Bill C-10 (Historical)

An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act

This enactment amends the Criminal Code to provide for escalating minimum penalties according to the number, if any, of previous convictions for serious offences involving the use of a firearm if the firearm is either a restricted or prohibited firearm or if the offence was committed in connection with a criminal organization, to provide for escalating minimum penalties according to the number, if any, of previous convictions for other firearm-related offences and to create two new offences: breaking and entering to steal a firearm and robbery to steal a firearm.

[Royland Moriah]

I don't know that I'll dwell on it anymore, but I think I'm going to reiterate what my colleagues have said.

Certainly, and especially in the African Canadian community, we want people who are using guns to be off the street. I will make that very clear to you. We share in our community the same frustration, because it is mostly members of our community who are being killed.

However, in addressing how we're going to do that, we think it's important to look at what effective strategies we have and whether the strategy we've chosen is going to work. And in terms of what the public has asked for, it is not necessarily Bill C-10. What they have asked for is safety from guns and gangs and violence. That's why we're here today to tell you that mandatory minimums are not an adequate response to guns and gangs and violence.

[Dr. Anthony Doob]

Well, I think the issue is whether you want to do something that's effective or whether you want to do something that might, for a moment, look good. It seems to me that the evidence is overwhelming that what you're going to be doing if you pass this bill is telling the public that something effective is being done when the evidence is clear that we're working in the other direction.

Why does the public want mandatory minimums or tougher laws and so on? They want them because they've been told repeatedly by this Parliament and others that mandatory minimums are the way to solve the problem of crime. This is not a party issue. All three national parties have endorsed mandatory minimums at one point or another. I'm against all three of those parties for that.

I think what one has to do is to ask what it is we can do that will actually do something. So again, to repeat what was just said, getting the gangs and the guns off the street has nothing to do with sentencing. We all agree that's good. We all agree that the sentences that are available in the Criminal Code allow people to be put away for serious crimes for a long period of time.

What you're asking is whether the promise that is explicit in Bill C-10 is a legitimate promise. I am telling you it is not.

[Myron Thompson, Conservative, Wild Rose, AB]

What is your suggestion? Am I out of line by suggesting to you folks that you're not addressing Bill C-10 and that you're addressing the bigger picture? That's fine. I think there's a time to do that, but specifically, the public wants something done in Toronto, Montreal, and other cities. Get the gangs and guns off the streets and help protect our society.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you all for being here.

Welcome, Mr. King, from my home country before I emigrated to Canada in the 1960s. Of course, by looking at you I can see I probably spent my 32 years down there when you were but a twinkle in your mom and pop's eyes. But I'd like to welcome you.

I was kind of pleased to see Mr. Doob with his charts. I think it's always interesting to go back to the 1960s. I think it's also good to go back to the 1920s, you know, this steady incline and then sort of leveling and peaking and all that sort of stuff. I find it really interesting.

Most of the witnesses that we have here I think and what we as politicians are trying to do is answer the pleas of the public. Too many people are dying because of guns and gangs. What are you guys going to do about it? We want these people off the street.

If you ask the public what we should do with these people who are shooting people in Toronto, probably almost 100% will say “Put them in jail.” “Are you willing to pay for more jails? Are you willing to pay the extra costs? Absolutely. I want my kids safe.”

Now, we're talking about a very focused thing in this Bill C-10. We're not talking about a broad range of how we should deal with this. The police like what we're doing. The victims are supporting what Bill C-10 is doing. And I think the public at large is appreciating what we are doing.

People like yourselves come in, and I understand you want to get to the root cause as well. I've talked about the root causes a hundred times. You don't really want to get to the root causes with these issues, but if you did, then you would do something about alcohol. It's a major cause. They tell me that 80% of the people wouldn't be in prison today if it weren't for booze and drugs. I don't know if any of you can, but I can't think of one root cause that justifies anybody picking up a gun and shooting somebody. I cannot think of a root cause that would justify that.

Through that chart, Mr. Doob, that you've shown, we've already made a lot of decisions that help make that climb. I'm talking about the days in the States when they had 21 years for drinking. It went down to 18 for awhile; all hell broke loose in the schools, and now I think they're back to 21 all across the States. They're trying to do something about root causes. I appreciate that.

I'm trying to point out.... In Warkworth Penitentiary out here, it's full of sexual offenders. The last time I was there--I believe you were here that time with me, Mr. Chairman--there were 745 sexual offenders in this place. I visited with lots of the inmates. Of those who sexually attacked the children, almost to a man, they wouldn't be there had they not got hooked on child pornography. They started overusing it, and they got to the point where they had to act out their fantasies, driven by child pornography.

So you come here and you try to fight child pornography, but the government for the last thirteen years has brought things forward and the courts have decided, “Well, that's not quite good because it might infringe on our freedom of expression. Well, you can't do it that way because there might be some artistic merit. Well, there might be some public good. Well, it might serve a useful purpose.”

I think going to the root causes is a futile exercise in this country because we're forever worried about somebody's rights being infringed on, so we never get the job done. For thirteen years now I've asked the government of the past, and I'm asking this government today, to come up with something and get to the root cause of those kinds of offences. Stamp out child pornography. It's not getting anywhere because somewhere some court will decide, “Wait a minute, that doesn't meet the charter test, or that isn't exactly the right thing to do because you'll infringe on....”

My whole message to you folks is that I appreciate you being here, but I don't think you're really focusing enough on the issue of Bill C-10. The public outcry is, “Do something about gangs and guns”, and it's very focused. I think it certainly is not the answer to all the crime that is happening. It's maybe not going to reduce crime, but those who are in jail are not going to do it again.

It's an effort by the politicians to try to accomplish something that (a) the public wants, because we're the servants of the public, and (b) the victims want, because I happen to have a lot more concern about victims than I do about criminals, and (c) is the right thing to do.

If it can be done better, we've got to work at that as time progresses, but we need an immediate answer to guns and gangs and crime, and I think it has to be found through Bill C-10. We can talk about all the issues that we've talked about, but they will not stop if we don't take some serious, concrete action.

[Dr. Anthony Doob]

What I would like to see is a debate about how we should use limited resources to deal with crime. The problem with firearms is not a problem we're having only in Canada. It's a problem that's occurring in other places. What we really need to do about firearms—and obviously I'm not saying anything very important—is to stop people from having them and stop people from carrying them.

What we're really talking about, even if we move to a deterrence model, is looking for ways to apprehend people who have them or keep people from having them. That has to do with catching people, and catching people is unfortunately a lot harder than simply changing laws and fiddling with penalties.

I would say to move away from the penalty structure, because we have plenty of harsh laws that deal with serious crimes having to do with firearms. After all, if it's a prohibited or restricted weapon, what we're talking about at most on a first offence is moving it from four years to five years. I don't think we know many people who would commit an offence for four years but not for five years. It's a silly argument.

What we have to do is think of it in terms of the suppression of firearms, but let's also look at what it is that makes people carry firearms. One of the difficulties—and there is certainly some evidence of this—is that people carry weapons in part because they are frightened of other people carrying weapons. What we have to do is address our communities and address these things. These are much harder. It is a much harder task to do. It's not an area that I would consider to be part of my expertise, but in reading the gang literature from places like Los Angeles, which has very serious gang problems, when the experts there are worried about the narrow approaches we use, all I can say is that their narrow approaches look very much like the narrow approaches we're using.

We have to approach these in a broader fashion. We're not going to solve the problem of gun crime by passing a simple law like Bill C-10. I would say that if this committee wanted to look into this issue about how best to use resources, that would be a very good program for the committee to take on.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm sorry to have missed your presentations. But, today in the House of Commons, there was a debate on re-opening the same sex marriage issue, and I had to make a speech.

I am very pleased to meet Mr. Doob. I have been hearing about you for years now, and I am a strong admirer of what you have produced. I read the study that the Clerk forwarded to us, in which you identify everything that has been written about the deterrence factor associated with minimum mandatory sentences, and you suggest that in that respect, there is absolutely no evidence that they do. But that is not exactly what I would like to discuss with you today.

I believe it has been proven that minimum mandatory sentences do not serve the objectives for which people claim that they are needed and that there is no connection between minimum mandatory sentences and deterrence. I also believe that the government is motivated by ideology alone and that there is no scientific rigour in Bill C-10. Finally, the best thing that could happen would be for Bill C-10 to be defeated by the Committee, right here.

In addition, I would like to know how we can tackle the problem of violence perpetrated by certain street gangs and to what extent we know what the effect of legislation passed to tackle gangsterism has been effective. As you may recall, we passed sections 466, 467 and 468 of the Criminal Code, which now refers to gangsterism.

Does any one of you have suggestions to make with respect to the whole question of guns and gangsterism, smuggling and street gangs? Are you able to share any information with us that could help us refocus the debate on more effective, more inspired actions?

[Dr. Anthony Doob]

In terms of the deterrent issue, he focused largely on Steven Levitt's work. Steven Levitt is, as I said, in large part because of the book Freakonomics, a very well-known person. There are very serious concerns above and beyond this particular study that Professors Webster and Zimring and I did. There are very serious problems that have been raised about a number of different things that Steven Levitt has done, including things like simply not presenting the results of analyses, which are in fact the ones that he describes. Conveniently, certain variables are left out of the equation, which changes dramatically what his findings are.

Mr. Lee, in terms of deterrence, depended largely on two things. One was Steven Levitt's assessment, which I'm saying is fundamentally flawed in large part because of the rather cavalier fashion in which he deals with data, and the second one is the issue of Florida. I couldn't tell from the PowerPoint when it was, and I wasn't able to find on the web the transcription of this committee, so I wasn't able to see when it was Mr. Lee indicated that the change in the law in Florida happened.

The two figures I have here are from a much more detailed study than Mr. Lee's study, because what it did is not only just plot the crime during the 1990s, but it also did quite a sophisticated statistical analysis on overall crime, on violent crime, on homicides, on homicides with firearms, and, again, found no evidence whatsoever.

To answer your question, I go back to Mr. Lee's testimony before you, and I wonder what it was he was saying. These are all public domain articles in refereed journals that are available on the web. These are not in obscure places; they are in the major journals in criminology. He presented information to you that was accurate in the sense that he and I are talking about the same overall trend in Florida crime. The figure I presented from a research piece happened to have in it when the law changed, and it also went back further. My feeling is that what you have to do is look at the overall figure. I think when you do that you see very different things.

Similarly, for example, saying crime is higher than it was in 1962, we do know that. There is no question of that. The question is, what's the relevance of that to Bill C-10? It seems to me that one has to say not whether crime is going up or crime is going down. I would be making exactly the same arguments to you about mandatory minimums whether crime was going up or down. That's not relevant. They either work or they don't. It doesn't matter whether crime is going up. If it's going up or down, we should be doing something.

To go back to the earlier question that was put to me, it does seem to me that when we have 600-and-something murders a year in Canada, that's too many. I don't care if it's already going down; I'd argue it's too many. So we can have fewer maybe in 2006 than we did in 2005, but that doesn't make me feel any better. We should be looking for effective ways of dealing with crime whichever direction it's going.

Mr. Lee was dependent on, in a sense, saying crime is out of control and we've got to do something. We've got to do something, but let's do it effectively.

[Royland Moriah]

I'll focus perhaps a little bit on the issue of the different strategies we can use. I'd like to make it clear right away that given the impact that gun and gang violence has had on the African Canadian community, we certainly are in favour of strong laws that do protect us from people who are using guns. We are a community that has been primarily impacted by gun violence, and I think I would do a disservice to my community if I said to you that it's not important to us. However, I think what we need to do is think critically about what we're trying to accomplish here. What we are trying to accomplish is safety for communities.

You did mention the importance of safety for victims as well. What we're trying to do is accomplish that through mandatory minimums, which is a system that we know does not work. So it's very hard for us to give suggestions on something that we know doesn't work. I think that's fundamentally the problem right now. You're asking us to give you some sort of idea of how we can improve a piece of legislation that fundamentally is flawed. As I said, we need to step back from that, and we need to look at the criminal justice system as a whole, as an important part of this process, because it is important, and recognize that we also have systems in place within the criminal justice system that are working. Part of that, as Mr. Kulik said, is the idea that judges are there to judge and can make decisions, in particularly heinous crimes, that somebody needs to be locked up.

It's not that I'm against that; it's just that we have to look at the processes we're using to make sure they are going to be effective, to make sure that our communities are safe. And we believe that Bill C-10 doesn't do that.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to all the witnesses for appearing. I've listened with interest to all of your testimony.

I want to read something from Statistics Canada this past year that says that the national homicide rate rose for the second straight year in 2005, reaching its highest point in nearly a decade. Firearms-related killings increased for the third year in a row. There were 658 homicides last year, 34 more than in 2004. Of these, 222 were committed with a firearm, up from 173. They report that 107 homicides were believed to be gang-related in 2005, 35 more than in 2004. Two-thirds of gang-related homicides involved a firearm, most often a handgun.

What all that tells me is that it's beyond dispute, in my opinion, that what we're doing currently is working. That's what it tells me. I'm not satisfied with those statistics, and I think we can do a lot better.

Mr. Moriah, I listened with interest to what you had to say, and some other witnesses have made the same point. A piece of legislation can't be the be-all and end-all. We have to work from all angles to tackle the problem. I agree with you.

I think Mr. Doob or someone mentioned jobs, opportunities. No one is against those things. We're all in favour of jobs, opportunities, and resources. Some of the things we've done have been to put more law enforcement officers on the streets and at the border, dedicate resources to help prevent crime, and focus specifically on preventing at-risk youth from getting involved in street gangs and drugs.

We can do all those things, but I haven't heard from any of the witnesses that there's any place at all for the Criminal Code. I didn't hear any suggestions of how we can make this bill better. You say you're against the bill, but we do in fact have a Criminal Code that deals with a situation when, despite all our best efforts, someone has taken a gun and shot someone.

We can talk about root causes all we like and we can go back as far as we like, but at that moment that someone has taken a gun and shot someone, I don't think we should make excuses for that person. At that point, there's a role for the criminal justice system, I believe. Some of you may disagree, but I'd like to hear what you propose. What role do you see for criminal justice?

I'll give you all an opportunity to speak to that.

I do have to mention something. Concerning Dr. Levitt, we've heard testimony that mandatory minimums do deter, and we've heard testimony that they don't. Dr. Levitt, of course, is not here to defend himself. He was one of Time Magazine's 100 people who shape our world, for 2006. He is a senior fellow for the American Bar Foundation. Without him here to defend his own work, I don't quite take what my colleague Mr. Bagnell said, that all evidence that this would work has been debunked. I think you've made arguments on one side. There's other work on the other side. I would like some comment on that.

Mr. Kulik, you said your organization supported Bill C-68, and you oppose this Bill C-10. Bill C-68 was, overall, misguided. I think history now, after ten years, has looked at it as a total failure. The problem with Bill C-68 is that it went after law-abiding citizens and said you have to line up and register your duck gun, and it ignored gangs that use handguns on the streets. Those people did not register their gun. The evidence that I just cited from Statistics Canada says people continue to get handguns.

We talk about resources and what this bill will cost. Bill C-68 has cost over $1 billion. Imagine what we could have done with $1 billion wasted registering people's legal firearms. I have to say, on the cost associated with Bill C-10, firearm cases are, I think we'd all agree, very serious incidents, but they represent less than 1% of the national caseload. So what we're talking about overall, globally, in cost, we have to put in perspective.

I've touched on a number of bits of your testimony, I think all of you, except Mr. King.

I do want to mention one thing. This is not an American three-strikes rule. I appreciate hearing the American perspective, but this bill is focused on specific crimes. Gangs committing crimes with handguns--that's where the problem is. It's not a broad three-strikes rule. We don't have broad application of mandatory minimum sentences. It's very focused. And we've seen evidence that says when you have very focused use of mandatory minimums, it works, because it takes those who continue to commit crimes off the street.

So I'd appreciate all your comments on your testimony.

[Irving Kulik, Executive Director, Canadian Criminal Justice Association]

Thank you, Mr. Chairman.

Thank you for inviting us here to give testimony regarding Bill C-10.

I believe you all have received the French and English versions of our presentation.

This afternoon, I would like to give you a brief summary of what has already been presented. I hope you don't mind.

I am the Executive Director of the Canadian Criminal Justice Association. Before assuming this position, I worked for the Correctional Service of Canada for 35 years. For most of those years, I held senior positions.

The Canadian Criminal Justice Association is one of the longest-serving, non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada. The CCJA began its work in 1919, and it has testified before this committee on numerous occasions.

Our association consists of over 700 members. It publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the Canadian Congress on Criminal Justice every two years.

We are not an advocacy group for offenders. Our mission is to promote a humane, equitable, and effective criminal justice system. We support research-based and reasoned policies that lead to such an effective criminal justice system for Canada.

Mr. Chairman, our association welcomes the initiative of this government in putting forward a proposal designed to deal with the problem of gun crime. Our concern with needless deaths of Canadians as a result of gun crimes goes back decades. Indeed, our organization provided testimony to the subcommittee on firearms control, on then Bill C-17, in August 1991. In that brief, we hoped that our recommendations would lead to a reduction in criminal activity involving firearms, a reduction of unnecessary deaths, and better control of firearms.

In May 1995, we provided evidence to the justice and legal affairs committee concerning Bill C-68, an act respecting firearms and other weapons. We supported the passage of that bill, with the exception of mandatory prison terms. I quote:

Our association has a long history of opposing mandatory sentences. Of course, the sanctions fail to take into consideration individual characteristics of the offence as well as that of the offender. They tend to shift discretion away from judicial officers toward the police and prosecutors. They increase populations in overcrowded penitentiaries. They are often the subject of plea negotiations. They undermine the totality rule in sentencing and they often increase both the costs and time of litigation in our courts.

Finally, the evidence isn't clear that mandatory prison sentences deter those planning to use a weapon in the commission of a crime.

It would appear that certain problems and deemed solutions are intractable.

Today I'm here to tell you that, with respect, our association has some grave reservations concerning Bill C-10. I will outline them briefly and look forward to your questions and comments.

First we need to ask ourselves what we are trying to accomplish with new legislation. Obviously, the government is attempting to implement new measures in order to ensure greater safety for Canadians. Every Canadian should agree with this intent. As a citizen, as a father, and as a husband, I want to be sure that my family and my neighbours are as safe as can be. How safe? Based upon what we read in the newspapers, probably safer. I want to be sure that they can go about freely wherever they need to be—be it in school, shopping, or at work--without fearing assault or injury.

So how does Bill C-10 intend to do this? By increasing the criminal sanctions for offences involving firearms. We already have mandatory minimum sentences for about 40 criminal offences, including a number for gun crimes, that were instituted in 1995. How well are they working? Are they not harsh enough and thus potentially leading to the commission of more crimes?

I can tell you that in 12 years of direct daily contact with inmates, I never met one who indicated that he would not have committed a crime had the potential sentence been longer. Few ever remarked that they used complex decision-making models, dependent upon the length of sanction, before committing a crime.

Evidence presented here today by us and others, and that we cited in our paper, demonstrates that there is no relationship between the length of a sentence, in particular a mandatory sentence, and deterrence of crime. If anything, it is a certainty of apprehension and rapid sanction that may deter a criminal act.

What then is left but greater harshness of punishment? If that is the case and the intent of the legislation, we need to turn to an enormous meta analysis that reviewed 111 studies, involving 442,000 offenders, which was carried out by Paul Gendreau and his correctional research colleagues in 2002, on behalf of the Solicitor General of Canada. This study seemed to indicate that, if anything, harsher punishment may have led to a 3% increase in recidivism. Again, as has been cited, many of the jurisdictions that evoke the harshest punishment, including the death penalty, have the highest rates of violent crime.

Bill C-10 will further blur the lines between police, prosecutors, and judiciary. By further moving judicial discretion and sentence determination, discretion will be enhanced for police in charging and for crown counsel in prosecuting offences. The impact will be more plea bargains for those who are less guilty but fearful of mandatory minimum sentences--as has been stated a moment ago by my colleague--and as well, curiously, lengthy trials for those who might normally admit their guilt were it not for a lengthier mandatory sentence.

We need to reiterate the impact this will have on the correctional side of criminal justice as well. Obviously, the number of inmates will increase. At the provincial and federal levels, it will lead to even greater burdens on overcrowded facilities, more double-bunking, and increased risk to staff and defenders.

Programs that have a positive impact in safely reintegrating offenders will become even harder to obtain in a timely fashion, because mandatory sentences have a negatively differential impact on the disadvantaged. We can expect a further increase in the number of offenders who would best be served by the mental health system rather than the correctional one. The proportion of aboriginal offenders will grow further, even though they're already overrepresented by a factor of six or seven in penitentiaries relative to the Canadian population at large. The number of incarcerated aboriginal women in particular will continue to expand beyond all reason.

Finally, Mr. Chairman, we need to consider the cost of more inmates serving longer sentences. Certainly one could say that no cost to ensure public safety is too great. However, if the measures adopted do not work or, worse, have the opposite effect, then the expenses incurred are wasted money and wasted resources that can better be used for Canadians' health care, educational opportunities, and other social needs, which will also in fact assist those communities that suffer daily from the effects of crime. It's by investing in these causes that we can indeed have a positive impact in reducing crime and assuring public safety.

Thank you, Mr. Chairman. Although I made most of my presentation in English, I will be very pleased to answer any questions in French.

[Royland Moriah, Policy Research Lawyer, African Canadian Legal Clinic]

Thank you, Mr. Chair.

Thank you very much for the opportunity to appear before the committee today. My name is Royland Moriah. I'm the policy research lawyer at the African Canadian Legal Clinic. With me today is Charlene Theodore.

I'd like to apologize at the outset for not having our written submissions. I know there obviously was an issue with Mr. Doob's submission, at least with respect to his slide not being available or translated. Unfortunately, ours isn't translated yet, but I have spoken to the clerk and she has assured me that it will be done and will be available to the members of the committee as soon as possible. I would urge you to contact me if you do have any specific questions with respect to those submissions after you have received them.

I'll give you a little bit of information about the African Canadian Legal Clinic, which I'll refer to as the ACLC throughout the course of my submission. We're a specialty legal clinic funded by the Ontario legal aid system. We conduct legal work aimed at addressing systemic racism and racial discrimination in the province of Ontario. We engage in our work using a test case litigation strategy. To that end, we've represented litigants at tribunals and all levels of courts, up to and including the Supreme Court of Canada. We also monitor legislation—that is why I'm here today—and engage in advocacy and legal education in eliminating racism, and anti-black racism in particular.

Criminal law issues and issues of racism and discrimination in the justice system, of course, are central to our mandate. As noted in our brief, which you will hopefully have an opportunity to read, we've been involved in a number of interventions at all levels of court. For example, we were involved at the Supreme Court of Canada, in Regina v. Spence and Regina v. Williams, which dealt with addressing issues of race in jury challenges for cause; and Regina v. Golden, wherein the Supreme Court outlined strip search procedures for police. At the Court of Appeal, we were involved in some of the seminal racial profiling cases, including Regina v. Brown and Regina v. Richards. More recently, we've been involved in a lot of policy work, particularly with respect to Justice Patrick Lesage's review of the Ontario police complaints system. And this past summer we had part II standing in the Ipperwash inquiry, wherein we provided the inquiry with a report on police use of force.

We're very pleased to have an opportunity to present submissions on Bill C-10, as criminal justice issues are obviously very important to the community we serve. As already noted, numerous reports from jurisdictions across Canada and from all levels of court have raised concerns about the impact of race on the Canadian criminal justice system.

It probably comes as no surprise to many of the people on the committee, because the information is out there, that African Canadians are particularly overrepresented in the criminal justice system. For example, in the recent 2001 census, African Canadians represented approximately 4.5% of the population. However, the federal offender management system, as of this past April, indicated that African Canadians right now comprise 16.1% of federally incarcerated individuals.

Many reports have noted that the overrepresentation of the African Canadian community is due to systematic over-policing. Research by criminologists such as Scot Wortley, from the University of Toronto, have confirmed that African Canadians are targeted by police, and African Canadian males, particularly young males, generally are at greater risk of being stopped and harassed, and thus more likely to be charged with an offence.

The issues that are raised by Bill C-10 are of particular importance to our community, especially the community in Toronto. As most of you have probably seen from the media reports that have been out there over the past year and a half, there has been a rash of gun violence in Toronto over the past year and a half, and it has particularly impacted our community. Given this reality, we submit that there's a clear need to develop effective strategies for addressing this problem.

As noted in our brief, since the outbreak of gun violence, our community has in fact called for strategies that address the root causes of gun crime, with a focus on preventing gun crime from happening rather than punishing its effects. I would submit that most Canadians would agree with us that it's not good enough for us to react to the issue of gun crime and put people in jail after people are maimed and killed, but to prevent it where possible, to prevent the loss of life.

Part of the approach that we had recommended, recognizing that this is a complex issue that will require a multi-faceted approach, was the need to increase funding for services in at-risk communities. It was the need to re-establish many of the social programs that had been cut by the successive governments over the past decade or so. These are governments at all levels, too--both the provincial level and the federal level through transfer payments.

However, our concern with respect to Bill C-10's approach to dealing with gun violence is that at best it is simplistic and at worst it is a reckless response to gun violence. Instead of considering the causes of gun crime and implementing effective strategies, we are essentially relying on rhetoric and ideology, giving the appearance of action while doing little to truly address the problem. It is the ACLC's submission that the proposed Criminal Code amendments won't be effective because they fail to address the complexity of the problem of illegal guns. Unless we commit to recognizing and addressing these underlying causes, we cannot have effective strategies for addressing the problem.

While there are numerous problems that arise out of the proposed mandatory minimums—Professor Doob has raised some of them, and I'm sure you've heard quite a few over the course of the hearings into Bill C-10—my submissions for the ACLC will focus on three main issues: the impact of mandatory minima on the fundamental principle of proportionality—to which Professor Doob has alluded somewhat; the recognized ineffectiveness of mandatory minima—as Professor Doob and I'm sure many others have raised again and again before this committee; and particularly important to the people we serve, the impact of mandatory minima on African Canadians and African Canadian communities, and I would also say communities at large across Canada.

With respect to the principle of proportionality, as Professor Doob noted, sentences under section 718.1 of the Criminal Code should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minima distort this principle by removing judges' ability to consider other relevant factors, including aggravating and mitigating circumstances. As noted in an article by Julian Roberts:

A mandatory sentence prevents judges from modulating the severity of the sentence to reflect the seriousness of the offence and the degree of blameworthiness of the offender.

An example given by Ms. Sue Barnes in her speech to the House, which is actually referenced in our written submissions--and again, I'm sorry that you don't have those available to you--highlights the importance of judicial discretion in the sentencing process. What she talked about was a situation where somebody without a criminal record who's carrying an unloaded gun would actually, under the proposed amendments, get a higher sentence than somebody with a criminal record with a loaded long gun. I think right there that raises some issues with respect to the issue of proportionality.

This is only a very limited example; there are many examples. This is something we really have to consider, how this will impact the criminal justice system and the way our sentencing procedures work under the system.

That's why it's important to consider the role that judges do have. They are uniquely situated to assess all the circumstances of an offence to fashion a suitable sentence that takes into account all the relevant factors, including the need for deterrence, rehabilitation, and protection of society where it's demonstrably necessary. Mandatory minimum sentences usurp this critical role of judges, and they will result in disproportionate sentences. The evidence is clear. They will not adequately consider all the circumstances that are necessary for the proper functioning of proportionate sentencing under the criminal justice system.

In terms of effectiveness, I know I'm probably beating a dead horse, because this is something that has been talked about again and again by probably many of the people who have appeared before this committee and the many people who have a lot of expertise, more expertise than I do in this area. There's just no doubt that mandatory minima do not work. This debate isn't new in Canada. It has been going on for quite some time. The last sentencing commission looked at sentencing commissions and law commissions over the course, I believe, of 40 or 50 years and noted that none of them endorsed mandatory minimum sentences as an appropriate response in the criminal justice system. They were quite clear that they simply do not serve their stated purpose of deterrence or incapacitation.

Recent research done by academics or even commissioned by government departments also concludes that mandatory minimums are not effective. Reports from other jurisdictions--primarily a lot of research in the States and also research in Australia, because they followed some of the mandatory minimum sentences provisions in their country--also confirmed that mandatory minimum provisions do not lower crime rates, do not serve as a deterrent, do not have an incapacitation effect, do not work. In fact, jurisdictions in the States are now moving away from mandatory minimums as lawmakers are starting to understand that they have gone down the wrong path, that these are not effective, and they have a very detrimental impact on the functioning of their criminal justice system.

Even the legislative summary for Bill C-10 noted the questionable effectiveness of such provisions. Yet, under the guise of being tough on crime, the government has introduced amendments that, given the available research, you should be well aware, will do little to address the problem of gun violence.

[Dr. Anthony Doob]

Thank you very much.

To understand whether increased penalties affect crime, I would suggest that you have to look at the overall weight of evidence. The conclusion that Professor Webster and I came to, based on a thorough survey of the evidence, especially that which was carried out in the last fifteen years, was that variation in the severity of sentences does not affect crime rates.

The reviews that come to different conclusions have generally looked selectively only at the occasional paper that finds some evidence that harsh sentences deter. In other words, for more than 25 years, the overwhelming weight of evidence has been consistent with the conclusions that harsh sentences, in legislation or in practice, will not have any consistent or appreciable impact on levels of crime in the community.

I would now like to turn to two sets of data that have received a lot of prominence here in Ottawa. Each of these has been used to demonstrate that harsh sentences deter. The first example comes from an analysis of a paper that has been referred to in the context of the current bill. It seems that when the deterrent impact of harsh sentences is raised, the name Steven Levitt, one of the authors of the best-selling book, Freakonomics, is mentioned, and his paper with Daniel Kessler, published in 1999, is cited.

On the basis of their evidence of the effects of the June 1982 California initiative, Proposition 8, these two economists concluded that the increase in sentence severity that came into effect in June 1982 was responsible for the reduction in crime in California. As a result of this 1982 change in sentencing laws in California, sentences for certain crimes committed by repeat offenders were made considerably longer. From a deterrence perspective, the change in sentencing laws was seen as a good opportunity to test the deterrence theory, since the change in the sentencing was dramatic, sudden, and well publicized. The typical finding is what's shown here, and it is also shown in the translated document.

These are data from Kessler and Levitt's original paper, and what you see is the timing of the law changes marked by the vertical line. From this graph one could easily conclude that crime was going up until the time the sentencing law in California became dramatically harsher. Crime then dropped dramatically, immediately after the law, one could conclude, and these would obviously be quite impressive results.

The findings are similar for four other crimes that were covered by the change in law. Crime went up before the change in the law, Kessler and Levitt's data would show, and then dropped dramatically afterwards. It's no wonder that the supporters of the current bill have repeatedly cited this single study by a quite famous economist, but I'd like you to look again at these data.

Look at this curve carefully and what you'll see is something that's quite peculiar. Levitt, in the published paper, presented data only for the odd-numbered years. That's what's in the figure; that's what was in his paper.

Let's look at the full set of data that were never publicized and never presented in this very highly cited paper on deterrence. This slide simply adds the even-numbered years. The data for the odd-numbered years is identical to what you saw before. Again, the vertical line is when the law change occurred. Unlike the partial set of data, which Kessler and Levitt relied on, what you see is that crime was going down, and started going down before the law changed. The other offences examined by Kessler and Levitt, which were subject to these especially new harsh sentences, show the same kind of pattern.

On the left of these panels, I've presented the data as published by Kessler and Levitt. On the right panel, all I've done--all, in fact, Cheryl Webster, from the University of Ottawa, and Frank Zimring, from California, and I did--was to add the data for the even-numbered years. By choosing, as Kessler and Levitt did, to present the data only for the odd-numbered years, they gave you a picture of the trends that is completely different from the picture you see when all of the crime rates for all of the years are included.

If you wish, you can look at the monthly data to get a more exact estimate of when the crime drop occurred. We did this as well. Here's one example of it. Again, we marked the time when the law changed by the vertical line, and what you see is that the crime drop started before the law changed, not after, as you would expect if it were the law that was responsible for the change in crime rates.

These graphs are part of a paper that I co-authored with Professor Webster, and Professor Franklin Zimring, from the law school at the University of California, Berkeley. Professor Zimring is one of the world's experts on deterrence, having written extensively on deterrence, beginning with his classic book on the topic in 1972.

As you can imagine, Professor Levitt is not very pleased with our analysis. The best one can conclude I think from Levitt's very interesting, very selective use of data is that it would be risky to base any policy on a study such as this.

About a year ago, in the last session of Parliament, when you were examining Bill C-215, you had a witness before you who indicated that sentence enhancements had helped to drive down the rate of violent crime in Florida. His evidence, like that of your local witness last week, concluded that Florida's 10-20-life law may have sounded convincing. The implication of their statements is clear: tough sentencing regimes drive down crime.

I'm old-fashioned. I think you should look carefully at the data. From the data I presented to you at the outset, you should already be skeptical about such assertions. Crime was already on the downward trend in the United States. Violent crime peaked in the United States and Canada in the early 1990s and then drifted downward.

So let's look at this trend in California. The next two figures show total index crime, which is a measure of the total more serious kinds of crime, and index violent crime for Florida in the 1990s. The timing of the implementation of the so-called 10-20-life law in Florida is marked again by the vertical line.

If you look at this figure, or the next one, which deals with violent crime, the problem with the inference that the law created a change is immediately evident. Crime was going down anyway. If these two figures didn't have a vertical line in them showing where the law change took place, you wouldn't have any idea that anything special was happening. Crime was going down in Florida, just the way it was going down in other parts of the United States and in Canada. There is no evidence that the change in law changed anything.

There are obviously many more studies on this topic. The best research examines more than one jurisdiction and attempts to control for other factors known to correlate with crime rates. Considerably more sophisticated studies have been carried out.

In the United States in the 1990s, largely as a result of the popularity of the so-called three strikes laws, many U.S. jurisdictions brought in very harsh sentencing regimes for at least some offences. Some studies have looked, overall, at the impact of these sentencing changes. One set of investigators, for example, examined the impact of the sentencing changes on seven different crimes in 21 states, using the data from states where no changes were made as a form of a control.

This slide shows you a summary of their findings. The authors report that there were as many increases in crime as there were decreases that followed the imposition of three-strikes sentencing laws. Clearly, it is just as inappropriate to focus on only those changes in the law where crime decreased as it would be to focus on those instances where crime increased after sentencing got tougher. But these findings do show you the dangers of taking isolated findings out of context.

There are two other sets of problems with mandatory minimum sentences that I would like to mention. It is almost inevitable that mandatory minimum sentences will result in disproportionate sentences for at least some offenders. We already have a requirement in the Criminal Code that sentences must be proportionate to the severity of the offence and the offender's responsibility for that offence. It is my impression that most Canadians endorse proportionality in sentencing.

Clearly, Parliament, in attempting to constrain judges with mandatory minimum sentences, is purposefully sending the message that it does not trust judges to judge the severity of offences. But in addition, mandatory minimum sentences almost certainly force judges to hand down sentences that violate section 718.1, the proportionality principle in sentencing.

If the proportionality principle needs strengthening in the Criminal Code--and I, for one, believe it does--then there are ways in which this can be done. But mandatory minimum sentences have been shown repeatedly not to be an appropriate tool to accomplish this goal. There are other harms that can come from proposals such as this one. If the Parliament of Canada were to approve Bill C-10, it would be telling Canadians that Parliament can make our communities safer by increasing mandatory minimum sentences. This is, quite simply, a false promise. If you were to vote in favour of this bill, therefore, you would be, in my opinion, making a promise to Canadians that is known to be false. But it is worse than that. Focusing on such matters as mandatory minimum sentences also distracts you, the Parliament of Canada, from considering approaches to crime prevention that might actually make our communities safer. In other words, by convincing yourselves and others that the proposals such as this one will improve our communities, you necessarily do not adequately consider approaches to crime prevention that would improve our communities.

Thank you very much.

[Dr. Anthony Doob, Professor, Centre for Criminology, University of Toronto, As an Individual]

Thank you very much.

I'm a professor at the Centre for Criminology at the University of Toronto. My research on various topics in criminology has been published in a number of peer review journals during the last 35 years. Recently, a colleague at the University of Ottawa, Professor Cheryl Webster, and I wrote a detailed review of the research literature on deterrent impact of sentencing for Crime and Justice: A Review of the Research, which is one of the major publication series in this field. A summary of my CV has been given to the clerk.

I'd like to make three rather straightforward points. First, contrary to what various people have said in the House of Commons and elsewhere, the research evidence does not support the conclusion that sentencing enhancements such as those contained in Bill C-10 will reduce crime. The best research on this is quite consistent. Mandatory minimum sentences will not reduce crime.

Second, you should be very cautious about accepting some of the evidence that is sometimes cited as demonstrating that mandatory minimum sentences can reduce crime. Much of the evidence contains obvious artifacts that can be easily demonstrated.

Third, you do the Canadian people a serious disservice when you imply or state that serious crime can be controlled, even in part, by imposing increasingly harsh mandatory minimum sentences. This disservice is easy to describe by focusing on approaches we know are not going to work; you fail to consider approaches to crime that would make our community safer.

At least one previous witness urged you to consider comparisons with the United States. He concluded these comparisons demonstrated harsh sentences would reduce crime in Canada. Simply put, I found his analysis to be astonishingly inadequate. Though I don't think these are the best data available for either side of this debate, I would like to spend a couple of minutes giving you a more adequate description of some of the differences across these two countries.

This is a graph of total crime and violent crime, as recorded by the Canadian police over the last forty years. I've multiplied the violent rate by ten to be able to see the shape of the curve. It is the shape rather than the absolute value that's important. Reported crime obviously went up rather steadily until the early to mid-1990s, and then it started to drift slowly downwards.

Crime is reported differently in the United States, hence you cannot legitimately compare the absolute values from these two graphs. This is the United States. What you see is a remarkably similar trend to what you saw in Canada; increases up to the early 1990s and then decreases since then.

Turning to homicide, because homicide figures can be made comparable, I've plotted the actual homicide rates of the two countries on this slide. American homicide rates are typically about three times those of Canada, but if you look carefully, you can see the overall trends in Canada and the United States are similar. Homicide rates peaked in the mid-1970s and then drifted downwards, heading up a little bit in the late 1980s and then downwards in the 1990s.

To be able to compare these trends visually, I've put the two countries' homicide rates on the same scale by setting the 1961 rate for each country to one and then plotting the change from that rate. What you see, again, is similarity. Increases from the 1960s to the mid-1970s, then a gradual and uneven decline, most notably in the 1990s.

What does this have to do with punishment?

This is the picture of Canadian imprisonment levels for the past 45 years. For various reasons, largely because we found ways of punishing those offenders who committed less serious offences in the community rather than by sending them to prison, we have had a rather steady level of imprisonment over the last 45 years.

In contrast, this is what the American imprisonment rates look like. U.S. imprisonment rates were rather constant for 50 years, ending in the mid 1970s, and then increased dramatically. U.S. imprisonment rates went from being slightly higher than ours in the early 1970s to about seven times that of Canada now. In the last few years we have jail data, which for various reasons weren't available until then, but what you see is an imprisonment rate that is about seven times Canada's rate.

Most criminologists would agree that the levels of imprisonment do not predict the crime rate. In this case, we have two countries, the United States and Canada, with patterns of crime that are fairly similar. Yet the two countries have dramatically different patterns of imprisonment. Therefore, when you're told that high levels of imprisonment will make Canadians safe, you should ask yourself why the shape of our trends are so similar to those of a country that has had very different levels of imprisonment.

I do not consider these to be the best evidence on the subject. I raise it only because apparently you've been urged to follow the American model of attempting to deal with crime by increasing imprisonment levels.

The conclusion from the actual data, if you want to think this way, would be that we have accomplished similar crime trends without having to spend billions of dollars imprisoning people.

To understand whether increased penalties affect crime, I would suggest that you look at the overall weight of the evidence. The conclusion that Professor Webster and I came to—

[The Chair, Conservative, Art Hanger]

I call to order the Standing Committee on Justice and Human Rights.

We continue our debate on Bill C-10, an act to amend the Criminal Code, on minimum penalties for offences involving firearms.

Before I call upon the witnesses to present, I'm going to deal with two matters of business that are before the committee, two motions.

Committee members, I apologize. The two motions that are before you are actually notices of motion. They will be brought forward on Monday of next week.

We will go on to the business at hand. We have four presenters here today, as you will note on your agenda. They are Anthony Doob, who is a professor at the Centre for Criminology at the University of Toronto; from the African Canadian Legal Clinic, Royland Moriah and Charlene Theodore; from the Canadian Criminal Justice Association, Irving Kulik; and from The Sentencing Project, Ryan King, who is a policy analyst.

Are you from the U.S.?

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown and Mr. Weinstein.

That brings us to a conclusion. I would like to thank all of the witnesses for coming forward with your presentations. This certainly has generated a good discussion, and we have something else to think about in our evaluation of Bill C-10.

Thank you for coming.

[Proceedings continue in camera]