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.

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.

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.

Some Hon. Senators: Hear, hear.

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

Some Hon. Senators: Nay.

The Hon. the Speaker pro tempore: I do believe the “nays” have it.

And two honourable senators having risen:

An Hon. Senator: Defer the vote to the next sitting of the Senate.

The Hon. the Speaker pro tempore: Pursuant to rule 9-10, the vote is deferred to 5:30 p.m. on the next day the Senate sits, with the bells to ring at 5:15 p.m.

(At 7:54 p.m., the Senate was continued until tomorrow at 2 p.m.)

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?

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

Some Hon. Senators: Yea.

The Hon. the Speaker pro tempore: All those against, please say “nay.”