, their homes. That differentiates the Conservative government from members of the opposition as well.

Until the thinking of the members opposite changes, they will never be on the same page as we are and as Canadians are. Would the member respond to that?

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, with all due respect for our Conservative colleague, many things differentiate us, but let us say that this is what separates us.

We are convinced that break and enter is a serious crime. I challenge the member to provide an example of when we stated that it is not. Why is it serious? Not only because the Supreme Court said so but also because we realize that our home is our castle and that when our privacy has been violated it is clearly a serious matter.

What is the penalty for break and enter? Life imprisonment. Is that not proof enough that the Criminal Code requires more than just a literal reading?

I repeat, we do not believe that conditional sentencing is a right and that it can be applied without any context. The difference between the Conservatives and ourselves is that we believe in the individualization of sentencing, we have faith in the judges and we refute the Conservatives' soapbox proposals. These solutions often follow an automatic process and so are not nuanced and are devoid of analysis.

[Mark Warawa, Conservative, Parliamentary Secretary to the Minister of the Environment]

Mr. Speaker, it is an honour to ask a question of a member, with whom I was on the justice committee in the last Parliament. I greatly respect him. He is a very bright and articulate person, but I have great difficulties with his very lenient approaches to the justice system.

[An hon. member]

Soft on crime.

[Mark Warawa, Conservative, Langley, BC]

He is soft on crime and has a hug a thug philosophy.

He said something that is not correct. He said that under conditional sentencing, the offender is under supervision. That sounds good, but in reality we need to ask the member what his definition is of supervision.

Supervision could be that the offender, who is supposed to be at home, could be seen once a week or once a month. However, that is not what Canadians understand as supervision. Full time supervision, having somebody watch the person all the time, is what they are assuming.

[Dave Batters, Conservative, Palliser, SK]

Jail.

[Mark Warawa, Conservative, Langley, BC]

How do we get supervision? We have just heard it, incarceration.

Canadians want to give offenders a chance, if they are first-time offenders and it is a minor offence. However, we are talking about people breaking into people's homes and auto crime, serious, high risk offenders. We are talking about very dangerous people. They will reoffend. Permitting them to serve their sentences at home, puts communities at risk.

Could the member define what he means by under supervision?

[The Acting Speaker, Royal Galipeau]

The hon. member for Hochelaga has 20 seconds to reply.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I agree more with what the member said in the first part of his remarks and less with his comments in the second part.

It is obvious that in cases of serious crime—and I repeat, break and enter can be a serious crime—conditional sentencing may not be appropriate.

We do not claim that it is indicated in all circumstances, we do not claim that it is a constitutional right, but we are stating that it may be appropriate in certain cases.

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I will not cover the ground already covered by the members from the Liberal Party and the Bloc. I will focus on a particular aspect of the amendments introduced in the House today.

The work the committee did and the amendments the committee proposed dealt with the most serious offences. It is unfortunate that the minister chose to introduce the amendments to this bill today when they could have gone to committee for full and open debate. The committee could have had some witnesses come forward to address some of the issues that have been raised in the House today.

I will focus on one particular group that would be adversely impacted by the proposed amendments in the House; that is the first nations, Métis and Inuit peoples.

We have had briefing notes from the Assembly of First Nations, in which they comment on the overrepresentation of first nations people in the criminal justice system. It is important that I highlight a couple of statistics the Assembly of First Nations has raised of the very serious concerns about the overrepresentation of first nations, Métis and Inuit peoples.

The assembly says that 2.7% of the population in Canada, as of March 31, are first nations, but they represent 18.5% of all federally incarcerated prisoners in Canada. In 2000 approximately 1,792, or 41.3% all federally incarcerated aboriginal offenders were 25 years or younger. That is a shocking number. The number of incarcerated aboriginal women has also steadily increased from 1996-97. In the year 2003-04, they represented an increase of 74.2% over seven years.

Those are numbers that we must deal with as a Parliament and as a nation.

In addition, the Assembly of First Nations also identified the fact that aboriginal offenders represented 12% of the overall number of conditional sentences. That is an important fact, and that is the item that is before this House today, in connection with sentences.

There a number of recommendations that the Assembly of First Nations had specifically made. One of them is that we continue with the aboriginal justice agreement, which had been in development. However, it also emphasizes the fact that restorative justice has played a role in harnessing the rate of overrepresentation of first nations people in the criminal justice system and it is more consistent with the values of first nations than the prison system and can result in restoring harmony in the communities.

Those are all very important factors that this House needs to consider.

I want to quote from a letter from the Teslin Tlingit Council. They wrote a letter, dated October 20, which included a briefing it sent to the justice committee. I want to quote from the letter because I think this is a very important element. It states:

Notably we are concerned with the Prime Minister's refusal to endorse the UN Declaration on Indigenous Rights which speak to the right of self-determination, as well as [the Minister for Public Safety's] response to the Federal Correction Report findings that First Nation inmates face discrimination within the Canadian justice system, followed by the recent federal bills tabled by [the Minister of Justice], which in our world view contribute to the already high rate of incarceration of First Nations people.

This is in context of the Teslin Tlingit's attempts to have a justice system as part of their agreed terms in their treaty.

In the briefing it provided to the committee, it indicated that:

Within the Yukon, conditional sentences had proven to be an effective instrument utilized by the Territorial Courts working with First Nation community processes, such as the Teslin Tlingit Peacemaker Sentencing Panel. Conditional sentences have contributed towards the promotion and exercise of community accountability and support of offenders to achieve the successful completion of their conditions, while also acknowledging and responding to the interest of those who have been victimized by a crime. The result is that families are kept together with a focus on balancing retribution and rehabilitation of the individual, which provides for the benefit of the overall community.

This element is important. A member of the government just talked about the fact that opposition parties have no concern for the victim. However, the Teslin Tlingit peoples specifically talk about the fact that conditional sentencing is an important element in not only considering the victim, but considering the overall health and well-being of the community. This element has been left out of the discussion.

In addition, the Teslin Tlingit have made a specific recommendation around what is perhaps a potential solution here. They say:

Consultation with First Nations would inform parliamentarians that the majority of offenders require social support to address root issues of self-destructive and offensive behaviour. Resources directed towards enforcement and institutions create a false sense of security for a short period of time. Institutional programing is often ineffective as the work is done in isolation of the realities of a community with little of the required changes to assist in the offender's reintegration to their family or community.

It is this overall comprehensive approach that all of us in this House would agree is very important. It is very important that there are enforcement regulations that do fit the crime, but we also feel that there need to be adequate resources in prevention and in support and rehabilitation.

In the recent annual report of the correctional investigator, we again have a report that talks about the disproportionate numbers of aboriginal peoples, first nations, Métis and Inuit peoples who are in prison. The investigator highlighted a couple of key elements. He said:

Over the past decade, our Annual Reports have made specific recommendations...addressing the systemic and discriminatory barriers that prevent Aboriginal offenders from full benefit of their statutory and constitutional rights and that significantly limit their timely and safe reintegration into the community.

He goes on to say that first nations, Métis and Inuit represent “18 per cent of the federal prison population though they amount to just 3 per cent of the general Canadian population”. He states that the correctional service does not control admissions to penitentiaries, but it does have the constitutional and statutory obligation to manage sentences in a culturally responsive and non-discriminatory manner.

Given the fact that we have this report from the correctional investigator which talks about systemic and discriminatory barriers, it would seem incumbent upon us to use other tools such as conditional sentences to make sure that first nations, Métis and Inuit peoples are receiving justice measures that are more culturally appropriate and to also deal with their overrepresentation in the current federal prison system.

He notes in his report that aboriginal women are overrepresented. I pointed to this earlier in the Assembly of First Nations statistics. He talks about the fact that aboriginal offenders, once in prison, are less likely to be granted temporary absences and parole or are granted parole later in their sentences, are more likely to have their parole suspended or revoked and are more likely to be classified at higher security levels. He says that is just as true today as it was 20 years ago, so clearly nothing much has changed in 20 years. It is a sad comment on the way the justice system has these systemic and discriminatory barriers.

In wrapping up, I want to re-emphasize the position that has been put forward by the Teslin Tlingit,which is that there should be consultation and the cultural perspective of first nations, Métis and Inuit communities needs to be taken into account.

I want to close by mentioning the importance of investing in community resources. There is a youth detox and youth stabilization program under way in my riding, run by a program manager and called ADAPT. This program is aimed at helping youth deal with addictions and substance abuse. The local RCMP officers in our community are actively involved in this program because it is a critical element in helping youth stay out of the prison system and also in working closely with the community to make sure that rehabilitation is there to help potential young offenders, their families and the community at large deal with some very serious issues.

I would urge members of the House to reject the amendments proposed by the government and get back to looking at the original bill, which actually deals with some very serious crime issues but also encourages us to look at conditional sentences as a tool before the courts to deal with some of the cultural issues facing first nations, Métis and Inuit communities.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Mr. Speaker, while I thank the hon. member for her comments and thoughts, particularly on how this bill applies to our first nations people, my concern is that this particular bill is for all Canadians. While I do understand her concerns and I thank her for having voiced them here in the House, this particular bill is to get tough on crime for all Canadians.

I am a father of five children. I was reading through some of the offences that were gutted from the bill in committee. Quite frankly, it is shocking. I will read some of them now in the House for members.

For example, there is impaired driving causing bodily harm. What if I am walking down the street and someone has decided to drive while impaired and they hit my child? It is house arrest for that person.

Next is assault with a weapon. We are talking about a weapon and assaulting a fellow Canadian. Again it is house arrest.

Kidnapping and forcible confinement are next. Once again, I am concerned for my family and my children. I do not think I stand here alone. I believe I am speaking for Canadians who are worried about crime.

Next is abduction of persons under the age of 14. Four of my children are under the age of 14. This concerns me greatly.

Next is breaking and entering with intent. Here I would ask people to imagine themselves in their home when someone breaks in and enters their home. They have invaded our privacy. They have invaded our sanctuary. They may have assaulted us with a weapon at the same time. They are going to get house arrest.

Putting party politics aside, how do Canadians feel about these crimes? How do my colleagues feel about these crimes and this idea of house arrest for serious crimes such as these?

I have a question for my colleague. I understand my colleague's concerns, but how does she respond when the bill applies to all Canadians and to their concerns about family safety and their own personal safety within Canada?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I only have to point to the statistics in the United States, where there are 700-plus people incarcerated per 100,000 of population and where supposedly there is this tough on crime approach. It clearly is not working.

Again, I think all members of the House would agree that for those very serious offences we should have a system that takes a look at appropriate incarceration, but I also think we need to ensure that our judiciary has a toolbox and a range of approaches that will allow them to make the most appropriate determination.

Certainly where there have been mistakes in the past, I think we have mechanisms to deal with those issues. I think we do need to also look at a comprehensive package, again, one that looks at incarceration and enforcement as one aspect of it, but we also need to look at the rehabilitation and the prevention. We have to make sure that our communities are addressing some of the poverty issues, for example, which we know drive people to some of those crimes.

We really do need to look at a broader picture so that we have a comprehensive package that makes sure Canadians are safe in their homes.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

Mr. Speaker, there have been about three dozen aboriginal justice reports and inquiries over the last number of years, each pointing to the utilization of the strategies that the member talks about.

Would the member tell the House how she thinks Bill C-9 will continue to contribute to that negative stereotyping and those systemic barriers that are in the system today?

[Jean Crowder, NDP, Nanaimo—Cowichan, BC]

Mr. Speaker, I think that is one of the big challenges with the bill. It does not look at the systemic and discriminatory barriers that are already in place in the criminal justice system. It does nothing to address the poverty issues in first nations, Métis and Inuit communities that contribute to the kinds of challenges we have.

If as a society we want to say that we respect human rights, I think we really do need to look at a justice system that is also culturally appropriate. Bill C-9 fails to do that.

[The Acting Speaker, Royal Galipeau]

It being 4:52 p.m., pursuant to order adopted earlier today it is my duty to interrupt the deliberations and to put the question on Motion No. 1.

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

No.

[The Acting Speaker, Royal Galipeau]

All those in favour of the motion will please say yea.

[Some hon. members]

Yea.

[The Acting Speaker, Royal Galipeau]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Acting Speaker, Royal Galipeau]

In my opinion the yeas have it.

And five or more members having risen:

[Karen Redman, Liberal, Kitchener Centre, ON]

Mr. Speaker, I ask that the vote be deferred until the end of government orders.

[The Acting Speaker, Royal Galipeau]

So ordered.

The House resumed consideration of Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), as reported (without amendment) from the committee, and of Motion No. 1.

Criminal Code

[The Speaker, Peter Milliken]

The House will now proceed to the taking of the deferred recorded division on the motion at report stage of Bill C-9.

The question is on Motion No. 1.

(The House divided on the amendment, which was negatived on the following division:)

Vote #53

[The Speaker, Peter Milliken]

I declare the amendment lost.

[Vic Toews, Conservative, Minister of Justice]

moved that the bill be concurred in.

[Jay Hill, Conservative, Prince George—Peace River, BC]

Mr. Speaker, I think if you were to seek it, you would find unanimous consent to pass report stage of Bill C-9 on division.

[The Speaker, Peter Milliken]

Is it agreed?

The hon. whip for the Bloc Québécois.

[Michel Guimond, Bloc, Montmorency—Charlevoix—Haute-Côte-Nord, QC]

Mr. Speaker, I would just like to understand. In light of the prior discussions among the whips, I had understood that all the parties supported the bill now before us.

[The Speaker, Peter Milliken]

Shall the motion carry?

[Some hon. members]

Agreed.

[The Speaker, Peter Milliken]

I declare the motion carried.

(Motion agreed to)

When shall the bill be read the third time? By leave now?

[Some hon. members]

Agreed.

No.