Justice Committee on Nov. 23rd, 2006

[Fiona Sampson]

Okay. Thank you. I keep pitching it, hoping you will.

We have a lot of the evidence in there in terms of the way in which Bill C-10 targets these already disadvantaged groups and how it perpetuates the disadvantage experienced by these vulnerable groups. That meets the fundamental criteria of section 15.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

You can't do it on a collective basis, though. You have to have an individual.

[Jonathan Rudin]

You have to have an applicant. Someone has to be charged with an offence and you then have to isolate the section 15 issue. I agree that finding that applicant is not necessarily a challenge, but then you would have to place it within the context of the specific offence.

Launching a section 15 challenge on its own may be difficult. Certainly, we have contemplated and thought about the fact that not enough resources have been put into the criminal justice system to adequately deal with aboriginal overrepresentation. That is perhaps a ground for a section 15 challenge. It seems to us, given what the Supreme Court of Canada said in Gladue--the fact that things have not changed, the fact that things have got worse--this is an indictment of the way the system operates, and that is a possible avenue for litigation.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

They're likely to throw that back at you and say, based on the autism decision, in particular, if the resources aren't there, that's a political decision or governmental decision and we're not going to intervene.

[Jonathan Rudin]

I would make the distinction in that the criminal justice system is within the purview of the federal and provincial governments. For example, there is a recent decision of the Ontario Court of Appeal, a case called Kakekagamick, in which the Court of Appeal specifically mentions the fact that the courts in Ontario are not receiving the information they need in order to sentence aboriginal people properly. So I think it's on those sorts of bases that a challenge might be launched.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

That's all, Mr. Chair. Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

My thanks to the witnesses for being here today.

We've had a full day and lots of testimony, so there's lots to think about. I really want to focus on what this bill does, not what it doesn't do.

We heard testimony today from the police, from attorneys general, from other concerned groups, from you, and from defence lawyers. In the criminal justice system, of course, there are all the other aspects. We've heard from Mr. Biggar that there's cost, and we know that. The Minister of Justice had an extension on the current legal aid funding. That's something that's raised, of course, by the provinces and something that's an aspect of our criminal justice system. And Ms. Sampson mentioned that this bill does nothing when it comes to decreased vulnerability, promoting equity, ending oppression, and those kinds of things.

Let's talk about what the bill does. This bill is about making sure that people who use a firearm in a case of attempted murder, discharging a firearm with intent, sexual and aggravated sexual assault, kidnapping, hostage taking, robbery, and extortion serve a certain amount of time in prison. It doesn't change the maximum amount to which they can be sentenced, but it sends a message from Parliament that in the past, some individuals have not received an appropriate sentence. We want to give our direction on what we can do as the chief lawmakers in the country, on what we feel is appropriate.

Of course, there are all different kinds of circumstances. We've heard the examples of rural areas versus urban ones and so on. But just to focus on what the bill does, we've heard some testimony that some people don't believe there should be any mandatory minimums whatsoever. There already are mandatory minimums for certain gun crimes. Is it the submission of anyone here that there's no case where there should ever be a mandatory minimum?

I know you're not going to comment directly, Mr. Biggar, and I understand where you're coming from. You have funding limitations and you need to make a pitch. The only comment I would make on that—and I'll get your response and then go back to the first question—is that of course this costs money. There's going to be money saved in some areas because of this, and there's going to be money spent. But when the discussion turns only to money, I think we lose sight of the fact that we're trying to protect lives. We heard testimony today that when you take off the street the small number of people who are committing serious crimes, lives can be saved and the gun violence goes down. The chief of police from Toronto gave that testimony today.

So I'd just like your comment, Mr. Biggar, on the idea that there is more to this story than cost.

To the others, do you feel there should ever be minimum sentences in any circumstance?

[George Biggar]

If I could just respond for one second, as a citizen, one has an opinion, but I'm not here as a citizen. I'm here as a representative of Legal Aid Ontario, so I fully understand. As I said, I've been here all day, so I understand the nature of the debate about the bill. All I'm trying to say is that this bill, along with all the other initiatives that the provincial and federal governments are bringing to bear on the problem, are driving up costs throughout the system. All levels of legislature need to be aware of that and be conscious that all parts of the justice system need to be funded.

I can now give a bit of an answer to Monsieur Ménard, although I see I've lost him. It's come back to me that the request of the provinces in relation to criminal legal aid has been a return to the historic original funding levels, meaning a full, fifty-fifty sharing in the criminal legal aid expenditures. That's what the demand is for.

Thank you.

[Rob Moore, Conservative, Fundy Royal, NB]

And to the others, is there ever an appropriate case where Parliament should send a message that a certain offence should require a certain amount of time out of circulation, as it were?

[Jonathan Rudin]

I wouldn't say that there is never a case, but I would make two comments. First, we've drastically increased the number of mandatory minimums from the long time ago when I was in law school when there was first-degree murder and second-degree murder, and now we're adding and adding and adding. I don't know that it's necessarily helping in any sense anywhere.

One of the reasons for that is a term that you used, and I think it's an important one. You said that passing these bills sends a message. One of the questions is, who is the message being sent to and who do you think is receiving it? In some cases, I think the message that is being sent, the intention for the message, is not so much to those people who may be potential offenders, but it's a message being sent to the broader Canadian public that we as a government, whoever the government is, is getting tough on this particular crime. But does the message actually get through to individuals who are committing crime? That's where the data seems to suggest it doesn't.

I don't think people who commit the range of sexual offences that just had minimum sentences in the last Parliament know that they've been increased. In fact, a lot of lawyers don't know they've been increased.

If you increase the minimum sentence to two to four years, one to three, is there going to be a lot of discussion on the street saying, I guess we shouldn't do that now, the sentence has gone up two years? If the thought is that those messages are going to reach the potential lawbreakers and change their minds, I don't think that's likely to happen.

[Fiona Sampson]

You asked what Bill C-10 does. From LEAF's perspective, what Bill C-10 does is discriminate. That's what we see is the effect of Bill C-10.

I understand that the goal is to reduce violent crime, and that's a laudable goal, but we would argue that these mandatory minimum sentences don't achieve that end for the reasons I have already outlined.

In terms of deterrent effect, I think all the evidence we have supports the proposition that there is little evidence to support that mandatory minimum sentences have any deterrent effect. I think maybe it's helpful to think about deterrence in a couple of different ways to distinguish between certainty of conviction and severity of punishment, and that maybe helps to clarify why mandatory minimum sentences and the severity of punishment, as we understand it, doesn't have any effect in terms of preventing or diminishing crime.

[Rob Moore, Conservative, Fundy Royal, NB]

I think we have seen that there is other evidence we have before us that says when we target very specific crimes in a specific way, we can reduce the number of homicides, for example. We heard from Chief Blair today who said that there's a small number of people who are causing the problem, and when you take some of those people out of circulation you can lower the crime.

I do have to ask, Mr. Rudin, because you said in exceptional circumstances.... Of course, there are people who have made suggestions. We appreciate your suggestion on an amendment. Do you have any idea what those exceptional circumstances are? The concern that I think people have had in the past is that when you open the door a crack, eventually everyone is going through. What would be the exceptional circumstances?

[Jonathan Rudin]

I can't give you a list right now. I suppose I put some faith in courts of appeal--in the trial judge and in the courts of appeal.

Certainly we see regularly in Ontario many offences that do not have mandatory minimums, yet judges routinely hand out prison sentences, often sometimes penitentiary sentences, because the Court of Appeal has said this is what you would normally do. The Court of Appeal then sets out the sorts of situations that seem to be exceptional.

An exceptional circumstance is one that I think would shock the conscience of people that a particular individual is going to jail. I can't necessarily give you an example here. It's one of those things, though, that I think a judge would recognize, and that sort of finding would be subject to appeal by the Court of Appeal.

So I don't think it's likely to result in a widespread disavowal of the use of mandatory minimums. I think what it would mean is that it would be an exemption that would be possible in limited circumstances.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. Lee.

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

Thank you.

I have a question for each of our witnesses, the first one to Mr. Rudin. It's a bit of a lob, but I'm sure he'll deal with it well.

Looking at the Gladue decision and looking at the sociological circumstances involving aboriginal offenders, Bill C-10 is starting to look like some kind of a scholarship program to a boarding school or crime college, if it goes into effect. I'll just put it that way and I'll leave that with you. You can think about it.

Then to Mr. Biggar, I had always understood the court's view that the charter section providing for a right to counsel—certainly it wasn't a right to legal aid, but a right to counsel. I always thought it was the right to be able to go and get yourself counsel, as opposed to the right to actually have the counsel there. Could you update us on the status of that? I think you'll be pretty familiar with it. If that right to counsel has evolved into close to having a right to have legal aid, then this is always going to be a cost component of federal legislation, especially where it involves potential incarceration.

To Ms. Sampson, you've described what I would call “adverse effect” discrimination against women, imported by this proposed legislation. There was another component that was mentioned to me, and it involves a woman—unfortunately, there are probably a lot of them out there who are repeatedly subjected to intimidation by a spouse or someone in that circumstance—in a circumstance where she might pick up his gun and say, “Not anymore”. Then, in the event the court would find that the use, of course, of that force was excessive, she—the hypothetical “she”—could end up much worse off than he. Perhaps you could comment on that.

We'll go to Mr. Rudin.

[Jonathan Rudin]

It's interesting, the comment you made about jails and boarding schools. Actually, in the late 1980s, the Canadian Bar Association issued a report called Locking Up Natives in Canada. One of the things they found in that report, looking at Saskatchewan, was that—and all these figures have gotten much worse—aboriginal youth in Saskatchewan are more likely to go to jail than to graduate from high school. The point was made in that report that jails were becoming our contemporary residential schools. That is certainly true today, as we see 22% of inmates in Canada being aboriginals. Those numbers are up. Every year, those numbers go up.

When Gladue was decided, it was at about 19%. So this is a problem that we recognize, and if only looking at a problem made it go away, in this case looking at it and examining it seems to make it get worse. I don't think that's actually true, but people are prepared to look and to ring their hands but not actually do much about it.

I think you're right. The concern is that as we criminalize more and more people, and that's where they think they're going to end up and that's where they end up, they come out and just go right back in.

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

Better at it than when they went in.

[Jonathan Rudin]

As I mentioned, they've picked up a lot of new skills, but they're not skills we would want anyone necessarily to have learned.

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

Mr. Biggar.

[George Biggar]

You're right that the charter does contain a specific right to counsel, but the right to publicly funded counsel is really a matter of judge-made law. I think it's under the charter right to full answer and defence, but I haven't read the case in many years. It's a fairly old decision. It's known as Regina v. Rowbotham, a case in Ontario involving one of Ontario's most famous drug traffickers, actually, Rosie Rowbotham. There were a bunch of them charged. This was very a long trial. It was a conspiracy charge, and there were a couple that couldn't afford their own counsel but were not considered eligible for legal aid under the financial eligibility criteria. The court improvised a remedy, which was to order a stay of proceedings unless the Crown provided for a publicly funded defence counsel.

Rowbotham applications are frequently brought in courts across the country, and orders are frequently made.

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

Thank you.

Ms. Sampson.

[Fiona Sampson]

I think the scenario you described is very real. It does in fact happen. Absolutely.

This is why LEAF takes the position that getting guns out of circulation and taking preventative measures, such as endorsing gun control, are really much more effective in terms of promoting women's equality than measures, such as Bill C-10, that actually don't promote women's equality and the equality of other disadvantaged persons.

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

Thank you.