Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those in favour, please say “yea.”

Some Hon. Senators: No.

Some Hon. Senators: Agreed.

The Hon. the Speaker pro tempore: Is it your pleasure, honourable senators, to adopt the motion?

An Hon. Senator: Dispense.

The Hon. the Speaker pro tempore: In amendment, it is moved by the Honourable Senator Carignan that — shall I dispense?

Hon. Senators: Question.

The Hon. the Speaker pro tempore: Are honourable senators ready for the question?

Hon. Paula Simons: Thank you, Senator Cotter.

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

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

The Hon. the Speaker pro tempore: Senator Cotter, will you take a question?

Some Hon. Senators: Hear, hear.

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

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

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

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

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

Thank you very much.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thank you.

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

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

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

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

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

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

The Hon. the Speaker pro tempore: Senator Carignan, will you answer questions? You have two minutes.

Hon. Claude Carignan: Therefore, honourable senators, in amendment, I move:

That Bill C-21 be not now read a third time, but that it be amended on page 28 by adding the following after line 20:

Hon. Claude Carignan: Colleagues, I rise today to speak to Bill C-21, An Act to amend certain Acts and to make consequential amendments regarding firearms. As previously mentioned, there is very little in the bill in its current form that addresses the reality of gun crimes as they happen in Canada today. The title that the government used last year to describe Bill C-21 in its press materials was “A comprehensive strategy to address gun violence and strengthen gun laws in Canada.”

Colleagues, that is how the government refers to Bill C-21. However, when we examine this document, we see that there is virtually nothing in its measures to crack down on gun crime.

With Bill C-21, the government claims that by increasing the maximum sentence for firearms trafficking from 10 to 14 years, it is trying to address the light sentences often handed down by our courts. However, the data show that the courts are not even imposing the current maximum penalty of 10 years. In fact, virtually no firearms trafficking cases have been subject to the most severe sentencing options. In testimony last year before the House of Commons committee regarding this bill, André Gélinas, a retired detective sergeant from the Montreal police service, said, and I quote:

The bill also proposes raising the maximum penalty for people found guilty of firearms trafficking from 10 to 14 years. At first glance, this appears to be a good move, but no defendants have ever been sentenced to the current 10-year maximum sentence for this offence. The measure will have no real effect. It is another example of an ineffective measure.

When Mr. Gélinas appeared before the Standing Senate Committee on National Security, Defence and Veterans Affairs, he once again talked about how frustrated police officers are about this. Those frustrations are shared by victims of crime and other law enforcement officers — not just retired police officers, but also the police chiefs and deputy police chiefs who appeared before us.

For example, the deputy chief constable of the Vancouver Police Department, Fiona Wilson, said the following in committee, and I quote:

With the exception of domestic violence and police shootings, where police are the victims, we’re generally not seeing lawful gun owners being responsible for the shootings in the city of Vancouver. Without exceptions, those are firearms that are not lawfully possessed in the first instance.

On the subject of gun violence in Vancouver over the past year, Deputy Chief Constable Wilson said the following, and I quote:

To date in Vancouver, we have had 22 shots-fired incidents in 2023 resulting in three homicides and 16 people wounded. Fifteen of the 21 incidents have confirmed or suspected links to gangs.

Deputy Chief Bill Fordy from the Canadian Association of Chiefs of Police appeared before our committee and stated the following:

 . . . it is important for our citizens to remember that in Canada ownership of a firearm is not a right, it is a privilege. Legislation must strike an appropriate balance between the rights of the accused and those of victims, survivors, communities, police officers and public safety to help mitigate the impact of the worst outcomes of firearms.

Then, Deputy Chief Bill Fordy recommended the following during his testimony:

 . . . provide sentencing judges with the discretionary ability to increase parole ineligibility to two thirds of a custodial sentence when the court finds that an offender has discharged a firearm in a congregate setting in committing the offence, and that this discretionary ability on sentencing be extended to those who are found to be parties to such offences.

Therefore, honourable senators, the penalty imposed for discharging a firearm in a public location must have teeth. It must produce results. This is what many police officers are asking for.

Every time we propose measures to strengthen the law and incorporate mandatory minimum sentences for serious crimes, the government comes out with its usual argument, questioning the constitutionality of such measures. For example, Senator Cardozo mentioned something along those lines before the committee when he said that mandatory minimum sentences would require the use of the notwithstanding clause. However, this general statement is simply inaccurate. In R. v. Lloyd, the Supreme Court of Canada stated the following, and I quote:

 . . . Parliament is not obliged to create exemptions to mandatory minimums as a matter of constitutional law. . . . Whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take, are questions of policy that are within the exclusive domain of Parliament.

Furthermore, the Supreme Court confirmed that position in subsequent rulings. Earlier this year, the court upheld the constitutionality of the four-year mandatory minimum sentence for a robbery committed with a non-restricted firearm. In fact, in R. v. Hilbach, the court concluded the following, and I quote from the majority opinion:

The mandatory minimum—

 — which is four years for using a non-restricted firearm during a robbery —

 — does not shock the conscience or is not so excessive as to outrage standards of decency. While the punishment is severe, the high threshold for gross disproportionality is not met.

Unfortunately, because of Bill C-5, which received Royal Assent on November 17, 2022, the government repealed this mandatory four-year sentence for the use of a non-restricted firearm during a robbery. Two months later, however, the Supreme Court confirmed the constitutionality of this sentence. Why did the government not try to reintroduce this sentence to the Criminal Code, if it truly intended to better protect Canadians against gun crime? We might wonder whether the government read R v. Hilbach. The court found that this inherently dangerous offence induces terror in the victims and is committed only by offenders who make the conscious decision to use a firearm to rob or endanger the safety of others.

The government is defying all reason and jurisprudence by being unwilling to impose tough penalties for serious gun crimes, even though jurisprudence provides it with plenty of leeway.

This leads me to propose an amendment today that was first put to us in committee by the Canadian Association of Chiefs of Police. This amendment would create an additional provision in the law so that a death that results from the discharge of a firearm in a congregate setting would be subject to automatic consideration for first-degree murder under subsection 231(4) of the Criminal Code.

Not only is the criminal use of firearms increasingly common in urban areas, but firearms are also sometimes discharged in public places without anyone realizing the impact on innocent bystanders.

On Monday, November 27, while the National Security, Defence and Veterans Affairs Committee was hearing from witnesses on Bill C-21, there was a shooting in a public parking lot in Gatineau, in broad daylight. In a video captured by a surveillance camera, we can see a person in a parking lot stretching out their arm as though they have a gun in their hand and pointing it at a moving vehicle. That scene is immediately followed by what sounds like two successive gunshots. A few metres away, we can see children walking on the sidewalk. According to the police, the incident occurred at 4:45 p.m. near Eddy Street. Two men were wounded in that shooting. In other words, a shooting occurred five minutes from here while we were studying the amendments to Bill C-21 in order to impose harsher sentences for shots fired in public places.

We have also seen many shootings in Toronto and Montreal where innocent bystanders were wounded or killed when gang members recklessly opened fire on their rivals.

In my opinion, the government must take strong action to combat these criminals’ sense of impunity, as Chief Inspector David Bertrand from the Montreal police force said in his testimony before the Senate committee during the study of Bill C-5:

What we want to work on is the perception that mandatory sentences are being maintained. We want to work on the criminal’s sense of impunity at two levels. The sense of impunity is the certainty of being caught when committing a crime and the certainty of suffering the consequences.

Such reckless acts with firearms, especially when they cause death, should carry the harshest penalties, but often don’t.

Also, take the case of Christopher Husbands, who opened fire in the food court at the Eaton Centre in Toronto in 2012. Originally, he was convicted only of second-degree murder for a shooting spree that left two people dead and several others injured. Originally, he was sentenced to life without parole for 30 years. However, on appeal, he was granted a retrial and was convicted at the second trial of manslaughter only. Although Christopher Husbands received a life sentence again, this time for manslaughter, the early parole eligibility period, which is mandatory for manslaughter convictions, meant that he became eligible for early parole in 2021, nine years after he committed this heinous crime. For the victims’ families, this is simply abhorrent.

I therefore wish to propose an amendment, as recommended by the Canadian Association of Chiefs of Police, which would ensure that any death resulting from a shooting in a public place would be considered first-degree murder. I think this amendment reflects the reality that there are people who discharge their firearms in a completely reckless and careless manner.

The Hon. the Speaker pro tempore: The vote will occur at 5:26 p.m.

Motion in amendment of the Honourable Senator Boisvenu negatived on the following division:

On the Order:

Resuming debate on the motion of the Honourable Senator Moodie, seconded by the Honourable Senator Miville-Dechêne, for the third reading of Bill C-35, An Act respecting early learning and child care in Canada, as amended.

Hon. Senators: Agreed.