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.