Evidence of meeting #39 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was sentence.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Michael Spratt  Lawyer, Canadian Civil Liberties Association

12:15 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you, and thank you for being here today, Mr. Spratt.

I think you'd agree with me, would you not, that the determining of legislation under the Criminal Code is the exclusive jurisdiction of the federal Parliament?

12:15 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

Of course.

12:15 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

And judicial discretion, of course, I agree with you, is a fundamental aspect of our justice system and one we're proud of.

However, there are a lot of maximum penalties laid out in the Criminal Code. Would you have the same view of maximum penalties as you do of minimum penalties, that this is not, from a policy point of view, something Parliament should set?

12:15 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

There is some different research around maximum penalties. I think that would be a fascinating topic. I think the time is very ripe for a re-evaluation of the Criminal Code and to incorporate evidence-based policies.

We've seen the ability to have consecutive life sentences...or parole and eligibility periods. I am confident in our judiciary that if there's a competent, well-funded defence counsel, competent crown attorneys, the adversarial system and judicial discretion will impose the correct result. I don't think we need maximums and minimums to tell judges what that result should be.

12:20 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

In other words, from your point of view, judicial discretion is something that should be the way we measure sentencing, not minimums or maximums set by Parliament.

Is that where you're coming from?

12:20 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

Yes. Quite simply, a number written down in a book, or as the U.S. does, on a sentencing chart.... It's very easy sometimes to be a defence lawyer in the U.S., because you do the checklists on the chart and it gives you a range. It doesn't represent the reality of what we all know the human experience to be, that every situation is different and every person is different.

I think judges exercising their judicial discretion in the framework of our system are in the best place to impose a sentence and don't need maximums and minimums to box them in on that.

12:20 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

You mentioned south of the border and you brought up the U.S. again. Would you not agree with me that often—it's my understanding—in the United States the kinds of minimums we see are much higher than the ones we contemplate in the Criminal Code, the ones we already have? A minimum sentence, for instance, for an offence like this in some states is 20 years.

12:20 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

They've chosen different numbers, but that's precisely the point, isn't it? It's a number that's just been chosen and it doesn't accord with the principles of our system. Regardless of what that number is, whether that number was one year or 10 years, why not? The point is that it's not evidence-based policy.

12:20 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

You've used the word “evidence”. I think by “evidence” you mean criminology-type studies and things like that. In other words, research is what you mean by evidence, right?

12:20 p.m.

Lawyer, Canadian Civil Liberties Association

12:20 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

A lot of that research has been done looking at the American experience as the comparative. When you look at the American experience and see that a lot of the minimums they're talking about—and I just gave one example—are so much higher than what we're even talking about in Canada, it seems obvious to me that it's going to skew the result of those studies.

You cannot take a different system—even though it's adversarial-based, it's a very different system—a very different approach in the United States and say this will happen in Canada.

12:20 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

But isn't that the point?

When we look at studies in the United States that say that a 20-year minimum sentence doesn't deter, that's very applicable. If a 20-year minimum sentence doesn't deter, where is the evidence that a 5-year minimum sentence will deter?

It's very easy to impose minimum sentences. It's very easy to denounce conduct. I guess that's what minimum sentences are good for; they're good for denouncing, saying we think it's bad. We already do that through legislation. But minimum sentences don't assist with rehabilitation, and they don't assist with deterrence.

When it's the government's stated objective that this bill will help to protect children, that's wrong.

12:20 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

With respect, that's your opinion based on studies you've looked at. You're talking about studies, to a certain extent, done in a vacuum. In this bill we're talking about the proposal of a new minimum that hasn't been tested. We would be making new law here.

It's also my understanding that in the United States each state has the ability to pass these kinds of laws. You don't have the same kind of national consistency we aim for in Canada by having a national Criminal Code. Isn't that correct?

12:20 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you. Our time is up.

Mr. Jacob.

May 29th, 2012 / 12:20 p.m.

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Thank you, Mr. Chair.

My question is for Mr. Spratt. One of the potential challenges with interpreting the new provision is that the term “person” used in section 279 in the English version of the Criminal Code can refer to both the accused and the victim. We could actually infer that the new provision applies only to accused under the age of 16, not when the victim is under 16.

In your view, should we amend the provision to avoid any confusion in the English version, to talk about the kidnapped person as the victim by writing the provision as follows:

“Every one commits an offence who”,

as under sections 253, 264.1 and 270 of the Criminal Code?

Lastly, would mandatory minimum sentences apply to young offenders? Could you explain that?

12:25 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

Yes. Obviously the intent of this legislation is to apply when the victim of the kidnapping is under the age of 16. It would be illogical for it to apply to the accused person, because of course mandatory minimum sentences don't have any applicability under the YCJA.

Interestingly enough, one of the reasons they don't have applicability under the YCJA is because there are very good studies about deterrence of young people, their thought process, and their rehabilitation.

I agree with you that this should be clarified. It wouldn't apply to young people for many of the same reasons I've articulated—the lack of evidence about the applicability here. So, yes, I would agree that should be clarified.

12:25 p.m.

NDP

Pierre Jacob NDP Brome—Missisquoi, QC

Thank you, Mr. Chair.

I am going to share my time with Raymond Côté.

12:25 p.m.

NDP

Raymond Côté NDP Beauport—Limoilou, QC

Very well. Thank you very much.

Thank you to the witnesses for being here.

Let’s talk about deterrence. If I am not mistaken, that is one of the objectives of the bill. Let me tell you that deterrence was important to the witnesses we were able to hear from. They truly believed that a minimum sentence has a deterrent effect. You have already said that, in various circumstances, in other countries or situations, it has been proven that it does not have a deterrent effect. That seems to be very clear.

In addition, Michel Surprenant came here two weeks ago. He is the vice-president of the Association of the Families of Persons Assassinated or Disappeared. A great deal of his testimony and examples focused on sexual predators who might kidnap children. We can imagine that those would be among the many cases that fall under this section. Mr. Surprenant was convinced of what he was saying and he seemed to rely on studies according to which those sexual predators followed their instinct, first and foremost. They were not necessarily thinking about the crime, although he described them as being clever in capturing their prey.

In this case, once again, I think minimum sentences would have no effect whatsoever, no deterrent effect.

12:25 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

That would accord with the information and the studies that I've seen, and also my experience with my own client base and with the criminal justice system in general. Most people who interact with the justice system are interacting because they don't have very good foresight. They aren't able to engage in a cost-benefit calculation, and especially in sexually based offences, of course, these people have a very complex and individualized background, with addiction, with mental illness, and deterrence plays a very little role when you're looking at those types of offenders.

12:25 p.m.

NDP

Raymond Côté NDP Beauport—Limoilou, QC

I asked Chief Freeman a question about that. Clearly, that has less to do with rewriting the sections in the Criminal Code than with implementing measures that would prevent kidnapping cases. Educating the public, coordinating police forces, setting up alert systems, such as the AMBER alert program, might prevent those kidnapping cases. Those measures would have a stronger deterrent effect. What do you think about that?

12:30 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

I don't know if those would have a higher deterrent effect specifically, but I think they would be much more useful in terms of policy. The Amber alert system helps apprehend and disseminate information and get the children back, a very good policy. And of course especially from my vantage point as a practitioner, money spent on rehabilitation.... In Ottawa, we're very lucky to have the Royal Ottawa Hospital, which is one of the pre-eminent psychiatric facilities, and we have St. Lawrence Valley close by. Money is much better spent in places like that, I think.

I think, quite frankly, the government can communicate a message of denunciation, an abhorrence of this type of action without mandatory minimum sentences. I think citizens are able to understand that you can denounce conduct without thumping your fist on a table and blowing into the wind. An educated public will see other measures are more useful. Just because there isn't a mandatory minimum sentence doesn't mean that this conduct is approved of and accepted.

12:30 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you.

Mr. Seeback.

12:30 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

Thank you, Mr. Chair.

Mr. Spratt, you made a number of comments today that I found interesting. When you were questioned on whether an MMP is constitutional on first-degree murder, you said it's constitutional, but whether or not it's good policy is something else. I take it your position is that there shouldn't be a mandatory minimum penalty for first-degree murder.

12:30 p.m.

Lawyer, Canadian Civil Liberties Association

Michael Spratt

Yes. I mean....

12:30 p.m.

Conservative

Kyle Seeback Conservative Brampton West, ON

Yes, there shouldn't be an MMP?