Justice Committee on Oct. 2nd, 2006

[The Chair, Conservative, Art Hanger]

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

In accordance with the orders of the day, we're still in debate on Bill C-9, an act to amend the Criminal Code, conditional sentence of imprisonment.

We have a number of witnesses before the committee. From the Church Council on Justice and Corrections, we have Ms. Berzins and Ms. Griffiths. We have one individual, Professor David Paciocco from the University of Ottawa. From the Mennonite Central Committee, we have Mr. James Loewen. As well, Rosalind Prober is here from Beyond Borders; I would call them a special interest group in the sense that they are representing the victims and would like to see changes in legislation in various areas.

Thank you to all for being here today.

I'm going to follow the order in which the witnesses are listed on the agenda, which means we will start with the Church Council on Justice and Corrections.

If you could keep your comments to approximately ten minutes, that would get us through all of the presentations and allow a lengthy examination by the committee members.

Begin, if you would.

[Jane Griffiths, President, Board of Directors, Church Council on Justice and Corrections]

Thank you, Mr. Chair. Good afternoon.

I'm speaking here today as one representative of the Church Council on Justice and Corrections, which is a national coalition of eleven Christian denominations with multi-faith and other community partners. It is well known as an NGO in the criminal justice field, nationally and internationally, for its work since 1974 to bring public attention to more socially responsible approaches to crime and justice. Recent council activities have included educational conferences, supporting local community restorative justice projects, analyzing public policy, and partnering with the arts community in public education about justice.

CCJC was created by eleven founding churches: the Presbyterian Church in Canada, the Religious Society of Friends--the Quakers, the Roman Catholic Church, the Salvation Army, the United Church of Canada, of which I am a minister, the Anglican Church of Canada, Canadian Baptist Ministries--we have a representative from them today as well--Christian Reformed Churches, Disciples of Christ, Evangelical Lutheran, and the Mennonite Central Committee.

We realize that our own faith tradition has had some negative influence in fostering a culture of justice and legal institutions that have been steeped in retribution in ways that have worked to further marginalize often some of the most vulnerable citizens of our Canadian communities. We take responsibility for helping to undo the harm this has done.

Our primary mandate is to assist our own faith constituencies to reflect upon this and to become aware of the people in their midst who are suffering from the causes and effects of crime and the fear of crime. Our educational resources encourage citizens to reach out to each other with responses and services that can help us all come to grips with the evil of crime when it happens, to survive and to heal, to discover that life can still be good and worth living, and that we can learn better ways to live together in safety and peace.

The focus of CCJC are the human realities that people in our communities are struggling with related to crime, its causes and effects, and the repercussions of how our legal system, the justice system, and society generally deal with crime. We do not expect our legal system alone to be able to do this for us. The job of justice is also a community responsibility, reaching far beyond what any law or justice system of the state can accomplish.

Long years of experience have taught us that how the state carries out its responsibilities, the laws it enacts, the financial resources it allocates, and the public statements it makes can either assist community effort or undo community initiatives by giving the problems of crime a twist for the worst. It will either assist efforts based on sound evidence to transform attitudes and criminal justice practices or perpetuate prejudices and understandings of the true realities of crime. This is what we wish to discuss with you today.

We believe that the changes in law that these two bills are proposing will make what is already a bad situation even worse. There are other, better ways to remedy the concerns that these bills seek to address. We would all be safer if the resources that would be needed to support the implementation of these unhelpful changes were put toward some of the effective new approaches that have emerged in recent years.

Our book, Satisfying Justice, has documented over 100 of these initiatives. One example is the collaborative justice program, which is here in Ottawa in the courthouse. We have representatives here today, Tiffani Murray and Kim Mann.

The proposed legislation will severely restrict the ability of judges to make use of these programs. We want to take our time with you to explain why we have come to the conclusion that the proposals in Bill C-9 and Bill C-10 would not contribute to better justice for our communities and would make things worse.

The distress of Canadians, the trauma and anguish and fear of crime, is a very compelling force. We are all united in our desire to make changes that will make Canada a safer place to live, and the key challenge is to know what will bring the desired results. It may seem that all that is required would be a simple shifting of words here and there--more time for more crime. We believe, however, that what is being proposed is bound to lead to many unintended consequences, consequences that have been unforeseen because the changes proposed are not strategic in any informed way. Our purpose here today is to bridge the two realities: the words, and the human realities that will be impacted by these words.

We urge you to vote not on the words in a battle of rhetoric taken in a vacuum, but with a meaningful reference to their impact on people's real lives.

[Lorraine Berzins, Community Chair of Justice, Church Council on Justice and Corrections]

My name is Lorraine Berzins and I've been on staff with the Church Council for 22 years. Before that I worked for 14 years in federal corrections. When I worked in federal corrections I was the victim of a hostage taking. I say that because I really want to impress upon you that the issues coming before you today, while they may seem a mere matter of words, matter a great deal to the people whose lives are going to be affected. They are going to affect people in several communities whom I know very well. So I bring a real, personal commitment to trying to let you know what we know because we are there with people in the community.

I want to make three particular points about the two bills. We will be discussing Bill C-9 and Bill C-10 together because both bills propose changes that are going to affect judicial discretion, and that's the most important issue for us. They're going to result in greater limits on a judge's ability to impose sentences that fit the specific circumstances of a crime and the offender regardless of actual risk assessment in a particular case and regardless of the real interest of the victim and the community as a result of a particular criminal incident. These changes would tie a judge's hands. They would enforce some new mandatory minimums and they would remove the possibility of a conditional sentence that exists for many offences, even though conditional sentencing is already specifically designed to allow only offenders who do not pose a danger to serve a prison sentence in the community. Any such decision that is deemed inappropriate can be appealed. We believe judicial discretion in sentencing is too important to let this happen. I'm going to come back to this at the end of my remarks.

The second point is about the research evidence about harsher sentences. The design of the changes proposed by both bills shows they are based on the belief that harsher sentences will keep us safer from crime. We acknowledge the real need to protect ourselves from certain offenders who pose immediate risk to the community. But harsher sentences do not translate into increased public safety. Research has clearly shown for years that imprisonment as mere punishment, regardless of actual risk, just to send a message to other potential lawbreakers, is clearly ineffective as a deterrent. The level of recidivism for specific offenders is actually higher if they go to prison. Nor do harsher sentences meet the needs of victims for healing and safety in any individually meaningful way.The changes proposed, upping the tariff of the punishment regardless of individual circumstances and needs, is going to make that courtroom experience for victims even worse by making the legal system even more adversarial than it already is in ways that can deal very hurtfully and disrespectfully at a very highly vulnerable time for a victim. That's the way it works. That's not likely to change.

We agree with the conclusions of credible scholars like Doob and Webster who state that despite a minor study or two that may appear to show signs of some small area of controversial findings in this field, the support for the proposition that harsher sentences work is very weak. Canada's public policy should be based on reflective experience and sound research and not on any single study that is contradicted by a host of other better studies. To do otherwise is irresponsible, and this is especially the case when we can also anticipate the new laws are going to result in higher correctional costs and in more prison time for our most vulnerable groups, like first nations people, other visible minorities, people with psychiatric disorders, and members of the poorest sectors of society. Women, particularly, are going to be affected by a lot of these changes.

Finally, we are particularly distressed about the inconsistencies in the proposed legislation. One example of the inconsistencies in mandatory minimum sentencing provisions proposed, Bill C-10, is what could happen as a result of what's proposed. For example, an individual can rob a corner store, while armed with a fully loaded long gun, such as a shotgun. Let's say he or she has a lengthy criminal record, including numerous prior convictions for other firearms-related offences. He or she faces a mandatory minimum sentence of four years, as proposed. Another individual commits a robbery under similar circumstances but is armed with an unloaded handgun. He or she is a first-time offender with no criminal record. He or she faces a mandatory minimum sentence of five years, as proposed. The same would apply in several other kinds of cases.

In other words, the length of the mandatory minimum in the proposed legislation is based on the legal status of the firearm in question rather than the extent of the actual danger to the public presented by the situation. An unloaded handgun is more serious than a loaded long gun, regardless of the actual circumstances of the crime and the offender or the actual harm done and victim considerations.

[The Chair, Conservative, Art Hanger]

I know you're prepared to discuss both Bill C-9 and Bill C-10, but I would like you to keep your comments to Bill C-9, because this is the bill that is before the committee right now. Bill C-10 is coming up at a later date.

If you could separate that information from your presentation, I'd appreciate it. Your time is running out, so I encourage you to put your conclusion forward.

[Lorraine Berzins]

The inconsistencies are of great concern to us. They're going to result in several kinds of offences that do not seem so serious being lumped in for the same serious treatment as those that call for a maximum sentence of ten years or more. We think it is not the right way to proceed on the basis of maximum time. It might sound good on paper, but it's going to result in several offences, like break and enter in a residence, fraud or false pretenses over $5,000, and many cases of welfare fraud being treated more seriously than other things that Canadians would consider very serious.

So the real-life implications of the proposed changes, in practice, are bound to defy the notion of justice held by most reasoning Canadians, if they realize that these are the kinds of results that these proposals will and will not give us. Most Canadians don't know that, but you do know that. You have this information in front of you, and we've elected you to make those decisions responsibly on our behalf.

We think that judicial discretion is extremely important. There's a process of human discernment and judgment that should not be removed from the actual knowledge of the case; no general law can give us the equivalent of that. To do it on the basis of the meaningless criteria proposed is to degrade us as a society. It debases the very noble human aspiration to justice, which is very important.

If there's concern that the existing provisions have been applied inappropriately, those decisions can be appealed. Policy directives and guidelines can be given, but the simplistic blanket solutions proposed are not appropriate.

In conclusion, we urge you to withdraw Bill C-9, and we'll talk about Bill C-10 another time. We know it may be difficult to find the political will to do that. It's so important, and there's one amendment that you might want to consider, and that's to make it presumptive rather than absolute. If you do not find the political will to withdraw the bill completely, at least leave a door open so that even though it's presumed that certain offences will likely not be eligible for a conditional sentence, there is room for a judge to make an exception to the contrary if the case is put before him.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Berzins.

Now I would like to turn to Mr. David Paciocco.

[Prof. David Paciocco, Professor, Ottawa University, As an Individual]

Thank you, Mr. Chair. It's a privilege to have the opportunity to address this committee.

I am in a bit of an awkward position because I have sympathy for the ultimate goal of the government in Bill C-9. There's no question that the imposition of conditional sentences for extremely serious crime has a dispiriting effect on public confidence in the administration of justice. On the other hand, I'm here to urge that Bill C-9 not be passed in its current form, and I say that for three reasons.

First, this bill is too blunt. It is going to prohibit not only inappropriate uses of the conditional sentence but also the application of conditional sentences in cases where it is not only appropriate but the preferred response for the criminal justice system. Secondly, it will add appreciably to the financial costs of the administration of justice, and it will do it without reducing the amount of crime that occurs in Canadian society. Thirdly, and I say this based on my experience both as a defence lawyer and as a prosecutor for more than seven years, part-time and full-time here in Ottawa, strategies will be adopted by judges and lawyers that will avoid the rigidity of Bill C-9, and I'll give you some illustrations later.

If this government chooses to act on its perception or conviction that conditional sentences are being applied inappropriately, I don't want to come empty-handed. I'm offering two alternative methods of attempting to deal with this difficulty. The first is to create an additional prerequisite for conditional sentencing that would make it appropriate solely in those cases where priorities should be given to rehabilitation or restorative justice. Secondly, I would encourage the government to provide a presumptive provision. It could identify offences that are most troubling, such as sexual assault or causing serious bodily harm, and in those circumstances it can be presumed that priority in sentencing should be given to denunciation and deterrence. I'll speak more about these at the end of my presentation.

In theory, conditional sentencing is treated as a jail sentence. Its virtue is that it does reduce reliance on imprisonment and it does, according to the theory, decrease the risk of reoffending by some offenders. I'm urging this committee to accept the validity of both of those propositions in appropriate cases. Imprisonment is far more expensive than the administration of a conditional sentence, and as Ms. Berzins has explained, locking offenders up together with those who are criminally disposed in a criminal subculture tends to make many offenders worse, not better. To the extent that we can assist in rehabilitating Canadian citizens, we know we can do it far more effectively when they're not incarcerated.

Having conditional sentences in appropriate cases makes both common sense and financial sense. It makes sense where appropriate principles are respected. I would put forward three principles where conditional sentencing is an appropriate response. The first is where leaving the offender in the community will not pose an appreciable risk to the community. The second is where the offence is not so serious that permitting the offender to remain in the community provides an unjust response to the offence. The third is where priorities should be given to rehabilitation or restorative justice.

The current law is appropriate with respect to ensuring that dangerous offenders are not released into the community. As the committee I'm certain is aware, judges are not empowered to give a conditional sentence if in their judgment the offender poses a risk to the community if allowed to serve the sentence in the community. It would be inappropriate, in my respectful submission, for the government to assume that judges cannot make that determination at the same time we're putting forward a bill to allow judges to use their discretion to declare offenders dangerous on the basis of evidence and to lock them up indefinitely. It's quite clear that mistakes can be made in the exercise of discretion, but the alternative to removing discretion entirely and having fixed sentences or removing sentencing options is to result in erring on the side of incarceration, which, in my respectful submission, is not an appropriate response.

If there is a problem with conditional sentencing, it relates to the second two principles I have identified. The reality, in my opinion, is that we tend to overestimate the denunciatory and deterrent effect of a conditional sentence. This is because of what I would consider to be a questionable assumption that is made in the case law dealing with conditional sentencing. That assumption is that a conditional sentence is more like a jail term or a period of incarceration than it is like a period of probation.

In my respectful submission, this inflates the impact of a conditional sentence. Individuals subject to conditional sentences certainly have the stress and impact of being under a court order, but that stress is certainly far less than actual incarceration, and the deterrent impact has to be, to the extent that deterrents may exist, less if an offender is permitted to serve the sentence in the community.

I think if there is a difficulty with the conditional sentencing, it's in the tendency to overestimate the deterrent or denunciatory impact of that particular provision, and that's why I'm putting forward the principles that I am.

There's a related concern, and that is that sentencing does so many different things. We sentence people to try to accomplish protection of the community by deterring offenders. We sentence people trying to achieve justice. We sentence people in order to try to restore them or reintegrate them into the community. Those objectives are often at opposition to one another in a particular case, so the priorities a judge gives in a particular sentence are going to have a huge impact on the way that judge chooses to impose conditional sentences.

What I'm going to ultimately suggest is that if there is a problem, it is in the tendency to overestimate the deterrent and denunciatory effect, and the proposals I put forward address those specific problems, rather than the blunt tool in Bill C-9. Bill C-9 is blunt because it would remove conditional sentencing as an option entirely for offences with a maximum sentence of ten years or more.

The fact of the matter is that our Criminal Code is not a coherent instrument. We've never had a scientific study of the seriousness of offences. It is historical accident as to whether a particular provision in the code carries a maximum sentence of ten years or more. It not only includes the offences that we as a society are most afraid of; it also includes things like theft of cattle, theft of a credit card, unauthorized use of a computer, possession of house-breaking instruments, uttering forged documents, uttering counterfeit money. None of those things are acts that flatter the offender, but I doubt that Canadians would identify them as being among the more serious or more feared offences in our community.

The second problem is more profound, and it is that the seriousness of offences depends far more on the circumstance of the offence than on the specific offence in question. Sexual assault, for example, can include everything from an unwanted kiss to the most reprehensible violation. A break and enter can be a young person committing a home invasion under very dangerous circumstances or it can be an estranged spouse violating a court order giving possession of the home to another party by going in to try to reclaim what they think are their goods.

It is inappropriate and wrong, in my respectful submission, to have a lumped-in category of offences and assume that should be the break-off for conditional sentencing.

Conditional sentencing is cheaper than incarceration, and it would not be, in my respectful submission, appropriate for the government to act on the assumption that if we remove conditional sentencing it will deter offenders and that will reduce the costs of incarceration.

I'm not going to get into the studies that have been referred to by the previous speakers, but I ask this committee to approach this as a matter of common sense. How realistic is it to think that people who choose to drink and drive or break into homes or commit sexual assaults do it because they know they have a chance at perhaps getting a conditional sentence if and when they're apprehended? All of those offences carry very heavy penalties. Do you really think that's going to be the difference in their decision as to whether to engage in criminal conduct?

Secondly, what we do know about deterrents is that if an individual doesn't know what the sentence is, they're not going to have any way to measure the cost-benefit analysis. This is a complicated piece of legislation. Are offenders really going to understand what the impact of this particular bill is, and will they take that into account before they engage in their conduct?

If this committee decides to recommend or the government decides to act on this legislation, it must be in the firm appreciation that it will increase the costs of the administration of justice, not decrease them.

Finally, history teaches us that when the law becomes rigid, lawyers find their way around it, and so, too, do judges. If this bill is passed you are going to see probationary sentences given in cases that now attract conditional sentences. In other words, inappropriately lenient sentences will be imposed in an effort to get around these restrictions. In addition, you will see tokenistic periods of incarceration followed by probation where a conditional sentence would have been used in the past. So in some respects it's going to backfire.

It's going to give prosecutors tremendous power, because, as you know, this bill applies only where the prosecution elects to proceed indictably, and they can therefore remove a sentencing option from a judge. Sentencing decisions should be made by judges, where they are reviewable, rather than in the unreviewable discretion of prosecutors.

The solution I'm putting forward focuses on the very problem that I think I have identified with conditional sentences. Some judges think they are far more deterrent or denunciatory than I think they are. Our Supreme Court of Canada authority reinforces this characteristic of conditional sentences consistently.

I would ask that the committee consider recommending, and the government consider acting, on different principles. Add an additional prerequisite if you feel the need to deal with conditional sentences. Make sure that those conditional sentences should be ordered solely where the sentencing priority is rehabilitation or restorative justice. If you do that, you will save this vehicle for cases where it is needed, and where you do have a real need for deterrence or denunciatory sentencing, it won't be an appropriate sentence.

Add to that a presumption that in cases where there is sexual violation or serious bodily harm--or even, if you feel the need, significant property damage or interference with property rights--the appropriate sentencing priorities are denunciation and deterrence. If you do it in the form of a presumption, that puts the onus on the accused to show some special circumstances as to why a conditional sentence is appropriate in that case, whereas it may not be appropriate in typical applications of those same principles.

It will also provide an error of principle if a judge who believes in or articulates or recognizes an important need for deterrence and denunciation chooses to try to express that through a conditional sentence. It would be grounds for appeal.

I'm asking the committee to take a hard look at Bill C-9. While the objective behind it is understandable, this is a blunt tool. It is not an effective and, in my respectful submission, carefully tailored way to deal with the problem that I think the government is trying to identify.

[The Chair, Conservative, Art Hanger]

Thank you.

Next we will hear from the Mennonite Central Committee.

Mr. Loewen, the floor is yours.

[James Loewen, Coordinate, Mennonite Central Committee Canada]

Thank you very much.

My names is James Loewen, and I come from the promised land of Langley, British Columbia. I'm glad to come all this way. It's lovely here.

I'm here on behalf of the Mennonite Central Committee Canada. It is the service, development, and relief agency of the Mennonite and Brethren Churches in Canada. There is a family of MCC organizations in Canada with provincial offices in five provinces. Collectively, we have a wide range of programs that include walking with aboriginal people, helping refugees resettle, supporting people with mental illness, working with victims and offenders involved in the criminal justice system, and working directly with people in poverty. This diversity has helped shape the brief on sentencing issues that we share with you today. I want to acknowledge immediately that the brief associated with this presentation and this presentation do not directly address the insights and concerns that reflect aboriginal wisdom and experience. I do know that this wisdom and experience is important and ought to have a place here.

One part of MCC Canada's work involves the development and support of restorative justice programs across Canada. We take an interest in not only the practical grassroots development but also on creating a sustainable environment of growth for restorative justice programs. Currently, MCC Canada has a network of over 35 restorative justice programs, ranging from well-established internationally regarded programs to cutting-edge pilots seeking to increase their capacity.

It is with this foundation that MCC Canada and its network come before you with this brief. We appreciate the opportunity to be heard and to have a voice in this discussion of Bill C-9. In particular, we will speak to the concern that serious crimes be dealt with seriously, the concern that victims have more input into the justice process, and the concern around the effects of the increased use of incarceration.

In particular, we are recommending that the government expand the use of conditional sentencing. In this it will be necessary to expand the role of the victim throughout the justice process and expand the resources available to victims and to the programs that provide necessary justice processes, such as restorative justice programs. As this bill responds to issues raised in the news media, I thought it would be helpful to reflect on these issues in the context of a story. The following story can be found on the CBC website.

In August 2001, Michael Marasco was attacked in a case of mistaken identity. His attacker, Erron Hogg, beat Marasco into unconsciousness with a metal rod. After undergoing extensive brain surgery, 25-year-old Marasco now suffers speech and memory impairments and has had to give up his dream of becoming a lawyer. Queen's Bench Justice John Scurfield gave Hogg, who is also 25, a conditional sentence of two years less a day and ordered him to write an apology to Marasco. He must complete 400 hours of community service and abide by a strict curfew. His sentence would be followed by three years of supervised probation. The victim's sister, Maria Marasco, says her family was shocked by the sentence. She read her mother's thoughts: "This experience has left my family with a shattered belief in the Canadian justice system. It is solely based on money and politics. The justice system has wasted our time, not to mention taxpayers' money, over the past two and a half years that it took to come, finally, to a decision to let this criminal go free."

As you may know, this sentence was appealed and overruled, with Hogg being sentenced to a three-year term of incarceration.

On the surface, this story seems to support the approach of Bill C-9, as there were no further cries of injustice from the Marascos or the Ministry of Justice in Manitoba regarding the sentencing. However, if we look deeper into stories like this, we begin to see common themes. It seems clear that one key problem with this sentence and other conditional sentences involving more serious crimes is that they convey a message that these crimes are not taken seriously. Another issue is that victim input and consideration in the sentencing process is inadequate, to say the least. There is also concern that the conditional sentences are not a useful deterrent. The obvious assumption here is that crime plus time equals justice. Anything less is soft on crime and lenient.

Bill C-9 is an attempt to respond to stories like the Marascos'. MCC Canada fully affirms the view that serious crimes need to be dealt with seriously and that victims and communities ought to feel safe.

We agree that there have been conditional sentences that are disturbing; however, they are disturbing primarily because victims were disempowered and further harmed by the way that conditional sentences were handed down. The primary concern here is not with conditional sentencing per se, but with the failure to respond meaningfully to victims' concerns and issues. This failure is endemic to the system and is a natural outcome of an adversarial system of laws, one which has little room for the victim or their painful experience and complex needs. This reality is recognized in many reports, one even pointing out that justice professionals recognize and recommend more involvement of victims in decisions that affect them.

If we are to take serious crime seriously, then we need to take the needs of its victims, all of them, seriously. As studies have shown, these needs are complex and variable and often have little to do with incarceration for the sake of incarceration.

With regard to victims' needs, the National Consultation with Victims of Crime has illuminating insights, some of which are relevant to Bill C-9. One is the need for victims' rights to be elevated in importance to at least parity with offenders' rights. Another is input into decisions that affect them, such as plea bargains, charges, sentencing, and parole. A key need is respect, something that is occasionally experienced as a result of individual efforts of staff but is not present at a systemic level. A significant and primary need is for safety and reduction of fear associated with the offender and potential reprisals.

Bill C-9 only superficially responds to two of these needs, one for respect and the other for safety. This bill appears to send a message of respect, of hearing and taking seriously the needs of those victims who have experienced conditional sentencing as a travesty of justice. However, this bill does not address the needs of victims who support the conditional sentence given to their offender, those who believe the reports of the ineffectiveness of incarceration, and those who understand that the true travesty of justice is a failure to attend to the needs of the victim.

Bill C-9 does seem to offer temporary safety to the victims by removing the offender from the community. Sadly, as has already been mentioned, this is not the case. Bill C-9's efforts at change end up providing for neither the increase of respect for victims within the system nor for their safety in the medium or long term. This bill only responds to the surface needs of a few and does not take the stories of anger and betrayal as an opportunity to look deeper and address root concerns. Ultimately, then, by failing to respond to the known substantive needs of victims, we fail to protect and respect those who cry for change.

This bill will likely diminish our already limited ability to provide meaningful justice options for Canadians. The significant increase in resources that provincial jails will require will, of necessity, reduce opportunities for justice.

The CCJA brief clearly indicates that any restriction of conditional sentencing will, of necessity, restrict the restorative opportunities available to offenders and victims. An offender who stays in the community has an opportunity to maintain an income, a portion of which can be used for restitution towards the victim. As there are few unlimited resources for victims from government, it is doubly damaging when extra resources are used to incarcerate an offender.

It is worth noting that restorative justice has been mentioned quite a few times in relation to conditional sentencing. Let me assure you that conditional sentencing is not necessarily restorative justice; it is not consistent with restorative justice to order someone to apologize or to serve time. Offenders best understand and value the consequences of their crime when they have worked through the impact of their behaviour in mutual processes with the victim and the community impacted. Conditional sentencing merely removes some of the barriers that incarceration puts up.

One of the claimed justifications of incarceration is that it provides specific safety for communities and victims. There are, however, significantly less expensive and highly effective alternatives to incarceration even in cases of high risk, an example of which are circles of support and accountability. Circles of support and accountability have been so successful at reducing recidivism of high-risk offenders that they have proliferated across Canada and have begun to appear in other nations, including the United Kingdom, with increased interest from the U.S. I can refer you there to a report of a circle of support and accountability in Toronto.

[The Chair, Conservative, Art Hanger]

I ask that you bring your presentation to a conclusion.

[James Loewen]

Certainly.

It is particularly troublesome that there is such a significant interest and effort put into the development and carrying forward of bills, such as this one and Bill C-10, that are based firmly on an outmoded paradigm of justice. It is as if we are looking at a black and white reel-to-reel movie that the Minister of Justice is trying to tell us is state-of-the-art, yet we can go home and watch a high-definition full-colour movie on my big screen. In MCCC's experience and in the experience of the programs MCC Canada works with, Bill C-9 is a reflection of a failure to see justice in full colour.

MCC Canada recommends that the government expand the use of conditional sentencing. In this it will be necessary to expand the role of the victim throughout the justice process and expand the resources available to victims and to the programs that provide necessary justice services, such as restorative justice programs.

MCC Canada calls on the Government of Canada to actively work towards a criminal justice system that moves beyond an adversarial legal system to one that will deliver justice through active mutual processes that involve victims of crime, their offenders, and their communities.

We call you to a creative and courageous response that will honour the rich faith traditions of Canada's citizens, the best in our legal tradition, the wisdom provided by first nations, and the academic knowledge developed as a result of the harsh lessons we have been confronted with. Stories like the Marasco's demand no less from us.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Loewen.

Ms. Prober, please.

[Rosalind Prober, President, Beyond Borders Inc.]

Good afternoon.

My name is Rosalind Prober. I'm the president of Beyond Borders, which is a volunteer, non-profit organization dealing with global child sexual exploitation.

Beyond Borders is part of a multinational NGO, a non-governmental organization, called ECPAT, End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes. ECPAT is based in Bangkok, Thailand, and I'm on the board of directors.

To be transparent, a criminal lawyer with the same last name as mine has been ultra-vocal in the media, ranting against a fellow Manitoban, Vic Toews, and this legislation. That would be my husband. We disagree when it comes to “home sweet home” jail sentences. Incidentally, I'm not a lawyer, but I'm not apologizing for that.

I'm here today to speak on behalf of children who are sexually victimized by adults. Holding perpetrators accountable is certainly not easy for children. Many abused children do not live in Canada. Many are victims of Canadian child sex tourists. Many are totally incapable of withstanding punishing cross-examination on the intimate details of their sexual victimization in our “win at all costs” adversarial system. Many are found to be not credible.

As we all know, sex crimes can be life altering, and they have a heavy impact, especially on the most vulnerable in society, who are the easiest to abuse, in many cases. The disconnect between victimization statistics and criminal justice statistics shows all too clearly that most sex crimes are not reported.

On behalf of these children and children who do manage to successfully prosecute abusers, Beyond Borders supports Bill C-9. We support the removal of conditional sentencing for sexual assaults or other sexual offences against anyone under eighteen when the state has prosecuted by indictment for a crime that carries a maximum sentence of ten years or more.

Tough laws on paper are nothing more than lip service when they are constantly ignored. This is an egregious violation of children's rights to justice.

Should Canadians be reluctant or hesitant to use the justice system to denounce sex crimes against children? In Beyond Borders' view, the answer is a clear no. Society has a right and a duty to children, as documented in all the international conventions and protocols we sign, to condemn conduct that it finds intolerable. Surely sexual activity with children is such conduct. Surely the message from the justice system to the public should be that these crimes are abhorrent and very serious.

Has the judicial branch failed in its duty to protect the most vulnerable in society by giving slap-on-the-wrist sentences for serious sex crimes against children? Yes, it has. Conditional sentencing has been abused and overused. The fundamental principle that a sentence must be proportionate to the gravity of the offence has gone out the window.

Aside from leaving the age of consent at fourteen, Beyond Borders supported Bill C-2, which was brought in by the previous government. That bill imposed on the judiciary mandatory minimums for those convicted of sex crimes specifically against children. Bill C-9 will ensure that those who sexually assault children, commit incest, and so on, will not escape incarceration. It should be pointed out, however, that unlike Bill C-2, which imposed specific minimum sentences, this bill still leaves the door open to judges to impose suspended sentences and probation for sex crimes against children.

Is jail in the community, or house arrest, equivalent to incarceration in prison? Clearly not. Crime victims have the right, especially children, to be treated respectfully in the court and told the truth about sentencing perpetrators. A person's home should never be equated to jail; that is preposterous. Sex offenders against children who get house arrest are going home to their own beds. Because there are so many sex offenders against children from upper-income brackets, many return to luxury. It is not credible to refer to homes as jails. It is disrespectful of everyone to pretend that going home after being sentenced is the equivalent of real jail. House arrest is an undeserved soft touch; if it weren't, it would not be so sought after by criminals.

In 2001, a young 12-year-old first nations child in Saskatchewan had the enormous misfortune of being spotted by three adult men. When any 12-year-old ends up hysterical, dead drunk, and has to be hospitalized due to clear evidence that she was sexually assaulted, one would think that a sentence of house arrest for a perpetrator of this crime would be impossible. However, not only did Dean Edmondson get house arrest, he also became the victim in this case as the 12-year-old was portrayed as not just a consenting and willing participant but as a sexual aggressor as well. As precedents go, this is one Canadians should not look to with pride.

Sex crimes against children are often premeditated, with some involving elaborate planning and manipulation of not just the kids but their parents as well. Sex crimes can leave long-term scars and, as we all well know, can lead to destructive lifestyle choices and suicide.

There are strong societal sanctions against sex with children. Millions of tax dollars are sadly going into teaching kids how to protect themselves. So when an adult chooses to cross that barrier into behaviour that harms society's most vulnerable and cherished members, he or she should have no possibility of what is in reality just an inconvenient curfew. House arrest should not be an option in sentencing child sexual exploiters.

Bill C-9 closes that option, is in the best interest of children, and should be supported by this committee.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you very much, Ms. Prober.

We've had some new points presented to the committee. I'm going to open up the discussion.

Ms. Barnes, you're first to question.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

I'll start with Ms. Prober, since she went last.

Thank you all for your input. It's important for us to hear diverse stories.

Ms. Prober, you only really talked about the sexual parts. Are you making comments on any other parts of the bill?

[Rosalind Prober]

Absolutely not.

[Sue Barnes, Liberal, London West, ON]

So you're not concerned with property sections or anything like that?

[Rosalind Prober]

Absolutely not.

[Sue Barnes, Liberal, London West, ON]

Mr. Loewen, the restorative justice principles are already in the sentencing principles under section 718 of the Criminal Code, as I'm sure you're well aware. A section in this bill does talk about those sentencing principles of the Criminal Code still being in effect, but quite literally you're going to have a judge sitting there with his hands tied and discretion gone.

I'd like a very brief comment on what you think will happen to the balance of the sentencing principles, especially with one of them being restorative justice that you're so concerned about.

[James Loewen]

When I think about the sentencing options that come before judges and the further restricting of the options they can engage in, I remember a conversation I had with a friend of mine who is also a judge in northwestern Ontario. He shocked me when he looked me in the face and said, “James, I can't tell you how unhappy I am and how unsatisfied I am with the sentencing options I have available to me. Any option brought forward by the community that this crime has affected will be better than any sentencing option I have in hand right now.”

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

I'd like to go to David, please.

In the last Parliament it was never debated, never got as far, but there was Bill C-70. The intention of that bill--I'm not sure if you're familiar with it; I think the other witnesses are.

That was a presumption. It narrowed it down that the presumption was no conditional sentencing would apply in a certain list of offences. Those offences were terrorism offences, and that is defined in the Criminal Code, and actually would, I believe, go further than the delineated crimes here in the terrorism area; the criminal organization offence; serious personal injury offence, as defined in section 752; and any offence--and I picked this up from your evidence today--in respect of which, on the basis of the nature and the circumstances of the offence, the expression of society's denunciation should take precedence over any other sentencing objective. It also gave an extra clause that said if a judge wanted not to utilize that--in other words, to go against the presumption--the judge would have to put in writing before the court and justify why he took that away.

That seems very close to the testimony you've given here today. It certainly would stay within the principles of sentencing that I think are going to be very difficult under the current paragraph we have.

But before I ask you to comment on that, I will also say that the way...and the minister has come before committee, and I take him at his word that he's allowing us to figure out other ways to do this catchment if we so find an appropriate way. He's basically admitted this is a fairly arbitrary way. Short of listing things, as you actually go through the way it's set up in this bill, many of the offences would be captured. They're just listed differently. Then, because of the way the current bill is set up, it excludes the hybrids, so you take out a whole other set of potential things.

So to a certain extent they're similar, but they don't have the same quality of rationale, if I can put it that way, and I would think the Bill C-70 approach, or the approach you've come up with, would be one that would be more able to still leave the discretion with the sentencing judge. I believe your interpretation that we will have the prosecutors doing the discretionary work behind closed doors, not in a transparent manner, and there have been numerous studies to show that, despite the minister's own evidence saying no, no prosecutor would do that. They do it all the time, and the empirical data is there in the studies showing that it happens. It happens in every courtroom.

On that, I'd like David and maybe Lorraine's group to comment on those two things. We're only two to three weeks away from having to sit down seriously in this committee and work on some amendments to this, because I think there is some appetite for closing the door somewhat. Even though I'm a great believer in conditional sentencing, I'm saying we have to come up with something that's workable, not arbitrary.

[Prof. David Paciocco]

Thank you very much. I think that really is the key. As I say, I have sympathy for the objective behind this initiative, because conditional sentencing can I think be dispiriting to the Canadian public, who need to have faith in the administration of justice. Notwithstanding the comments we've heard to the contrary, I have tremendous respect for those views. The reality is that conditional sentencing can be an inappropriate response, in the view of those the criminal justice belongs to.

But the result of having an absolute prohibition on conditional sentencing for a long list of offences based on the maximum period of incarceration is not an effective way to deal with the problem. There are cases where conditional sentencing is the most sensible, economical, and appropriate response.

You have to leave the sentencing discretion with the judge. The problem right now, in my respectful submission, is that our appellate courts have taken the view that conditional sentencing is a significant deterrent and has a significant denunciatory impact. Even in cases where you need to have a denunciatory sentence, it can still be an appropriate response.

My feeling is that it is an appropriate response when you need to keep the offender in the community for purposes of rehabilitation and when it's not so serious an offence that the public will be outraged that someone gets to go back to their home. That's why I favour the discretionary approach you have described, which is very close to the position I'm putting forward.

If you put presumptions in the hands of a judge, the judge will be obliged to act consistently with those presumptions unless the judge is dealing with a particularly specialized case where there's some compelling reason to depart from the norm. I can assure this committee that if it provides clear presumptions with respect to the impropriety of conditional sentencing in cases where deterrence or denunciation require priority, judges will respect that. In those cases where they don't, that will give the prosecutors appropriate grounds for appeal.

Right now the discretion in sentencing is extremely broad, and in the absence of that kind of guideline, appeals are very difficult to bring from these kinds of cases. So rather than take what I think is a “throw the baby out with the bathwater” approach, as I describe it in my paper, where you just say we're not going to have conditional sentences in any of these cases, even if they might make sense, because we just want to have a clear line.... That's not the way sentencing operates. We sentence the offender and the offence and we look at all of the circumstances. As I said, there's such a huge range in seriousness in the way offences occur. If you take away the conditional sentence option absolutely, you're going to get some cases where judges give a lesser sentence than they would have given under the current regime, just because the alternative is not an appropriate or rational response.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

They wanted to comment.

[Jane Griffiths]

I would like to respond to the aspect of how conditional sentencing affects victims of crime, because it can also be a very useful response.

Can I ask someone to speak specifically to that, who is sitting...?