Justice Committee on March 25th, 2009

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

Okay.

Those are all the questions I had. Thank you.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Comartin.

We'll move on to Mr. Norlock. You have seven minutes.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much for coming, gentlemen.

I guess, with my background, I could give you a whole whack of anecdotal evidence or anecdotal stories or references related to some of the questions I'm going to ask. I'm going to mention a particular judge, because I think he had it right. Unfortunately, in other jurisdictions I think they have it wrong.

Just up the creek here, in Pembroke, Ontario, I had the privilege of working with Judge Russell Merredew, who did a study in his court of the number of charges. The largest number of charges were for breaches of probation. His statement was that the court has only one power, and that's the power of its orders. That's all it has. When people disrespect or don't adhere to the orders of the court, basically you have anarchy. So what he did in his court was that for the second charge of breach of probation, he had a specific number for incarceration, and every defence counsel knew what that number was. A third offence had another number. The fourth offence had another number. And guess what happened to the number of charges for breach of probation? It went down significantly.

In other courts I had the privilege of working in, with the acquiesce of the judiciary, the breaches of probation, under negotiation with the crown and defence, were the first charges to be disposed of. Judge Merredew didn't permit that in his court. I'm using his name. I suspect he's retired now. I just wanted to throw that out.

This graph would disturb any Canadian. Now, I'm no longer in the other field of work, where I could say some things and almost get away with them. I can't say some things here, because my political adversaries would like to haul me out in the court of public view and nail me to the wall. But let me just say this, and then I'm going to ask you for your comment. Obviously, you gentlemen--I'm referring specifically to Mr. Park and Mr. Rezac--did your homework before you came here. You made some presentations to us. This graph indicates something serious.

When we, as a government, tried to begin to bring in people to the judiciary who we thought best represented....

When we first became police officers, during our orientation we were told that the basic model is common law and that the average, common person, the average man and woman out in society, would be able to not only comprehend the law that governs us but comprehend and accept and give acquiescence to the administration of that law in terms of enforcement and the execution of justice.

In your humble opinion, do you believe that Canadians today understand the law as it is and the reasoning of the judges and the judiciary who are paid to represent the common man and render sentences upon people who commit antisocial behaviour? I'm using the touchy-feely words.

[Darcy Rezac]

Thank you for that.

Mr. Chairman, there is a disconnect. We've spoken to judges, and I think there's a disconnect between what judges perceive and their rationale for making those decisions. They will go back to the law, and case law, and precedent and so on.

Canadians expect something different. In our understanding, from a recent study that Dave can perhaps talk to, I think 74% of British Columbians—though my numbers might be off by two or three percentage points—do not think the sentences being rendered reflect the views of Canadians. Our own informal, non-scientific poll on our website, www.boardoftrade.com, shows that of the people who have answered that poll, about 77% think that sentences almost never or never reflect the views of average Canadians.

I had a discussion with British Columbia's chief judge, Hugh Stanfield, on The Bill Good Show on CKNW recently, for a couple of minutes. The question I asked him was, why are sentences in British Columbia so much more lenient than in the rest of the country? The second question was, how can you justify decreasing sentences for chronic offenders in the city of Vancouver given that graph—which I just mentioned here? His response was to refer to the recently commissioned provincial report by Doob and Webster, which shows in aggregate that average sentences in British Columbia were about the same as those in the rest of the country. But my feeling is that most Canadians think that sentencing in the country is an issue and a problem. That aside, his response was, well, it's a common misperception that sentences are lesser or more lenient in British Columbia. I asked if he was referring to the Doob and Webster report. He said, yes, and I referred him to page 64—which I believe is in the handout—showing that 21% of drug traffickers in British Columbia get more than six months in jail, whereas the average is 58% in the rest of the country.

So in aggregate our sentences might be the same as the rest of the country, according to Doob and Webster, but for the bad guys, the drug traffickers, we're far more lenient, and this graph demonstrates that.

For him to go on radio and tell the public that in fact we're no different—which is a myth—and then to defend the system and try to defend some of these lenient sentences, we think is offensive, and we think it can be misleading to the public as well. So we challenged him on that. You must have a more fulsome discussion with him on that, as it was only a short clip on the radio.

We're not finished with that. I think that disconnect between judges and the public's expectations is a serious issue in Canada.

[Dave Park]

Just as a quick addition to that, I would add that this same study quoted 69% of Canadians as saying that sentences are too lenient in general. The authors go on to explain that if you really dig into it, maybe it's not the case. But I believe that the public in British Columbia and in Canada as a whole are not happy with what they see happening in the courts. In British Columbia, I believe we'd find that this is actually bringing the administration of justice into disrepute.

[Darcy Rezac]

There is no question that's the view of the Vancouver Board of Trade. The mayor of Surrey, who I hope will appear before this committee when it travels west, or before then, recently said she's in favour of electing judges. We're not there yet, but what she's saying I think is what we feel, that there needs to be a higher level of accountability.

The only accountability they can describe to us right now is the percentage of their decisions that are overturned on appeal. Well, we don't think that's a good enough connect with the average Canadian. There has to be some better method of plugging into what the expectations are. Ladies and gentlemen, I think that should be done through you, our elected MPs, and from what your constituents tell you. I really do.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to start our second round. Who is going for the Liberals?

Monsieur LeBlanc, you have five minutes.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you very much, Mr. Chair.

I would like to welcome the witnesses and thank them for their comments.

I have a question for Assistant Commissioner Cabana. You have addressed the issue of disclosure and the duty to disclose pursuant to Stinchcombe. The Attorney General of British Columbia told us he shares your opinion on this subject: we must find a way not to restrict, but rather to simplify or expedite, this requirement.

I'd like to hear the assistant commissioner tell us how he thinks we could expedite or improve the disclosure requirements but not run afoul of the charter rights given in the Stinchcombe case. Surely you're not suggesting we not disclose to an accused person evidence against him or her. Obviously, you're looking at a way to make it less cumbersome on the administration of justice, occupy less time and fewer resources, which would reduce delays.

Other than providing documents digitally, for example, are there other ways we could streamline disclosure and not, in your opinion, violate the charter rights of the accused?

Also, Mr. Cabana, I'm wondering if a lot of this isn't an issue of a lack of resources in some jurisdictions, rather than standardization. If some jurisdictions want it in paper form, others will accept it digitally. Some may have the technology, others don't. A lot of that can be solved by providing adequate resources, could it not, if the Government of Canada, in partnership with provincial attorneys general, found a way to better share the burden that these decisions impose upon the administration of justice?

[A/Commr Mike Cabana]

Thank you, Mr. LeBlanc, Mr. Chairman.

Thank you for your very interesting question. There are actually a number of different approaches that I can think of right now, but of course they would require further examination, and as I'm sure you are aware, there are a lot of people right now across the country at different levels within law enforcement and within the judiciary who are looking at some of those very issues.

I think you touched on some of them, actually—standardizing the approach to disclosure, but also the definition of relevance. We see a significant disparity across the country, depending on the jurisdiction, in what is deemed to be relevant information. If we could come to terms on what should be deemed relevant to the defence and it falls within the Stinchcombe requirement, that in itself would serve to resolve a lot of the issues we're facing right now.

Also, if you go to the Stinchcombe decision, there's a recognition in there that disclosure is an ongoing process. In a majority of the jurisdictions now an expectation has been created that disclosure will be provided upon charges being laid. At the tail end of any investigation this creates a huge crunch in terms of resources to be able to prepare and package everything to make sure nothing is left to the side, that the disclosure is complete. It should be recognized that it is an ongoing process that starts from the moment a person is charged and will go on for a period of time.

As Mr. Comartin mentioned, there are different technologies out there. Most law enforcement agencies across the country are using those technologies. There would be a great benefit in standardizing how that technology is being used. I think that goes to some of the reluctance from the judiciaries that we've seen over the years. As with anything new, when law enforcement and prosecutors started using electronic disclosure, it was not prepared the way it should have been. There's a learning process.

For the most part, over the last ten years we have gone through that learning process, and it would be greatly beneficial to standardize how electronic disclosure should be made and how the judiciaries and the defence should expect disclosure to be received.

This may be perceived as a plea for additional resources, but there has to be a recognition that neither law enforcement nor the crown has ever received additional resources in order to facilitate disclosure. I've been in law enforcement for almost 30 years, and disclosures of 20 years ago were quite different. There have never been additional resources provided in order to facilitate that.

I agree with you, part of the issue is the lack of resources to facilitate this in a timely fashion.

I also think of coming to terms with or defining the role of the crown and the role of police in terms of who is responsible for assuming the cost of disclosure and to what extent. Again, there is some disparity across the country.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Cabana.

We'll move on to Monsieur Lemay. You have five minutes.

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

First of all, I would like to thank our guests for being here today.

I do not agree with Vancouver's position, though it is a magnificent city. Appointing one person as a judge rather than another because he promises to give harsher sentences makes no sense.

Having said that, have you already carried out a study? I read your study on repeat offenders, but have you already looked at parole services? The problem is not when someone goes into prison but rather when they come out. Have you seen that prisoners are coming out too quickly, that they are not doing their time? It is not right that a prisoner should be freed after 3 months when a judge sentenced them to 22 months.

Stop asking for longer sentences; that is not the problem. Stop asking for direction from judges. Ask the government to change the parole laws. Prisoners are freed too quickly. If you do not admit to that, we are off to a bad start, particularly as far as organized crime is concerned.

White-collar criminals or leaders get out of jail. We never see them. They are not the ones who hit people with baseball bats; they tell someone else to do it for them. When they go into jail, they behave like gentlemen and they are quickly released.

Ms. Sutton, you will certainly come back to the committee. I would like to get more information about parole. What does one-third of the sentence mean? Are there certain things people have to do to get a third, a half, or a quarter of the sentence? It has gotten to the point where we release people after one-sixth of the sentence. I know; I was a criminal lawyer for 30 years. My clients who had been sentenced to 32 months could not care less, because, 4 months later, they were back out on the street. In our jargon, we call a first sentence a "bit", which means that it is not serious.

I would like the National Parole Board to provide us with a study on this issue, which would meet the needs of our friends from Vancouver and probably those of our colleagues opposite. What criteria do you use to establish whether or not a person should be freed? For example, if a person has been sentenced to 40 months in jail, how do you assess whether or not they should be freed?

[Jean Sutton]

There are actually two ways an individual can leave prison or receive libération conditionelle--parole--at one-third.

First of all, if he is a first-time federal offender, and non-violent, which is defined as not serving an offence under schedule I, which tends to be offences against a person, or who has not been convicted of a serious drug offence, which is schedule II, which again is defined, then he will be considered for parole. Unless the board can determine the likelihood that he or she will commit an offence of violence prior to the end of the sentence, we must direct, so there is little discretion within the law for those cases.

The alternative way applies to someone who has served several sentences, served more than one sentence, or is coming in for a first sentence that is clearly for violence or for a serious drug offence. That person is considered under the regular criteria for parole. The very first element within those criteria is protection of the public.

We look at a number of elements when determining the protection of the public, including the likelihood of reoffending if released. We look at what has brought him into prison, we look at what interventions have taken place, and then we look at what the plan is on release. In terms of the elements that are considered in each of those, the issue of interest here today is organized crime. Organized crime fits in every aspect of that--or gangs, if we want to use that language. Prior to that, we're looking at what evidence has come forward, and it is very clear that the board, as an administrative tribunal, does not need to have a conviction; if there is evidence or information coming forward that identifies that this individual has been involved in some organized activity, we can weigh that into our decision, unlike the court.

While he's incarcerated, we're also looking at information coming forward from Correctional Services or the police for further engagement or continued engagement within that same milieu. Then again, on leaving, who will he be associating with? Where will he be going? Are other associates who have been part of that gang in the same vicinity or the same halfway house, if he's going to a halfway house? It is clear from the evidence-based research that associates are a major consideration when looking at reoffending, and that is a major element within the board's decision-making.

[The Chair, Conservative, Ed Fast]

Thank you, Ms. Sutton.

We're going to move to Mr. Rathgeber now.

[Darcy Rezac]

Could I just clarify something?

[The Chair, Conservative, Ed Fast]

Yes, but please do it quickly.

[Darcy Rezac]

Thank you very much, Mr. Chairman.

Let me clarify that it is not the Vancouver Board of Trade's position that we should elect judges. I was simply reporting that the mayor of Surrey suggested that recently. I happen to have some sympathy for her sentiments. It's not that I agree that we should elect judges, but we agree that there should be a higher level of accountability for judges. We agree with you completely on your concerns about parole after one-third.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Rathgeber, you have five minutes.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair, and thank you to all the witnesses for their presentations. I must say that I've learned some things, and I've agreed with much of what I've heard this afternoon.

Mr. Cabana, I'm fascinated by your concerns regarding lawful access to advancing technologies. All members of Parliament are quite technologically dependent on the BlackBerry, and I understand that it's probably equally useful to those who are engaged in organized crime and other nefarious activities.

After reading your report, and following up on what you said in your oral comments, which was that communication carriers are not required to provide access technology, I'm wondering if you could help me with other jurisdictions. Given the role that I suspect these devices play in communication and in making deals in organized crime, what is the state of the law in other jurisdictions? I'm thinking of the United States. Can you help? How does this work with respect to patents and software licensing agreements? What happens outside our borders?

[A/Commr Mike Cabana]

Probably not much. I know there are similar discussions that are ongoing between U.S. law enforcement agencies and some of the industry leaders, including RIM, for example, over access to intercept technology. I can confirm they don't have the technology. I assume they are facing the same challenges we're facing here in Canada. But in terms of licences, agreements, or anything like that, I'm afraid I can't help you.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

You stated that because communication carriers are not required to provide access to technology—I think I heard you correctly—it was left up to law enforcement to attempt to intercept, presumably by getting a warrant and then intercepting. With the very attempts that law enforcement has to try to intercept, does that not raise issues of patent and software agreements? Do those become issues?

[A/Commr Mike Cabana]

I'm afraid I can't answer that question. I don't know.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Okay, thank you.

Individuals from the Vancouver Board of Trade indicated that they support the government's announcement with respect to dealing with the two-for-one pre-sentence custody.

Mr. Cabana, I was wondering if you had a position on that policy announcement that was made earlier today--the two-for-one pre-trial custody issue.

[A/Commr Mike Cabana]

Actually, CACP and the Canadian law enforcement community do not support two-for-one pre-custody time.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you.

Regarding the Vancouver Board of Trade, I have a couple of questions, if I have time, Mr. Chair.

The Olympics, of course, are less than a year away. I'm wondering if the Board of Trade knows if there is a comprehensive plan between the police and border security to provide for the safety and security of both the athletes and the many visitors who are anticipated to come into Vancouver in light of the recent activities that are certainly causing concern among people who will be visiting your beautiful city.

[Darcy Rezac]

Thank you very much.

There's no question. We've had discussions with the head of the military, Rear-Admiral Tyrone Pile, who has some major responsibilities, and also with the RCMP, the Olympics folks, and so on. Olympics security has been an issue right from the get-go, and all the agencies are working very hard on that. We're satisfied that there's a comprehensive plan, most of which we don't know the details of, nor should we be aware of. But we're on top of that. I am confident that the folks are doing that.

Perhaps the RCMP would be in a better position to comment on that, but I am confident from the discussions we've had that that's well in hand.