Justice Committee on Dec. 4th, 2006

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

Thank you for coming. This is very interesting. Needless to say, I appreciated you statements. I have practised criminal law as a defence attorney for 25 years and I oppose this bill. I think that my position is clear.

As I have practised criminal law for a long time, I carefully read the brief from the Canadian Bar Association. I had the same question and I want you to explain something to me. Perhaps, Ms. Joncas, you could confirm it for me as well.

As we analyze Bill C-10, it would almost be fair to say that it contains some heresies. In fact, I do not know what came over the minister or his assistants when they drafted this bill, but if we knew, it might help us to understand this. I would like some clarifications on section 1, which amends section 84 of the Criminal Code. If I understand correctly, time spent in custody awaiting trial would not be taken into account for repeat offenders. I do not know whether you are following me.

As you studied this very closely, could you tell me whether I am right in saying that one must be entirely disconnected from reality to take no account of the time spent in custody awaiting trial? I refer specifically to section 1 of the bill, which amends section 84 of the Criminal Code.

I would like to hear what you have to say about this. I would also like to hear what you have to say about time spent in custody pursuant to subsection 719(3) of the Criminal Code and of course about the Supreme Court's Wust decision, whereby the time spent in custody must be taken into account. The legislator has decided to go against a decision made by the Supreme Court! I would like to hear what you have to say about this because to me, it seems entirely divorced from reality.

I would like to hear your opinion on this, Ms. Joncas or Mr. Weinstein; I do not know which one of you two has read this attentively.

[Lucie Joncas]

We read all the provisions very attentively before coming here, but in fact—and we mentioned this during our presentations—that there will be more instances of preventive detention with this kind of project. This is absolutely certain.

The Supreme Court made a decision, in the Wust case, regarding preventive detention. Moreover, the Quebec Court of Appeal also made a decision in the R. c. Beauchamp case, whose leave to appeal was refused by the Supreme Court.

Preventive detention is at the judge's discretion, but nevertheless, the conditions of preventive detention are generally much more severe than those of detention after sentencing, and we must take this into account. We must certainly deal with this factor. And as there will be more challenges, there could well be, moreover, more lengthy periods of preventive detention.

[Joshua Weinstein]

The view of our section, in reading through it.... I just don't see that the bill addresses the issue of pre-trial detention at all. I don't see that there are provisions specifically excluding that calculation. It will remain to be seen, if this bill were to pass, what it would look like, but as it stands now, as I look at it, it doesn't seem to address that time and how it's to be taken into account.

Really, some of the comments that were made in terms of the way it would function, about the break in time, were just outlining what that essentially would look like and how it would function. We really make no other comment than that. In looking at it, I don't see how it addresses the issue of pre-trial detention. We would ask that obviously, if it were to be calculated, it be calculated in accordance with the charter and in accordance with the decision in Wust.

[The Chair, Conservative, Art Hanger]

Monsieur Lemay, do you have another question?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, that's all right.

[The Chair, Conservative, Art Hanger]

Thank you.

We'll go to Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thanks for being here.

I have a couple of questions. Number one, I'd like to speak to the Mennonite ladies who are here. Thanks for coming.

I don't know if you've heard of Linden, Alberta, and Didsbury, Alberta. There's a huge community of Mennonites in that area, and that's the area I represent. I've played a lot of baseball against those guys. I could never beat them. They were always a little better than we were. I don't know how they had all that time to practise in the middle of their farming, but they were tough to beat.

Talking to these people, the very people I talk to, we talk about these kinds of issues and these kinds of things that we intend to do. I've asked them what we should do with a person who does this with a gun. Do you know what the response is? “Well, you have jails. That's what they're for. That's where they belong.”

They also believe heavily in going into the penitentiaries and doing the very fine work they do in rehabilitation, and I can appreciate that, because I went there with them on a couple of occasions before I got into politics.

So I don't really understand why you people would come here and oppose this, when I can guarantee you that I know a whole group in my riding who would support it heavily. That would be a question. I'll give you a minute to think about it, because now I'm going to go to the Bar Association.

Shooting down a crop-duster, I thought, was a very poor example of what we're getting at here. Number one, I know that there's self-defence, but I can't really find any root cause of anything that would cause a person to pick up a gun and shoot a crop-duster down. You shot a crop-duster down? You took a gun out and shot a plane? And you think you're justified in doing that because he flew too close to your house?

In my riding I've seen people who accidentally got on private land--who thought they were on crown land hunting--and the owner came out and shot them. Are you justified in shooting somebody who got on your land? Maybe they were trespassing, but maybe they unintentionally trespassed. Nevertheless, do you think you should pull out a gun and shoot them? You can find examples like that, and I just can't find any root cause or any excuse for taking up a gun and trying to take someone's life, other than self-defence.

As far as the Bar Association goes, I'm really confused about you people, because I have lots of lawyers in my riding who seem to think that this bill is right on, that it's what we should be doing. I've even talked to two lawyers, believe it or not, who are Liberals who believe this is what we need to be doing. And you say you're representing all the lawyers in the country? Well, I don't think you are.

And I want to emphasize this. We had the police come here, and I guarantee you, with their presentation to the committee, that the police out there, everywhere, are supporting their position at this table. Why is that? Other groups of people have come here representing groups like the police, and the support is there. I can guarantee you that coming here against this legislation is not fully supported by your people. That doesn't make sense to me.

The last question will be on the New York City experience. Are you familiar with that, with the “broken window” theory and what that has caused? They hired a whole bunch more police and built more jails to try to curb crime, and you went to jail regardless of the offence. I understand that it's one of the safest cities to be in now.

If you have any comment on that, I'd like to hear it. Thank you.

[The Chair, Conservative, Art Hanger]

Would the Mennonite Central Committee please respond?

[Eileen Henderson]

We certainly do not represent the entire Mennonite constituency, but we represent some of the Mennonite constituency who would say that longer, harsher sentences remove people from community, and that makes it much more difficult to return people, and that escalates risks for community safety.

At the same time, we also work from a restorative justice approach that says that crime is the breaking of relationships. How do we engage communities and victims and offenders in repairing the harm of broken relationships? It's often easier to do time than it is to look the person in the face and come back out to the community and deal with the harm that has been caused, in the community sense, returning to families, returning to friends, returning to relationships that people in very many ways have horrendously destroyed.

[Myron Thompson, Conservative, Wild Rose, AB]

If I may interject here, I want you to know that I appreciate the work in the prisons and when they are released. That work must continue with the victims. I agree with all that, but I also agree with making sure the penalty is provided.

[Eileen Henderson]

Thank you.

[The Chair, Conservative, Art Hanger]

The Canadian Bar Association, what say you?

[Joshua Weinstein]

First, I'll address the issue of the example that came up with the crop-duster, and then I'll turn things over to Ms. Thomson to address who we're representing today.

I couldn't agree with you more in terms of there being no excuse for that individual who shot down the crop-duster. He was my client. There was no excuse and there was no defence. Therefore, he pleaded guilty. But he pleaded guilty in a framework that both the Crown and defence agreed upon, which would provide for a balanced sentence. I agree that there was no justification, and that's why a guilty plea was entered to this type of offence.

That example is a real example. It illustrates exactly the flexibility that is required in the system for a judge to address an appropriate sentence. It could not have been done but for the crown attorneys exercising their discretion, and it could have been done in the absence of mandatory minimum penalties, with a judge exercising his or her discretion. What you would have had is, at the end of the day, an individual convicted of discharging a firearm with intent, rather than careless use, which is a lesser offence.

[The Chair, Conservative, Art Hanger]

Ms. Thomson.

[Tamra Thomson]

In terms of how CBA policy is developed, it is through democratic processes, representative processes. It does not claim to be unanimous, but it is representative.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Mr. Lee.

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

I have a query for Professor Brodeur.

I'm searching for good reasons, really cogent reasons, to proceed with legislation of this type. To be honest, I'm having some difficulty. There is a lot of conflicting opinion.

If I speak to the police, they say we have to get “these guys” off the street—whoever “these guys” are. I'm pretty sure they're not referring to everybody in the criminal system but whoever they've brought in on charges. They want to get those guys off the streets so they won't have to deal with them next week and next year and the year after. That's a natural position they have.

If I speak to the public generally, they'd like to see more denunciation built into a sentence. They like that. They would like to see more deterrence built into a sentence. They like that.

I don't see a lot of deterrence, based on the opinion we're getting from our experts. I do understand the denunciation piece. If we told our public that we were going to put everybody in jail for 10 years minimum for anything in the Criminal Code, there would probably be some members of the public who would say yes, that will do it, that's denunciation; they will get the message. But I know it won't make much of a difference in our criminal law system. It might even hurt it.

Can you help me? Can you help me on the denunciation message? Is there any component of this legislation that you think would assist in both the political message of denunciation to the public and the denunciation message to the existing or potential criminal?

[Prof. Jean-Paul Brodeur]

Very briefly on denunciation, my number one point, which relates to things that have been said before, is that a lot can be done with the law as it exists. For instance, cop killers and people who kill crop-dusters wouldn't get away with things as the law presently stands. But with regard to denunciation, my point would be this. if you go through minimum sentences you may have a denunciation effect on a situation; however, the question is, what is it you want to denounce? Do you want to denounce killing people, or do you want to denounce a killer in particular circumstances?

If you're into mandatory or automatic mechanical justice, whatever denunciation effect you will have in denouncing a situation will eventually be lost. And when you're going to denounce particular and at times heinous offenders, if you impose a mandatory minimum, the effect of denouncing this particular person is lost. People will say he's just part of a minimum sentencing scheme. Basically, he is not denounced in these particular circumstances; I mean, he happens to fall under a mandatory sentencing scheme.

My point here is, what is it you want to denounce? Do you want to have one shot at denouncing the use of a firearm, or do you want to have a real repeated effect, denouncing people who use firearms to kill people? Every time a judge does it, the second thing is probably more important than the first one.

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

That's an important distinction, and I think the government is keen on getting a political message out. They may also care about item two—your second alternative—in substance. The second paradigm you mentioned is much more important, because the political messaging will only take us to the next election, and there might be an echo effect beyond that.

On another complaint, I'd like to know whether you think this bill addresses what is referred to sometimes as the revolving door of the criminal justice system. I think a lot of people confuse bail with the revolving door. Of course, before you get convicted of an offence, the door is a revolving door. You're in and out of court two or three times perhaps, with several days of trial. There's a huge revolving door there, and you're seen on the street as an accused.

Could you assist me? Do you see anything in this bill that would allow us, as political representatives, to show Canadians that this bill will address the revolving door?

[Prof. Jean-Paul Brodeur]

The answer is no. I think we should look at a prison as being like a pressure cooker. If you put a lot of things in it to be cooked, the pressure mounts. Either you're going to decrease the pressure through the revolving door and through sending people out on conditional release and so forth, or you're going to build new prisons.

Let me put this point this way. Absolutely nobody is for mass incarceration, but the problem is, how do you get into mass incarceration? The answer is that you get there through a slippery slope. At some point you end up having too many prisons, and you end up making choices between schools and prisons.

Basically this bill is a front-door approach that does not have a back-door strategy. You are going to send people in, but if the prisons are too full, what's going to happen? As has always been done in Canada, people will devise a situation to decrease the pressure, to avoid riots and so on. We know these strategies quite well.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brodeur. It sounds like we should have a little more discipline in our prisons.

Mr. Petit.

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

Good afternoon, Mr. Brodeur, Ms. Thompson, Mr. Weinstein, Ms. Henderson, Ms. Elgersma, and Ms. Joncas.

Mr. Brodeur, this question is for you. First of all, unlike the people opposite, I am not yet used to being an MP, as I have only been an MP for a short while, but I do like to know who I am dealing with. Often, when working on a file, I try to find out who you are, etc. I would have appreciated knowing that Ms. Joncas had already represented Mr. Guité.

I would also have appreciated—Mr. Ménard did not tell me this either—knowing that in Mr. Ménard's riding, a young man named Sébastien had been the victim of a bomb planted by the Hells Angels. I would have appreciated knowing that Ms. Joncas had in the past represented the Hells Angels during a mega-trial. It is important that I know these things. As a parliamentarian, I must be above partisan interests, and try to see whether the bill we are studying is good and if I can support it, even if I am a member of the governing party.

[Réal Ménard, Bloc, Hochelaga, QC]

On a point of order, Mr. Chairman. With your permission, I think that—

[The Chair, Conservative, Art Hanger]

I'm sorry, Mr. Ménard. Go ahead.

[Réal Ménard, Bloc, Hochelaga, QC]

I apologize for interrupting my colleague, but when we are working together, we cannot impugn people's motives for ethical reasons. Of course people were killed in my constituency, that is what got me involved in the anti-gang legislation. What connection do you make between the fact that people have a background representing—