Justice Committee on Nov. 20th, 2006

[Kim Pate]

If there was equality before the 0.08, then I think that argument might hold more water. When we look at mandatory minimum sentences for drunk driving, for instance, the research shows that it has predominantly been the public education activities that have been effective. It shows that those people who are picked up still tend to be those who can't afford to be taking taxis and don't have money for expensive intervention programs. If you try to get into a drug or alcohol addiction treatment program these days, you're looking at four or five months.

The reality is, the inequality happens in many other ways. To only look at the penalty as being equally applied, when the application of every other facet of early intervention for people who are seeking support to avoid having to drive.... All of those things are part of where the inequality comes in.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I would like to ask you one last question, Ms. Pate. I don’t know if you are familiar with Montreal, but I’m going to explain to you what is currently happening there. There are currently street gangs. One of your documents states that African Canadians—in this case, they are Haitians—are involved in street gangs. They control the drug trade, prostitution and gun trafficking. You just have to read the book by Ms. Mourani, a Bloc Québécois Member of Parliament, and you will understand what is currently going on in Montreal.

I am asking you this question, of course, because you say there is going to be over-representation of Haitians in prison. I understand; they are the only ones currently in gangs. Before, there were the Hells Angels and Italian Canadians. You say we are going to target poor Haitians. I understand; they are currently the only ones. Maybe later it will be Jamaicans or Chinese, I don’t know. I am trying to understand. You cite racism. You say that White people only target African Canadians, or Haitians in this case. In your opinion, that argument justifies not imposing a minimum sentence. I am trying to understand your logic.

Don’t be afraid. I’m not shouting and I’m not angry, far from it. I am simply trying to understand your argument. You raised it, not me. I am trying to follow you, because we, the members of the committee, have to make recommendations. Thank you.

[Kim Pate]

If we were talking about only people who are involved in organized crime and senior members involved in organized crime, we might be having a different discussion. But what we know is that these laws won't only apply to those individuals. These laws will apply across the board. For those who do think about the penalties—and I would suggest that's not the average person I've seen in the prisons, whether it was when I worked with men, with young people, or, for the last fifteen years, with women—they will be the ones offered up. They'll be the ones in the front who will be getting these penalties. It certainly won't be the people who are funding much of what you and I and most people would be concerned about. If in fact that's the logic, I would suggest it's a flawed logic in terms of actually dealing with those people who are most problematic.

The more you focus on this sort of approach, the more you draw resources out of assisting the very individuals who might otherwise get drawn into that lifestyle because they have virtually no other options, whether they're in Montreal, Toronto, northern Saskatchewan, Winnipeg, or wherever we're talking about.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Woods, I have a question for you, since you're providing information on this particular bill. There's already a minimum sentence for use of a firearm in committing certain offences. It's four years, I believe, on a specified list. Is that not correct?

[C/Supt Michael Woods]

I would have to verify it.

[The Chair, Conservative, Art Hanger]

You don't know if there are minimum sentences on the use of firearms?

[C/Supt Michael Woods]

Yes, there are minimum sentences.

[The Chair, Conservative, Art Hanger]

Have you done any work, study, or examination on the number of charges laid where the firearm has been used and the number of charges that have been withdrawn when they get to court, or thereabouts--what percentages?

[C/Supt Michael Woods]

I haven't personally. I have some statistics here. Perhaps there might be some here that you're looking for.

I have weapons offences for 2003, 2004, and 2005.

[The Chair, Conservative, Art Hanger]

I'm not talking about convictions. I'm talking about charges laid where firearms have been used and then the number of cases where the firearm charges have been withdrawn.

[C/Supt Michael Woods]

I didn't research those.

[The Chair, Conservative, Art Hanger]

You didn't do that.

Thank you very much.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

Could I ask our researchers to verify, today or later on, that there is an existing four-year mandatory minimum in the Criminal Code for a firearms-related offence?

[Robin MacKay, Committee Researcher]

Under section 344 of the code, for example, robbery with a firearm has a minimum punishment if you use a firearm.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Of four years?

[Robin MacKay]

Yes.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

A term that has come up here in this discussion is “incapacitation”. It's interesting to see how the lexicon evolves, because the average person speaking to me about this would say, “Well, if the guy's a real bad criminal, I want to get him off the street.” That's essentially incapacitation. That's not deterrence, because we've had a whole mixed bag of information on deterrence, to the point where it's not clear to me that heavy sentencing is a deterrent.

So we have this incapacitation thing, and it would be nice if we could just identify them, like back in the days of Oliver Twist or Les Misérables, when you could just say, “Those are the bad people. Those are the criminals and everybody else is a good person.” You could focus on incapacitating all of those bad people.

But criminals have a way of popping up in the strangest places these days, including in Parliament. I had a colleague who was convicted about forty or fifty years ago for the offence of armed robbery. Mr. Thompson had a colleague convicted of a very serious sexual offence. And you have the odd criminal who manages to find his or her way into a police force and into a church. So society isn't quite that simple.

Judges have to do sentencing, and you have young people and old people. I'm sure that if you had a 90-year-old who managed to get himself into difficulty somewhere with a firearm, a judge would be really happy sentencing that individual to a mandatory minimum.

I must say that local police have come to me and said, “Gee, I'd just like to put some of these guys away. Put him away for a period of time and you know he's off the street.” It's usually a “he”. Is there any evidence about this whole concept of incapacitation and what it might save in terms of crime? Has anyone tried, either from the point of view of the Elizabeth Fry Society or that of the RCMP, this incapacitation function? Would it work for us, realizing that you can't incapacitate somebody forever and that they do come back out on the street? Has anybody ever costed that?

[C/Supt Michael Woods]

Not that I know of. It perhaps has been done somewhere.

My personal experience is that incapacitation does work. When the person is in jail, they can't commit other offences. If you can identify, as you say, the most prolific offenders and keep them in jail the longest, then you're going to have a significant impact on crime. But the key is identifying the prolific offender. If you have others in jail who are not prolific offenders, the impact on crime is much less noticeable and much less effective. Incapacitation, to get your best bang for your buck, has to be focused on the prolific offender, but it does work.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

But these days you have to have a record as long as your arm to be identified as a prolific offender. That's my experience. Your first three offences, if they're—if I can use the term—the run-of-the-mill, may get you some time, but you're not going to do five years. So incapacitation is rather light.

[C/Supt Michael Woods]

If I may, when we're talking about the judicial process, we now have victim impact statements in court. Perhaps it's time for a community impact statement to be entered in court and to be given weight by a judge when the decision for a punishment is ready. Perhaps that might serve to identify who should be put in jail and for what length of time.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

We realize, of course—and I think you've already made reference to it, Mr. Woods—that if you do place somebody in prison for a material period of time, he, and probably she, will become accustomed to the environment present in our prisons. So that's a huge social downside. Prisons are schools of crime. That perspective is part of your crime prevention initiative, but has anyone become more specific? Have you found any evidence that would allow us to measure those other downside costs of increased incarceration or the school of crime factor?

[C/Supt Michael Woods]

We do have evidence that it does take place. Particularly in the case of young people, in their first and second exposure to jail, they learn their craft from the experts they meet in jail. They increase their network of contacts. In fact, we're seeing an increase in the areas in Canada in which we find gangs. One of the reasons is that young people are going into prisons and associating with gang members and taking that modus operandi back to their communities and developing mini gangs of their own. There's no question that they learn their craft and they broaden their networks while they're in jail. That's why it's so important to try to intervene, so they don't go back, or to give them some hope where there is no hope.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Ms. Pate.

[Kim Pate]

Thank you for asking the question. It's been a while since I worked in the community with the police, but I did volunteer with the police, and I at one time worked at the RCMP as well.

One of the initiatives that I think you may have been alluding to is focusing on those individuals who are seen as causing the greatest difficulty. I remember when I was working with the Calgary Police Service in particular, there was a group that had developed looking at youth participation. They estimated that of the young people who were then being jailed, they needed less than--I believe it was--5% of the beds that were then available to imprison young people. To actually achieve the results, they needed to move those individuals out; decarcerate the rest; and have community services and better support services in place for those young people. There may be some of that material left from the old SHOCAP, as it was called, the serious habitual offender comprehensive action program. You may want to look at some of that, out of Calgary. I think they were working in conjunction with other groups. As well, the National Crime Prevention Council did some research on this, building on the RAND study that was done in the United States, of a similar nature on the long-term costs of imprisonment over crime prevention and other supports.

I suggest you also look at some of the material we talk about in our brief, regarding the impact we're seeing of the cuts to those other areas, and the long-term impact we're seeing with people who have mental health issues ending up in the prisons. Not only are the issues you've raised coming up, but we're actually seeing people getting into the prison system and not being able to get out.

Someone who swears and yells because of a mental health condition may be seen as problematic in a prison setting, and so ends up being held in the most secure setting, often accumulating charges. We have people who come in on very short sentences and end up accumulating charges in the prison itself. A young aboriginal woman whom we're dealing with right now came in on a three-year sentence and is now serving 22½ years. That's not a risk to the public. There's nobody out in the community who would be concerned. But yes, there's been a risk to herself, to other prisoners, and to some of the staff she's working with. Yet almost everybody agrees that most of those individuals shouldn't be in there in the first place, and that they are there because of the cuts to all those other services.

I'd encourage you to look at some decarceration models of specific groups. Jerry Miller who was then--I can't remember if he was the minister now or deputy minister for juvenile corrections in the state of Massachusetts, but he basically decarcerated all the young men in that state when he was in charge of corrections. He wrote a book called Last One over the Wall. He was brought up here for a while to do some work on youth justice issues. What he said was that the piece that they didn't do right when they decarcerated those kids was to not actually have those resources flow with those kids into the community, because essentially the only kids who went back into the system were those who had no supports in the community to start with.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Pate.

Just for the benefit of the committee, the mandatory minimum sentences that exist at present are for the following: attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, robbery, and extortion. Those are presently offences, in which a firearm is used, that will have a mandatory minimum of four years.

Mr. Moore.