Thank you, Mr. Chairman. I suppose there's not a whole lot more to be said.
To respond to Mr. Moore, he's suggesting—I just use his words—that there are some serious offences that won't be caught by this restricting section. But in fact almost all the offences he might be concerned about are caught by the Criminal Code section itself, because conditional sentencing, under the existing Criminal Code provisions, can only be used if the proposed sentence is less than two years. If a judge reaches a conclusion that a crime is serious enough for a penitentiary sentence, there cannot be, under the existing provisions, access to the conditional sentencing provisions.
The Criminal Code does not impose conditional sentencing on anyone; it is only a sentencing option. I heard evidence here that the government bill in its current form could or would seriously impair sentencing procedures currently being used in aboriginal sentencing both in the north and in urban areas, and in some specialized courts—there are three or four drug courts now specializing in that area that make use of conditional sentencing.
I practised in the Toronto area. I know there are some courts that, while not formally specialized courts, focus on either women's matters—a criminal court for women—or family. These are courts that would, to a greater or lesser degree, from time to time want to rely on conditional sentencing, so I have been cautious about unduly restricting it.
For a reasoned restriction to address the hypothetical glaring example of a poor decision by a judge in sentencing, you have my attention.
My colleague says “appeal”. The way to solve the 2% so-called error rate among judges is probably an appeal. I admit that they are expensive, that we don't want to bog our crown attorneys down in too many appeals, but that is a possible solution.
The bill, the way it was drafted, used a measuring tool that I believe everybody around here sees as a very rough instrument: the 10-year maximum sentence. For all the reasons that were mentioned by our witnesses, including our experts, it just wasn't a good instrument as the measuring tool to restrict conditional sentencing.
So we looked for another one. I looked for another one. The best one we could come up with, within the scope of the bill, is the one we have here today.
For the record, I just want to reintroduce my concern. Because the bill makes a distinction between indictable and summary procedures when it comes to the availability of conditional sentencing, I viewed this as a pushing down onto the crown attorneys and police of discretion and decision-making early on in the process, which would not affect the weight of the criminal procedure to be used but would actually affect the availability of this type of sentencing to an accused. That's an additional level of decision-making on the part of a crown attorney, and it just didn't look right to me to have crown attorneys making those types of decisions that early in the process.
As it stands now, crowns will be making some of those, but because of the design of the amendment, which I intend to support, the ambit of their decision-making will involve a smaller basket of Criminal Code charges, and I regard that as a good thing.
Is the current amendment as effective as a specific listing would be? No, it probably isn't, but if we were to use a list, we would probably argue indefinitely about what would and wouldn't be on the list. But I am prepared to have confidence in the judiciary that when a serious matter warrants a sentence greater than two years, we don't have to be concerned about conditional sentencing, because it simply isn't available under the current regime.
Thank you, Mr. Chairman.