Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Mr. Speaker, as members are aware, Bill C-13, an act to amend the Criminal Code, DNA Identification Act and the National Defence Act was passed, one might say, with some haste by the House and the Senate last May.

Major amendments were adopted by the House standing committee, including amendments to effect a compromise among the parties, that expanded the definition of “designated offence” and the scope of the retroactive DNA data bank order provisions which were aimed at collecting DNA from offenders convicted of serious crimes prior to June 30, 2000. The bill, as amended, received the support of all parties.

The bill provided for a limited number of amendments to come into force on royal assent and the rest to come into force on proclamation. The important amendments in force are those that expand the retroactive DNA collection scheme in the Criminal Code and those that simplify communication of DNA profiles between laboratories to determine whether a crime scene profile matches another profile in the national DNA data bank.

The major amendments in Bill C-13 that have not yet been brought into force include the changes to the definitions of designated offences which will allow for the making of many more DNA data bank orders and will allow the police to apply for a DNA warrant in many more cases and the provisions allowing a judge to fix a time and place for taking a DNA sample from a convicted offender and authorizing the issuing of a warrant for the arrest of that offender if he does not show up as required.

Officials from Justice Canada, Public Safety and Emergency Preparedness Canada, Correctional Service Canada, the RCMP, the national DNA data bank and the provinces have been preparing for the proclamation of the remaining provisions. They have identified certain technical problems that should be corrected prior to proclamation and certain procedures that should be modified to increase the efficiency and reduce costs.

Because it is urgent to adopt this bill before the budget may be defeated, the changes were drafted and passed, even though their thorough examination, the review of the necessary consequential amendments and the identification of all the consequences and of the changes required, which took place at report stage, at third reading or in the other place, were not available.

I will not list all the technical problems in Bill C-13 that the officials have requested to be fixed and which have led to the amendments that have been incorporated in Bill C-72. However Bill C-72 includes provisions to amend the legislation to address the following problems.

First, the amendments to the definitions of primary designated offence and secondary designated offence do not fit together.

Second, the forms were not changed to reflect the changes made in the procedures for obtaining an order in retroactive proceedings and in the definition of secondary designated offence.

Third, the French and English versions of the clause in the DNA Identification Act authorizing the commissioner to provide further information in a moderate match case are different.

Fourth, the French and English versions of the section authorizing the international sharing of DNA profiles set out different information the commissioner can provide. The English version forbids the sending of profiles internationally, which could hamper Canada assisting its international partners through Interpol.

Bill C-72 also proposes changes requested by the provinces to streamline procedures and reduce costs.

The decision to amend Bill C-13 so that those convicted of murder, sexual offence or manslaughter are targeted by the provisions on the taking of DNA samples resulted in an additional 4,000 individuals being targeted by these provisions.

The Criminal Code provides that, in these cases, hearings are held ex parte. However, the Ontario Court of Appeal ruled that an offender has the right to get a notice of the order for retroactive application and to appear during the hearing for that application, unless there is a risk that the individual might flee.

Because a decision of the Supreme Court of Canada is not expected for more than a year, the other provinces have decided, as a precaution against an adverse judgment, to serve notice on all persons against whom they are seeking an authorization to take a DNA sample, including incarcerated offenders. Many offenders are incarcerated in a province other than the one where they committed the offence. The police and the Crown in the jurisdiction where the offence took place are best placed to make the application for the order.

There is concern that many of these offenders will seek to be represented. Transporting these incarcerated offenders around the country for hearings would be very expensive for Correctional Services Canada and could present serious risk of flight by offenders who are serving lengthy sentences with little prospect of being released. The officials have therefore proposed that the DNA legislation permit retroactive hearings by video link, and this change is proposed in Bill C-72.

Another procedural change that will simplify procedures and reduce costs is the amendment proposed by Bill C-72 with respect to the procedure respecting those cases where the national DNA data bank has received, for inclusion in the convicted offenders' index, a sample taken pursuant to an order that on its face does not refer to a conviction for a designated offence. As members know, the Criminal Code only authorizes the making of a DNA data bank order where the person has been convicted of a designated offence. Nevertheless, the data bank has now received more than 700 such orders and accompanying seized samples of body substances.

Section 5.1 of the DNA Identification Act, as enacted by the former bill, Bill C-13, provides that the commissioner of the RCMP is to return such orders to the attorney general for the province where the conviction was obtained or to the director of military prosecutions. They are to investigate the matter and if they conclude that the making of an order was, indeed, not authorized by the Criminal Code or the National Defence Act because the person had not been convicted of a designated offence, they are to seek from a judge of the appellate court an order quashing the authorization.

Last August, Ontario proposed a resolution in the criminal law section of the Uniform Law Conference that this procedure be changed so that:

where the Attorney General agrees that the order was taken for a non-designated offence, the Attorney General confirms this in writing to the Commissioner of the National Databank who would then be authorized to destroy the sample.

This resolution was adopted and, having reviewed this matter in light of the discussions at the Uniform Law Conference, the government has concluded that it is not necessary to revoke the DNA data bank orders as they have been carried out precisely as the court had ordered.

The commissioner of the RCMP is not, however, blindly to process the bodily sample and enter the profile in accordance with the order that is received. He has an independent duty to decide whether the order meets the requirements of the DNA Identification Act.

The proposed amendment in Bill C-72 would simplify the procedure for the attorney general or the director of military prosecutions, setting out what they are to follow where the order should not have been made. Instead of having to make an application with its attendant costs and delays, the attorney general can confirm that the person was not convicted of a designated offence.

I believe members will agree that this procedure is appropriate as the question involves no legal issues to be decided by the appeal court but simply the question of fact of whether the offender was convicted of the designated offence, which can be answered simply by reviewing the file.

I believe Bill C-72 is an important bill which, if adopted, will greatly facilitate the implementation of Bill C-13. Accordingly, I would urge all parties of this House to adopt the bill as quickly as possible.

Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Madam Speaker, I understand the member's concern for the hunting and fishing communities and those who enjoy our wildlife and the sport that wildlife provide. I use the term “sport” because obviously those who are truly sporting are people who treat animals in a humane way.

There may be exceptions to the rule, but clearly this bill is trying to approach those who would in fact take advantage of a situation, as was suggested by my colleague, and would maim animals. That is simply inappropriate.

A question has been raised in the House concerning this bill on which I would like the hon. member's opinion. If someone does something that is considered to be brutal or vicious in the way in which the person kills an animal but the animal dies instantly, does the member think there should be a variation in the way in which that person is treated in relation to that particular situation? An example would be if someone tied a dog to a railroad track and a train came along and killed it instantly. Would he look at it differently if the dog was only maimed by the train and ultimately died later?

Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Mr. Speaker, it is a pleasure to have the opportunity to address the member's question because clearly there is no doubt about crystal meth and its implications. The member's original question was based upon whether we would be bringing forward mandatory minimum penalties in order to deal with this issue.

The hon. member's proposal to encourage mandatory minimum penalties for offenders involved in the drug trade is no doubt well intentioned. Liberal members take second place to no one in the House in working to ensure the protection of society. Unfortunately, history tells us that stiffer sentences alone will not achieve this.

Even though it is true that Canada's sentencing approach prefers to give the court discretion to fashion a fit sentence that is proportional to the gravity of the offence and the conduct of the offender, our Criminal Code already provides 42 mandatory minimum penalties which denounce--and I underline the word “denounce”--the acts identified therein.

As I have already mentioned, apart from the mandatory minimum penalty for murder, there are mandatory minimums of four years for the use of a firearm in 10 different listed offences.

I was present at last week's meeting of the federal, provincial and territorial justice ministers in Whitehorse. Minister Cotler indicated that he was prepared to seek authority to enact additional measured mandatory minimum penalties for firearms offences to denounce such activity. That is part of a tripartite strategy. Such a strategy would include not only the legislation aspect but more effective enforcement as well as preventive and social initiatives that address the root causes of crime.

The ministers talked about ways to increase the effectiveness of sentencing, with particular attention given to a discussion of the use of mandatory minimum sentences. A special ad hoc group of officials will work on these issues over the winter.

Federal, provincial and territorial ministers also endorsed recommendations on ways to strengthen how the concerns about crystal meth can be dealt with within the criminal justice system, for in fact it is obviously a matter of some concern to all of us who are aware of the issue.

Research on the effectiveness of minimum sentences shows that they have no deterrent or educational effect according to the Law Reform Commission and that they are no more effective for crime prevention than lighter sentences are. That was confirmed in 2001 by a study commissioned by Justice Canada that found there was no correlation between the crime rate and the severity of sentences.

That refers to the study of Gabor and Crutcher, “Mandatory Minimum Penalties: Their Effects on Crime, Sentencing Disparities, and Justice System Expenditures” for the Department of Justice in 2001.

The study commissioned by Justice Canada summarized findings from a review of sentencing arrangements in a number of common law jurisdictions other than the United States and was released in September of this year. It is now available at the Department of Justice website.

The study found that in those countries where mandatory minimum penalties do exist, they are mostly for murder, and in every case they provide a court with the ability to sentence under the minimum in exceptional circumstances. That refers to the study by Julian V. Roberts, “Mandatory Sentences of Imprisonment in Common Law Jurisdictions: Some Representative Models”, from the Department of Justice in 2005.

The study also shows that recent polls conducted in Australia and the United States demonstrate that public support for mandatory minimum penalties has declined in recent years. The U.S. uses mandatory--

Hon. Paul Harold Macklin

Mr. Speaker, there is no doubt in terms of our belief that the crystal meth concern is real. I think the government has indicated that it is prepared to consider many ways of approaching this, first of course through changing the precursor regulations to deal with the specific chemicals that go into the makeup of these drugs: red phosphorous and ephedrine.

The reality is that we are trying to do whatever we can to denounce this and to make sure that this conduct goes no further. This year we have substantially increased the penalty provisions within the Criminal Code to deal with issues of a similar nature, but in fact I think where we are placing ourselves today is that we have to deal with the root causes within the areas where crystal meth is actually being used. We have to deal with the chemicals that go into the manufacture of that particular substance. We have to make sure that we deal with those chemicals in a way that will stop that flow and therefore stop the--

Hon. Paul Harold Macklin (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, Lib.)

Madam Speaker, I rise today to speak to the amendments to the Criminal Code proposed by the hon. member for Wild Rose in Bill C-329.

The bill summary tells us that the purpose of this enactment is to give a peace office the power to arrest without a warrant a person who is in breach of a probation order binding the person or a condition of the person's parole.

As you know, Madam Speaker, the Criminal Code already contains provisions that enable the police to arrest persons without a warrant. It might be instructive, however, if we took a few moments to review these provisions.

Subsection 495(1) of the Criminal Code provides the police with the power to arrest without warrant a person whom first, the officer believes on reasonable grounds has committed an indictable offence, which would be in the past; second, who the officer believes on reasonable grounds is about to commit an indictable offence, which would be a future offence; or third, one who is actually committing a criminal offence, which would obviously be in the present.

However, this power of arrest without warrant is circumscribed by subsection 495(2) of the Criminal Code. Here is what subsection 495(2) provides:

(2) A peace officer shall not arrest a person without warrant for

(a) an indictable offence mentioned in section 553,

Theft where the alleged value of the subject matter of the offence does not exceed $5,000 would be an example of such an offence. It continues:

(b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or

(c) an offence punishable on summary conviction,

in any case where

(d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence, or

(iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and

(e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.

In other words, while the Criminal Code authorizes the police to arrest a person without an arrest warrant in circumstances that would allow a peace officer to reasonably believe that the person is connected to the commission of a criminal offence, it also places reasonable limits on that authority.

Reading subsection 733.1(1) of the Criminal Code, the offence of failure to comply with a probation order, and paragraph 495(1)(a) together, it is clear that a peace officer already has the power to arrest without a warrant a person who has committed the offence described in subsection 733.1(1), or who on reasonable grounds he believes has committed or is about to commit the offence. This would appear to make the proposed new paragraph 495(1)(b.1) redundant.

The new paragraph 495(1)(b.2) of the Criminal Code proposed by Bill C-329 would authorize police officers to arrest without warrant persons who fail to comply with a condition of parole or unescorted temporary absence.

Members should know that non-compliance with a parole condition or a condition attached to an unescorted temporary absence is not a criminal offence. The law is clear. If the act which constitutes the parole violation is in fact the alleged commission of a criminal offence, then section 495 would authorize the arrest without a warrant.

This proposed legislation would give the police the power to arrest without warrant for a mere curfew violation or some other matter which is not a criminal offence and then prevent the release of that person.

What is being proposed here is arrest without warrant for conduct which is not a criminal offence, followed by imprisonment without trial. Just what is to become of that person is not clear. I suppose that the individual would have to apply to the courts for a writ of habeas corpus to secure a release.

These are matters addressed under the Corrections and Conditional Release Act and essentially such conduct should lead to the cancellation of the unescorted temporary absence and the issuance of an apprehension warrant, and where the police officer believes, on reasonable grounds, that such a warrant is in force, he or she may arrest the person without warrant and remand the person into custody.

Similarly, when an offender breaches a condition of parole or statutory release, the person's parole or statutory release may be cancelled and a warrant of apprehension may be issued, and where a peace officer believes on reasonable grounds that such a warrant is in force, he or she may arrest the person without warrant and remand the person into custody.

The supervision of offenders on conditional release is a function assigned solely to parole supervisors under the Corrections and Conditional Release Act. The decision to suspend the conditional release for a breach or to prevent a breach under the CCRA rests with the correctional authorities and the National Parole Board.

When conditional release is suspended, whether for a breach or to prevent a breach, then and only then is there a warrant issued for the arrest of the individual. The proposed Bill C-329 would conflict with the Corrections and Conditional Release Act and its underlying principles.

I suggest the proposed legislation is misdirected and ineffectual as a legislative proposal. The bill is unnecessary. It would not contribute to enhancing the safety of Canadians or making the criminal justice system more effective.