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David Smith

The Hon. David P. Smith, P.C., Q.C., B.A. LL.B. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator David Smith represents Ontario, and has served in the Senate since June 25, 2002.

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Safe Streets and Communities Bill—Allotment of Time for Debate

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Statement made on 01 March 2012 by Senator Mobina Jaffer

Hon. Mobina S. B. Jaffer:

Honourable senators, I rise today to speak to the government's closure motion on Bill C-10.

Bill C-10, as all honourable senators are aware, is an omnibus crime bill consisting of nine separate pieces of legislation that had been dealt with separately during the Third Session of the Fortieth Parliament. There are nine bills in this omnibus bill.

The Standing Senate Committee on Legal and Constitutional Affairs sat for over 50 hours and heard from 111 witnesses. We heard from victims, former judges, many police officers and people who worked for offenders. Even after hearing from all these witnesses, we were not able to thoroughly examine all aspects of Bill C-10.

I personally have received over 10,000 emails, hundreds of phone calls and handfuls of letters, all of which express concern about this bill. This morning, an electronic petition was sent to my office by an organization called Leadnow. This petition included over 50,000 signatures of people who are not in favour of Bill C-10. Unfortunately, I was mistakenly under the impression that we would be further debating this bill thoroughly in this chamber and touching upon the many problems present in this omnibus crime bill. There are many issues that I would have liked to debate in our Senate Chamber — issues that are important, complex and deeply embedded in this bill.

The work done by Justice Nunn is often cited when we speak of Bill C-10. In fact, it is often stated that it was the report of Justice Nunn that brought this bill before us. Knowing this, I was troubled to hear Justice Nunn, when he appeared before our committee, voice concern over mandatory minimum sentencing and state that he was not in favour of it.

Honourable senators, if a person whose report is directly reflected in this bill and who is often given credit by the government for Bill C-10 has doubts, then do we not also have reason to be concerned? To me, this is a sign that this bill needs to be examined more carefully in this chamber.

Since my time is limited today, I will touch upon a few of the many pressing concerns that I have and will also discuss two amendments that I brought forward in committee and would have liked to introduce in this chamber. The first was a safety valve amendment to mandatory sentencing, which states:

A court sentencing a person who is convicted of an offence under this part, for which a minimum punishment is prescribed by the law, is not required to impose the minimum punishment if the court is of the opinion that:

(a) there are exceptional circumstances relating to the offence or the offender; and

(b) imposing the minimum punishment, having regard to all the circumstances, would be excessive or unreasonable.

Honourable senators, this amendment reflects what our committee heard many times from many people, such as the Canadian Bar Association and many others, including Justice Nunn. This was known as the "safety valve amendment." I drew the committee's attention to the importance of leaving some kind of discretion to the judge in exceptional circumstances when sentencing, even when mandatory minimums are imposed by Bill C-10. The effect of this amendment is to not tie the hands of the judge with mandatory minimum sentence provisions advanced by Bill C-10 and to allow the judge to consider factors that would make such a sentence excessive or unreasonable and to impose an alternative or lesser sentence.

The Canadian Bar Association and the Aboriginal Legal Services of Toronto wanted a general safety valve that would apply to all mandatory minimum sentences currently found in the Criminal Code. They pointed out many other countries that have safety valves, such as the United Kingdom, Australia and the United States. The effect of this amendment is that we all know we need to give the judge some flexibility in exceptional circumstances.

I also introduced in committee an amendment on mental health considerations for drug offences. It states:

A court sentencing a person who is convicted of an offence under this Part may, if satisfied that the person requires mental health care, delay sentencing to enable the offender to participate in a mental health program approved by the Attorney General or to receive mental health treatment.

Additionally, it states:

If the offender successfully completes a program under subsection (6) or if the mental health treatment is ongoing, the court is not required to impose the minimum punishment for the offence for which the person was convicted.

The committee heard from the Commissioner of the Correctional Service of Canada, Mr. Don Head, that 13 per cent of men and 29 per cent of women have mental disorders in our prison system; and this only applies to the drug section.

Several witnesses drew attention to the importance of adopting this amendment. Mr. Howard Sapers, the Correctional Investigator of Canada, said that the profile of inmates was changing. I want honourable senators to reflect on this statement when sleeping tonight because it haunts me: Mr. Sapers said, "Prisons are not hospitals, but some offenders are patients." I repeat: "Prisons are not hospitals, but some offenders are patients."

Dr. John Bradford said that in jail there is a controlled situation, while in a mental institution there is one-on-one care to help a person heal. Let them get that care first and then they can come back in front of the judge, which advocates treating offenders rather than putting them in jail.

Honourable senators, many things have been mentioned in this chamber, but two acts have not been touched, and they are very close to my heart. One is the Justice for Victims of Terrorism Act, to deter acts of terrorism against Canada and Canadians. The act states that both Canadians and people all over the world are entitled to live their lives in peace, freedom and security. Bill C-10 was introduced in the Senate in the last session in the form of Bill S-10. Senator Segal and Senator Tkachuk will attest to the fact that I was very concerned and agitated about this because once a victim has started an action against a foreign state, if for some reason the relationship between our country and the said foreign state improves, the victim's action would then be defeated as the foreign state would be given immunity.

I am very pleased to see my concerns have been addressed in this new bill, which states:

If proceedings for support of terrorism are commenced against a foreign state that is set out on the list, the subsequent removal of the foreign state from the list does not have the effect of restoring the state's immunity from the jurisdiction of a court in respect of those proceedings or any related appeal or enforcement proceedings.

Honourable senators, this shows that we can change bills and that we can make differences for Canadians. However, there are many more improvements that still need to be made to this bill. Our committee heard from a number of witnesses last week who raised some very important concerns. We need to give these concerns proper consideration.

For example, our committee was advised by David Quayat and Hilary Young very clearly that, under our federalism the constitutional division of powers creating causes of actions is generally a provincial power. My concern is that we are raising the expectations of victims of terrorist acts and, when they finally sue the person who has caused them harm, they may find that they will not be as successful and they may be once again let down.

Another act that is of particular concern to me is the Immigration and Refugee Protection Act. This bill will allow immigration officers to refuse work permits for foreign nationals deemed to be at risk of exploitation based upon ministerial instructions — a very laudable thing. This amendment is meant to prevent trafficking, abuse and exploitation of vulnerable immigrants, especially women. However, the components of this bill are also very troubling.

For example, under this bill, an employer applies to Human Resources and Skills Development Canada for a labour market opinion setting out that there is no one in Canada that can do the job. The employer is then granted permission to bring a foreign employee in on a work permit. The challenge I have with this provision, one that I would like to have debated, is why, then, is the employee denied the work permit?

In my opinion, if we are trying to protect vulnerable people, especially women, the fairer situation would be to stop the root of the problem and stop the employers from obtaining labour market opinions to hire the employees in the first place, rather than once the work permit has been given.

[each senator has 10 minutes for debate; Senator Jaffer's time has expired]

Please click here to read the full text of this debate

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