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Joseph Day

The Hon. Joseph A. Day, B.Eng., LL.B., LL.M., P.Eng. A well-known New Brunswick lawyer and engineer, Senator Joseph A. Day was appointed to the Senate by the Rt. Honourable Jean Chrétien on October 4, 2001. He represents the province of New Brunswick and the Senatorial Division of Saint John-Kennebecasis.

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Second reading of Bill C-54, An Act to amend the Criminal Code (sexual offences against children)

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Statement made on 24 March 2011 by Senator Larry Campbell

Hon. Larry W. Campbell:

Honourable senators, I rise today to speak to Bill C-54, An Act to amend the Criminal Code (sexual offences against children). This bill, known as the Protecting Children from Sexual Predators Act, seeks to amend the Criminal Code.

Does this bill actually protect children from sexual predators? If so, does it do so in a balanced manner?

Honourable senators, I have to admit to you that I have not had time to properly digest the speeches and all the committee transcripts from the other place, given that we only received the bill on Monday. However, from what I have read, and from my quick reading of the bill, I have the following concerns and questions.

First, this bill seeks to increase or impose mandatory minimum penalties for certain sexual offences with respect to children.

Honourable senators, it seems as though mandatory minimum sentences are the government's only solution to crime in general. It is a one-size-fits-all solution for the Harper government. I have not seen any research that shows that the mandatory minimums imposed in 2005, those that we now propose to increase with Bill C-54, have been effective or not. So what is the government relying on to request these increases? Our committee should hear evidence from the minister and his officials regarding the effectiveness of the current mandatory minimum sentences before agreeing to them.

By way of history, I have some knowledge regarding the investigation and prosecution of crimes as described in this bill. Quite frankly, like you, I am sure, I have no sympathy for those who commit these crimes against one of the most vulnerable populations, our children.

The problem I have is with the idea of mandatory sentencing. If one really believed that mandatory sentences was a deterrent, then the minimum for these offences would be measured in multi-years, not single years. By law, offenders would be put into the general prison population and not protected from others. There would be no glass house. By way of explanation, the term "glass house" refers to area where those who commit crimes against children are held. They spend their time with informants, rapists and other child molesters, and those who face grave danger in the prison population. If this was built into law, those committing the crime would not only be facing a long time in jail, but they would be serving their time with those who consider them less than desirable.

It would be less than true for me not to admit to you that on many occasions an eye for an eye has seemed the proper course for an offender who commits these types of offences. Of course, this is not something suggested in the bill nor, I suspect, would it gain any support from Canadians.

In the course of my work, I have also met with victims and victims' families. I, unfortunately, had some involvement with Clifford Olson. Through that tragic process, I met Gary and Sharon Rosenfeldt. Through their hard work, the concerns and feelings of victims finally came on to the radar screen. Now it is considered a normal course of events, but at the time this was not a consideration. Senator Boisvenu most certainly knows of what I speak. He has dedicated his life to this very important issue, and I applaud him for that dedication. There is an absolute need to understand the pain and the level of injury perpetrated not only upon the victims but also upon the victims' families.

Honourable senators, there is a further issue pertaining to the mandatory minimum sentences. Senator Runciman referred to statistics concerning charges involving sexual assaults on children. To understand this, I refer you to the speech in the House of Commons by Bob Dechert, Parliamentary Secretary to the Minister of Justice, who said:

In 2008, 80% of all sexual assaults of children reported to police were charged under the general sexual assault offence in section 271 of the Criminal Code, sometimes referred to as a level one sexual assault; 19% were charged under one of the child specific or other sexual offences, such as for example section 151, sexual interference; and the remaining 1% were charged under the two most serious general sexual assault offences, levels two and three sexual assault, namely sexual assault with a weapon, threats to a third party or causing bodily harm under section 272, and aggravated sexual assault under section 273.

From a sentencing perspective, this means in 81% of all sexual assault cases involving child victims in 2008, there was no mandatory minimum sentence.

Why is that? Why are 80 per cent of offenders not being charged under the existing child specific sections of the Criminal Code that have mandatory minimums attached?

Honourable senators, let me suggest a few possibilities. While it has been many years since I appeared in court — as a witness — there was a theme developing then when it came to prosecutions. We always referred to it as "Let's make a deal" or, in some cases, GOMERing. GOMER is a term used in a book called The House of God. It is a novel about a hospital in the United States, and GOMER is an acronym used in the emergency room that stands for "Get Out of My Emergency Room." When a patient came into emergency, you would GOMER the patient. You would GOMER them to neuro, to cardiology or to some other department, but you would get them out of your emergency room. In the case of a prosecution, a plea to a lesser charge would be accepted to make the case go away without trial.

I recognize, possibly as much as most senators, that this is necessary in some cases, for a variety of reasons. Surely, it is not acceptable that 80 per cent of the cases involving child offenders are GOMERed. The prosecutor ultimately makes the decision. That decision also means that the judge hearing the case gets a much-sanitized version of the facts, which again can minimize the severity of the offence.

Honourable senators, the second possibility is that in many cases the police are not trained to deal with cases that are very difficult, heart-rending and sensitive to investigate. How do you question a child? How do you test the information that you receive from a child? How are you able to treat the investigation in a neutral manner given the sometimes-horrendous nature of the offence?

Whenever possible, I tried to have a Crown involved from the outset. This led to a clear and concise investigation that gave the Crown all the evidence they would need, or would give me the direction that I would have to take in my investigation to try to determine whether there was such evidence.

Honourable senators, this bill should not and must not be given short shrift in committee. Like all honourable senators, I understand the fragility of this session. It would, quite frankly, be wrong to rush this bill through committee without full consideration. This appears, on the face of it, to be a serious problem. What is at the root of this 80 per cent phenomenon? Are these provisions not properly drafted? The committee should make it a point to call upon seasoned police officers and Crown and defence attorneys to try to come up with the reason behind this.

Finally, Bill C-54 was not on the list of bills on which the Liberals in the House of Commons asked for costing details. From my point of view, the cost to deal with this issue is a side issue and is not important. However, it is one that must be considered in the overall costing when dealing with the penal system, the justice system and policing costs. I sincerely hope that given recent developments, once asked, the answers will be forthcoming.

Honourable senators, there can be no question that the safety of our children is first and foremost in our minds. Bill C-54 needs to be properly studied in order to ensure that the children are being protected and that the bill is effective in achieving what is set out within it.

I look forward to the findings of the Standing Senate Committee on Legal and Constitutional Affairs.

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