Justice Committee on Dec. 4th, 2006

[The Chair, Conservative, Art Hanger]

I know Statistics Canada has examined this particular point and has not come up with any conclusion, because there are so few cases where the mandatory minimum has been applied. It's one of the first things dealt away by the prosecution to get a quick guilty plea. So any kind of analysis or conclusion, I would have to suggest, is probably going to be erroneous anyway.

[Prof. Jean-Paul Brodeur]

Right. Studies on deterrents or the effect of sentencing are some sort of wasteland. They tend to cancel each other out. You have one that says it's going this way, and another one for that.

The point I want to make is that if that is the situation, on the basis of research results that are uncertain and cancelling themselves out, you do not increase the potential harm that will be done to the lives of people through incarcerating them. I think that's a very shaky basis. From uncertainty, nothing follows, and certainly not punishment.

[The Chair, Conservative, Art Hanger]

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you to all the witnesses.

Professor Brodeur, on the remarks you made just now that some of the studies cancel each other out, I've seen studies that say there is a deterrent effect, and other people say there is no deterrent effect. Have there been any studies that you know of, or that any of our witnesses know about, that speak to the effect on crime when high-risk offenders and recidivists, people who are continually committing crimes, people with long criminal records, are behind bars, when you take those people out of society?

The reason I ask is that we did hear testimony from the chief of police from Toronto about the effect in some communities when those who were committing the crime were taken off the street. In one way or another, they were off the street for some time, and he found there was a corresponding drop in the violent crime rates there. So quite apart from the deterrent effect, we could argue back and forth, if I'm at risk of getting a one-year sentence versus a 10-year sentence, whether I would be more or less likely to commit a crime. What about when we take a high-risk offender out of society and put that person into prison?

[Prof. Jean-Paul Brodeur]

It has been studied. There's some sort of Nobel prize in criminology that has been awarded for two years. Professor Alfred Blumstein was awarded this prize. He actually studied the phenomenon you are mentioning.

What you're saying is something like, let's move out of deterrence rehabilitation and talk about incapacitation; that's what you're saying. If you incapacitate or neutralize these people by sending them to jail for a long period of time, does it have an effect? Professor Blumstein found two things. It has a modest effect; however, the price you pay to have this effect is that you have to do what the U.S. is doing right now, which is mass incarceration.

The sentencing process is an instrument that is not very precise. In order to have these career criminals—these highly dangerous offenders—in prison for a long period of time, you have to pay the price that you're going to cast a wide net and catch all kinds of fish. Of course, you will eventually catch some highly productive criminals, but I want to remind you that mass incarceration in the U.S. has produced one of the highest rates of incarceration known to the western world. It is probably, as of now, at least six or seven times the rate of incarceration in Canada.

So to answer your question, yes, that kind of effect has been spotted. It is modest, but the price to obtain the effect is mass incarceration, and I'm not sure that this is in line with our Canadian values.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Professor, and I appreciate that point. That's certainly not what we are proposing, any mass incarceration.

That is precisely why this bill, Bill C-10, is narrowly targeted at those involved in gang activities and using guns to commit crimes. Not wanting to cast the net too wide, we're focusing very much on what Canadians are telling us are the most serious offences.

I've heard quite a bit of talk about this discretion of judges, but I'd like some comment from the Canadian Bar Association or others. For many of the offences we've listed, and I'll talk about some of the primary offences where it's an escalating five, seven, or ten years, what we're dealing with in the second and third cases, of seven and ten years, is someone who has used a firearm in attempted murder, discharged a firearm with intent, committed sexual or aggravated assault, and so on—what we've found to be the most serious offences—and has done it not only once but twice.

Many people feel that when there's been a recidivist activity, obviously we have to bring in safeguards and start to err on the side of protection of society. When someone has done this once, that's one thing. When they're out and have done it again, it's quite another, in the public's view.

Just so I know what we're really talking about, isn't it the case with many of these offences that there's already a four-year mandatory minimum? What Bill C-10 does, instead of making it a four-year mandatory minimum, is make it a five-year mandatory minimum. We're talking about taking discretion away from judges.

It's been presented, I know, by the opposition—in some cases very alarmingly—as that we're narrowing the discretion of judges. But what we're doing with this bill is saying that on these most serious offences, on a first offence, instead of four years, it's five. Is that not the case?

[Joshua Weinstein]

The national criminal justice section's position when the four-year minimums came in was that we opposed them.

[Rob Moore, Conservative, Fundy Royal, NB]

I appreciate that, and we realize that.

[Joshua Weinstein]

Then, going to the five-seven-ten rule, you have these sorts of calculations, in our view: that there is not much use in appearing in front of the judge, that the data could be input into a computer and it would spit out the results. But that's not our system.

In the example I gave, you have a situation where a farmer shoots down a crop-duster and is facing the mandatory minimum of four years. If that is the second offence, we're going to come up with a calculation. What I am saying is that if we have faith in the judiciary--and our section and the CBA do have faith in the judiciary--there is nothing stopping the judiciary from imposing a seven-year sentence.

I'll give you one example, in a case where there are no mandatory minimums: an assault proceeding by indictment, a very real case called Ganton, out of Manitoba. It was an attack on a bus driver. What the Crown did was present all the statistics of that particular bus route, showing it was the second most violent in Winnipeg, and aside from that, showing that in the last five years there had been an escalation in attacks on bus drivers. With all of that information put before the courts, and with an accused with a related but relatively minor record, the accused received 26 months on a simple assault, a mischief, and a breach.

[Rob Moore, Conservative, Fundy Royal, NB]

That's fine, and I appreciate that sometimes judges do sentence what people feel is appropriate. Many times it's appropriate.

But I feel there has to be an acknowledgement that this is not entirely new. Our Criminal Code contains mandatory minimums and it contains maximums, both of which limit the discretion of a judge somewhat. The argument has to go both ways, I would think. If one is against all minimums, presumably we'd be against all maximums too, because those also limit the discretion of a judge.

But I guess what this bill does—and I'll use your example—is that right now if you shoot down a crop-duster, the mandatory minimum, if you're charged under some offences, would be four years. Under our bill, if you shoot down a crop-duster, it would be five years, and all the same principles apply regarding any bargaining that could take place with the prosecutor.

Now, if you show yourself to be a recidivist, either after getting a lesser charge or serving your time, and you are back in your field and shoot down another crop-duster, what society is saying, and what we're saying, is that you've shown you're dangerous to society. We want to limit that discretion; we want to send a message. We want to ensure that the public is protected. We want to take dangerous repeat offenders off the streets. That's what this bill does.

Also there are some new things: robbery where a firearm is stolen, and break and enter where a firearm is stolen. We feel those are new provisions that need to be in place, because that's a real problem too.

Thank you.

[The Chair, Conservative, Art Hanger]

Ms. Joncas, you had a comment to make.

[Lucie Joncas]

I wanted to answer the first question, because you put it to all the witnesses.

If there is a repeat offender and there are serious crimes being committed, the Criminal Code already has provisions regarding dangerous and long-term offenders. So I believe that if the Crown has reason to believe society is at risk, they will make that application, and it's working fairly well. So I don't see why minimums in another way would meet a need that is actually in the society.

[The Chair, Conservative, Art Hanger]

Mr. Brodeur, do you have a further comment?

[Prof. Jean-Paul Brodeur]

Yes, very briefly. It's this idea that maximum sentences, like minimum sentences, are constraining the discretion of judges. At least this is something that we know a lot about and have studied in the Canadian Sentencing Commission.

Even today, the average sentence in Canada is less than three years, all over the board. My point here is that the maximum sentence is given by judges in much less than 1% of cases. So this idea that the maximum is as constraining as minimum doesn't really fly.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brodeur.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you all for coming.

Mr. Brodeur, you talked a little earlier about an effect of incarceration. But if a 20-year-old is put in jail for five or seven years—a couple of extra years, because of this bill—of course we'll be safer because they can't do anything. But then there are the negative effects that many witnesses, even the chief of police, told us about: they learn more crime in jail, they become less social, fit in.... Then they all get out. As you said, the average is less than three years, so they're going to be out for a long time and more dangerous.

If you take it over their entire life cycle, are we actually safer?

[Prof. Jean-Paul Brodeur]

Very briefly, when I was with the Sentencing Commission, we commissioned some research on the theme of the prison being the university of crime. We asked our researchers to give us quotes in official documents from the birth of Canada up until now.

You can look at the report. There is one quote to this effect about every three years, and it goes all the way back to the invention of prison. So I would say the most recurrent leitmotif in all the literature of incarceration is that yes, it hardens criminals and teaches them new tricks.

The silent system, which was first envisaged by the Americans, was for prisoners not to talk to each other, so that they would not teach each other new tricks. This is the commonplace in the literature on incarceration.

[Larry Bagnell, Liberal, Yukon, YT]

Ms. Joncas, you said that you found that judges made proportional sentences. You didn't see that they were making bad sentences. I asked the justice minister the same question, and he said that he thought judges were making good sentences. So why would we need this law? If we've left all the maximums there, they could make sentences just as strict if this law didn't exist.

I assume sentences could be appealed, and I assume judges don't like to have their decisions appealed, so why would we need this law? If you're saying they make good sentences, and the justice minister said they make good sentences, and they can still give the maximum, why would we need this law?

[Lucie Joncas]

Well, you've got my point exactly. I believe this law is not necessary. Judges are giving just sentences, and the appeal process is there for anybody who wants to take it up. If the Crown believes the sentence is not harsh enough, they will appeal, and they do. I don't believe the cases that have been put forward to justify this type of legislation are cases that have withstood an appeal, and I think that's an important point.

[Larry Bagnell, Liberal, Yukon, YT]

I know you represent defence lawyers, but I'd just like to ask you and the bar if you know the position, in general, of prosecuting lawyers?

[Joshua Weinstein]

Obviously the section goes to both prosecutors and defence. I can speak from that experience, from the experience of being a defence lawyer. The way the system is—and when I say “is”. I mean it's in terms of where a judge exercises discretion and is entitled to impose the appropriate sentence—it's our submission that, while not necessarily perfect, it works, and it works because there is that ability to appeal the sentence.

That sentence in the case I described of the attack on the bus driver was viewed by many as a very harsh sentence: 26 months for an assault on a bus driver. It was upheld by the Manitoba Court of Appeal. So you have crowns who will have the ability to go forward with a set of circumstances and their statistics and their media information, present it all in front of a judge, and then the judge will be able to exercise discretion and impose a lengthy sentence, where appropriate, without the use of any mandatory minimum in that type of situation.

[Larry Bagnell, Liberal, Yukon, YT]

So crown prosecutors aren't asking for this bill, in general?

[Joshua Weinstein]

I don't speak on behalf of a crown attorneys association. All I can say is that in consulting with our section--both crown prosecutors and defence lawyers--it is the view that mandatory minimums should be opposed.

[Lucie Joncas]

If I may, on the same question, I can refer the committee to the submissions of the Quebec Bar Association. The Quebec Bar made submissions on Bill C-9 about restricting jail time to be served within the community. I believe the legislative committee of the Quebec Bar represents both defence and Crown.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Lemay.