Justice Committee on Nov. 23rd, 2006

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

Mr. Petit.

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

Thank you.

I will make a short preamble. I will then ask a question of Mr. Biggar and perhaps also of Mr. Rudin and Ms. Sampson.

First, I categorically reject this statement that the Criminal Code is bias and racist. I would like to know how you can justify saying this. I have been a member of Parliament for barely nine months, but I will defend my friends on the outside, namely those within the Liberal Party, the Bloc Québécois and the NDP. They have worked for 10 or 15 years on the Criminal Code, and I do not think that they helped create racist or bias provisions.

My first question is for Mr. Biggar.

Legal Aid Ontario benefits from truly exceptional conditions. Indeed, for your work you are paid on an hourly rate basis, whereas in Quebec, the system is based on mandates. You probably know that there was a megatrial at the Gouin Legal Centre near Montreal. Of the 36 accused members of the Hells Angels, 19 asked for legal aid. The work was paid so badly that the lawyers had to make a special request for compensation, something which never would have happened in Ontario, since you are paid an hourly rate and things are fairly comfortable there.

You say that it might increase cost, but when charges are laid, they are often laid against someone who is already in jail, and the services of a lawyer are provided at the hearing. The Legal Aid System in Quebec works the same way. When the evidence is disclosed, you have the right to see it, and if you see that there is no case to be made, you can refuse to continue to execute the mandate. I do not know how it works in Ontario, but it seems that things proceed with much more ease over there than in Quebec.

My second question is for Mr. Rudin, whom I will great once again, since we have already met twice.

You say that Native People are overrepresentated in Canada prisons, among other places in Saskatchewan.

In Montréal, every street gang is made up of Haitians. Sooner or later, they will be arrested, which will result in there being more blacks in jail. In fact, this is already the case. And just because Haitians make up street gangs, does that mean our legal system is racist? I am trying to draw your attention on that point. Blacks living in Montreal are good people. Some of them are even special. However, today, they are the ones who make up street gangs. I am not saying that this will be the case 24 years from now. In Europe, in certain prisons, there are black wings because they are only filled with blacks.

I am trying to draw a parallel between something you said earlier concerning native overrepresentation in our prisons. The Capital of Nunavut has a population of 3,800 citizens. Let's imagine that a person up there acts like a white, and threatens his wife with a firearm in the course of the dispute. The RCMP takes him away, and so on. He will be kept in the municipal jail, but if he is found guilty, he will have to serve his sentence in a federal prison. That will be 3,000 kilometres from where he lives. So, believe me, I understand your point.

But would you change my mind if there was a federal prison in Nunavut, located directly beside this individual's place of residence? Is it a question of distance? We were told two or three times that sending inmates 3,000 kilometres away did not make sense. As you said, there are prison gangs, and if you want to survive, you have to be a member of those gangs.

I talked about the overrepresentation of blacks in Montreal, which is the large city, and about your own problem with overrepresentation. Does this imply that the bill might not work, might be racist, bias or something else? I want to know what you think about this because we will have to take a position.

[The Vice-Chair, Liberal, Derek Lee]

Monsieur Biggar.

[George Biggar]

I think your question, sir, has to do with comparing the relative ease of obtaining legal aid in Quebec and Ontario. I have had the privilege of serving on a federal committee with provincial representatives from Quebec, and I have visited the legal aid plan in Montreal and studied their operations. That was about 15 years ago, however.

As you know, the administration of justice is a provincial responsibility under the Constitution Act. Every province has a legal aid plan that is particular to that province. They're all slightly different. Quebec has an admirable legal aid plan in that it has very broad coverage, very wide coverage. Many more civil matters historically have been covered in Quebec than in Ontario, for example. The corollary was that for many years Ontario had a slightly more generous financial eligibility set of criteria than did Quebec, although I am aware that the financial eligibility criteria in Quebec have recently been increased. I think Quebec's are very close to Ontario's now.

My sense is that legal aid plans have been moving closer together in other ways. I think there are some great strengths in the legal aid plan in Quebec. I think in some ways it's better than Ontario's, but in some ways Ontario's is better than Quebec's. They are both relatively big, strong, and powerful plans among the plans of the country.

[The Vice-Chair, Liberal, Derek Lee]

Ms. Sampson.

[Fiona Sampson]

Monsieur Petit, you asked us about evidence relating to the discriminatory impact of the Criminal Code. In our brief, in footnotes 19 to 23, we actually provide a page of references supporting this position.

What I haven't mentioned today is the evidence we have from the United States and Australia, where mandatory minimum sentences are already in effect. They definitively have a discriminatory impact in those countries. They have been condemned by international human rights bodies. Most recently, the Committee on the Elimination of Racial Discrimination condemned Australia for the discriminatory impact of this mandatory minimum sentence legislation.

I think another point that highlights the discriminatory application of mandatory minimums is the fact that mandatory minimums are only applied to crimes that target already disadvantaged persons. You don't see mandatory minimum sentences applied to white collar crimes. It just doesn't happen. This is just another example of really what is adverse-effect discrimination. It's not direct discrimination, as the laws don't discriminate on their face; it's just the impact. Pursuant to Supreme Court of Canada jurisprudence, intent--direct discrimination, with the intention to discriminate--is not necessary to establish discrimination.

[The Vice-Chair, Liberal, Derek Lee]

Mr. Rudin.

[Jonathan Rudin]

Thank you.

You raise an important question, one that is difficult to answer in a short period of time. I will do my best.

When you look at prisons and you see, in our case, disproportionate numbers of aboriginal people, that can mean that aboriginal people are perhaps committing more crimes than non-aboriginal people. It also might mean that police are focusing their attention more on aboriginal communities than on non-aboriginal communities. That's certainly the case in a number of jurisdictions, in a number of locations in Canada. It's not that, perhaps, aboriginal people aren't committing crimes. Non-aboriginal people are committing crimes as well, yet those crimes are not being investigated to the same extent.

The other issue, with regard to overrepresentation, relates to the type of sentences people get. For example, I looked recently at the Youth Criminal Justice Act in Ontario. When I looked at people who were charged, dividing aboriginal and non-aboriginal people, non-aboriginal people charged with the same offence as aboriginal people tended to get the non-jail option and aboriginal people tended to get the jail option. So those are some of the issues that arise when we look at overrepresentation.

It's interesting that in Gladue, the Supreme Court of Canada called aboriginal overrepresentation a crisis in the Canadian criminal justice system. The crisis wasn't that aboriginal people were necessarily doing everything wrong. Obviously, people were committing crimes, but the overrepresentation suggests that there's a crisis because the system is unable to find a response other than jail for aboriginal people who are committing crimes. Because jail has such deleterious effects on people--and as you noted, in some cases people are sent thousands of kilometres away--we have to look at that. What's happening is that our reliance on jail as a first option--increasingly a first option--for aboriginal people is making what is a bad situation even worse.

As for your question about a federal prison in Nunavut, I would simply defer to the people of Nunavut to see whether that's something they want in terms of whether they would like the option of having federal funds in justice spent on building a penitentiary or on community programs. My suspicion, having been to Nunavut a number of years ago, is that they would rather their focus not be on the creation of a penitentiary.

[The Vice-Chair, Liberal, Derek Lee]

Thank you.

Go ahead, Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

It's interesting that about 25 U.S. states now have repealed or turned back from the mandatory minimum laws--and you'd think we would have learned from that--because of distortion and costs and high rates of incarceration.

I like the fact that, Ms. Sampson, you brought out the Australian situation of disempowered groups being affected and the studies saying that.

I know that I've looked up a 1998 national law journal, which says that in the States, mandatory minimum sentences are felt most harshly by African Americans, and in that part of the study it even differentiated that African American women are eight times more likely than European American women of being charged and convicted and sentenced under the mandatory minimum laws. Is that the same study you're referring to?

[Fiona Sampson]

That's right. We included that reference.

[Sue Barnes, Liberal, London West, ON]

Okay. Just for Mr. Petit's information, the overrepresentation of blacks is a Canadian problem, according to systemic racism and racial profiling studies by Tanovich and Wortley and the Cole-Gittens report and other reports in this country. We do know, if we've read our background material to prepare for this.

Just out of curiosity, you're seeing inequality as the root of a lot of evil. I'll just have your comment about equality and the Status of Women and how you think that could be relevant here—the mandate of the Status of Women. Maybe I'll let you.... I know your answer on that one. I thought it was interesting.

The brief we haven't seen from you, I would be interested in. We saw from Mr. Rudin that he would go on cruel and unusual punishment--section 12. You would go on section 15--equality. Were there any other aspects of constitutionality, other than just the harshness of the sentence, usually of the third sentence? Are there any other constitutional issues that you pointed out in your brief that we haven't had the benefit of seeing yet?

[Fiona Sampson]

Typically, we would use section 15 also to complement cruel and unusual punishment. The violation of the right to be free from cruel and unusual punishment becomes more acute. And that violation is highlighted when you understand it through the perspective of the section 15 lens.

Mr. Comartin was referencing possible section 1 defences to a section 15 claim or any charter breach. And in the Auton decision of the Supreme Court of Canada, you raised some concerns about section 1 considerations in that case. The Supreme Court of Canada decision in NAPE, the Newfoundland and Labrador Association of Public and Private Employees, is for me the most recent and most interesting Supreme Court declaration on the application of section 1.

In terms of any cost, I'm not sure what the defence would be in terms of mandatory minimum sentence, because mandatory minimums increase costs. But if the federal government were to argue that those cost-saving measures somehow decreased costs, those arguments with the Supreme Court can always be made in situations of acute fiscal crisis.

[Sue Barnes, Liberal, London West, ON]

Ms. Sampson, the minister didn't come to us with this bill saying it was decreasing costs. I heard that for the first time today.

But I did have a question for Mr. Rudin. The heart of this is taking away judicial discretion, and when we start talking about what's relevant on mandatory and whether it's this timeframe or that, I would like your comment on what happens to the individual before the court when you take away judicial discretion.

I also want to have your comment on what happens when you give it to prosecutors, because that's not in the open courtroom as much as the prosecutorial discretion. Is that why you've turned it to your constitutional challenge area? Because that was a unique perspective, and I wanted to hear a bit more about it.

[Jonathan Rudin]

Our concern with regard to the hybrid offences is that it essentially turns the Crown into the judge. If there's a plea or if the person has been convicted, the Crown will determine what defence will be based on, whether the Crown decides to proceed summarily or by indictment. The problem with that is that crowns make those decisions for all sorts of reasons. Often for the right reasons perhaps, but also sometimes for wrong reasons. Normally, without a minimum sentence, it really doesn't matter whether the Crown chooses to go summarily or by indictment because ultimately the judge gets to decide what the sentence will be. The Crown can argue for a higher sentence by indictment, but all options are available to the judge. But this particular legislation would remove that. So the Crowns in some cases, if they want to be sympathetic or give a break to an accused person, will proceed summarily. If they don't want that to happen, they'll proceed by indictment. Of course, the consequences would be quite severe if they proceeded by indictment because it would be a minimum three-year sentence.

As you said, the general difficulty with removing discretion from judges means that consideration of paragraph 718.2(e) in Gladue is removed. It's a very different consideration for a judge: do I want to give this person a minimum sentence of four years, which is the minimum in minimum sentence, or six years? Then it could still apply. But that's not nearly as significant a discussion as to whether the person should be incarcerated at all and whether a conditional sentence might be a better fit.

[Sue Barnes, Liberal, London West, ON]

It's interesting. First of all, I enjoyed your report, and it's important you're here. It's important you're here on every bill, in my opinion.

Sometimes I wish we could have some representatives from the justice system from the north. The problem is that the people I would most like to have here are the ones funded by the justice department themselves, and they're their aboriginal court workers. I've met with them up in Nunavut, in B.C., all over the place. So I think their voice would be a little constrained in this setting, but I know they do a lot of good work.

I was just wondering if you have interaction with some of them from those areas.

[Jonathan Rudin]

It's interesting you ask that question because two weeks ago I was in Ottawa for a meeting of all the aboriginal court work programs in Canada, and one of the things we discussed was the need to try to bring that voice forward. Because we have been to this committee before, I said we'd be happy to go again and bring the voice of the court workers as well. When I came back from that meeting, I discovered the invitation to come to this meeting. So I didn't have a chance to contact all my court worker colleagues. But that's certainly something we will be doing, because we think it's important to bring a national perspective, and as many different perspectives as we can.

So if this is a standing invitation to come to your committee hearings, we're certainly happy to take it up because we think it's very important. But we will endeavour, and we do think it's important, to try to get the voices of the aboriginal court workers across.

[Sue Barnes, Liberal, London West, ON]

I think a lot of people, especially newer people to this committee, are not aware of some of the really good programs, such as the Cree courts, that are out there working. They don't even know what an aboriginal courtroom worker is.

I think when we're doing something as drastic as this, that impacts most of that population, in my opinion, you have to have this understanding. If you don't, I don't know how you can work on this bill and go home and sleep at night. You have to have that understanding, because it's a whole different ballgame.

I stood up on the last bill, talking about the Gladue court system on some of those decisions we made around drugs, specifically because of this population being impacted.

[Jonathan Rudin]

You raise, I think, an important point from our perspective. This is not related to the committee specifically. Within the Department of Justice itself, it does not appear that these considerations get attention when these bills are drafted, and that is a concern. While the Department of Justice has an aboriginal justice directorate and an aboriginal justice strategy, those individuals do not appear to be involved—in fact, I know they're not involved—in these sorts of discussions, and I think that's unfortunate. It's more than unfortunate; it's tragic.

What happens is that these sorts of issues can then only be raised, if they're raised at all, at much later stages. It would be so much better if some of those considerations arose right at the beginning, when people started to think about what a bill is actually going to do. It would be good if the department internally looked at the questions in that way as well.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

[The Vice-Chair, Liberal, Derek Lee]

Well, that's great. I think we are ready to wrap up.

On behalf of the chair, I want to thank the witnesses. And I thank the committee staff for arranging this day of hearings in Toronto.

Seeing no further business, we will stand adjourned until Monday, November 27, in the afternoon.