Debates of May 31st, 2006
House of Commons Hansard #30 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was conditional.
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- Criminal Code
Wayne Easter Malpeque, PE
Mr. Speaker, I will be splitting my time with the member for Moncton—Riverview—Dieppe.
The previous speaker, the member for Hochelaga, hit the nail on the head when he said that the bill was based more on ideology than on facts. I think that is to be expected from the government with the orders coming out of the PMO, from one individual, and, as we have seen, the facts do not get in the way of a good story.
It is pretty dangerous to play politics with the criminal justice system and the impact that can have on society, which is what we are seeing from across the way, exaggerating or even talking about facts that really are not facts at all.
The bill seeks to amend the Criminal Code of Canada by mandating that a conditional sentence no longer will be an option for anyone convicted of an offence prosecuted by indictment that carries a maximum prison sentence of 10 years or more.
We in the Liberal Party take the safety and security of Canadian communities very seriously, which is why we introduced Bill C-70 in the last Parliament to address their concerns. Our bill focused on preventing those who were convicted of crimes causing serious personal injury from receiving conditional sentences.
We do not believe this Parliament should play politics with the Criminal Code. We want to see a balanced approach that does not create unnecessary hardship or expense where it is not warranted. Our critics will certainly be proposing constructive amendments at committee when that opportunity comes forward.
Conditional sentencing does have a role and an important role. Society must have a balance. Individuals who commit crimes must pay the full penalty for the crime but we must also give the best opportunity for rehabilitation while redressing the consequences of those crimes and the cost to Canadian society. However, Bill C-9, in my opinion, casts that net far too wide.
As a former solicitor general, I have had the opportunity to visit a lot of prisons and halfway houses. I have looked fairly constructively at conditional sentencing. When we compare our system to the American system, I sincerely believe our system is better because it has moved more toward reducing crime than the American system. Bill C-9 would move us in a direction of Americanizing our system.
Barb Hill, the director of policy with the John Howard Society, said that the bill would restrict the use of conditional sentencing. I am sure no one in this House would disagree with that. She also said:
The 10-year maximum cutoff includes “the vast majority” of all crimes in the Criminal Code.
She goes on to say:
(Conditional sentencing) has been working. It is an alternative. It does work. It is targeted at relatively low-risk people.
Incarceration does not work. We have to get Canadians off that mindset that the only way we can manage offenders is to put them in jail. That may be the worse thing we can do for many offenders. You're going to make them worse. It is really going to increase the likelihood of reoffending.
She went on to say:
We are supportive of those things that are alternatives to incarceration and allow people who can be safely managed in the community to remain in the community.
Conditional sentences permit offenders to continue with their jobs and provide for their families.
She concludes by saying:
Jail is not effective. In some cases it is the opposite of being effective.
The government's strategy, though, is to put forward a position that is not evidence based. The previous speaker said that when the minister was before the committee no analysis and no facts were brought forward to justify the government's position. When the Minister of Justice was in opposition, we heard some of his outrageous statements relating to crime. Let me say to the government and the Minister of Justice that they are in government now, and in a democracy, government is called responsible government for a reason.
In terms of the decisions and proposals being put forward by the minister, they need to be put forward in a responsible way. It is part of the conditions of being in government. Good policies must be based on fact and on evidence. They should not be based on a perception that is out in the general community. Good policy, then, has to be based on good facts.
As we saw during the election, government members tend to try to scare people on the crime issue and exploit the latest headlines. Yes, crime is a very serious matter and, especially for those people who are affected personally, it is an emotional issue, but on issues like this when we are dealing with the justice system, it must be based on good analysis. What is needed is good analysis. What we need are decisions that are based on facts. The government has not brought that analysis forward.
As I said a moment ago, I believe Bills C-9 and C-10 are somewhat of an Americanization of the Canadian justice system. I do not believe that is appropriate. Let us look at Canada and the United States. Which do members think has a higher rate of crime? I do not think there is anyone who would not say that it is the United States. That is where the crime rate is higher.
Let us look at the incarceration rate in Canada under our criminal justice system. Two years ago, it was about 107 per 100,000, whereas in the U.S. it is around 600. What it clearly shows is that building more jails, throwing people in jail and forgetting about the rehabilitation of those individuals so that they can contribute to society in a positive way, is not the answer, but this is the approach that the government opposite is taking.
Conditional sentencing is not easy time. I would like to refer to what our justice critic said earlier, and I think these points need to be reinforced:
In almost all the cases, the conditional sentence orders contain restrictive conditions of a house arrest and/or curfew, often both; often community service; mandatory treatment and counselling; and often other conditions are tailored into the sentence and can be very effective in preventing repeat offences while still having the person exist safely inside the community with the deterrence of having the house arrest, et cetera. It is not about being hard or soft on crime. It is about a sense of effective, just sentencing in Canada for those who go outside our law.
This is the approach that I think we have to take overall.
It will be really important at committee to have witnesses come forward. We certainly will be supporting the bill going to committee. It will be very important for witnesses to come forward to talk about the analysis that has been done and the facts that are out there. The bottom line is that building more prisons is not going to lessen the crimes, and this bill places the net very much too wide.
It would be far better to spend money on policing and on crime prevention. That is the best way to prevent crime. The best way is to have the police forces out there, have the crime prevention policies in place and deal with rehabilitation in terms of individuals who have gone astray. That way, we build a social and economic base in our society in order to continue to prosper as a nation. I believe this bill does not cut it in terms of us getting there. It will have to be changed at committee.
Anthony Rota Nipissing—Timiskaming, ON
Mr. Speaker, as I was listening to the hon. member, I noted that a lot of the points he brings up are awfully good. They make a lot of sense and they are very logical. When we look at this, we wonder what we want to do with people who have done something wrong. Do we want to punish them or do we want to rehabilitate them?
It seems that the party opposite is more interested in retribution than it is in rehabilitation. Locking someone up is not exactly the ideal way of helping them get out of their situations.
I have a question for the hon. member, who alluded to a couple of differences. For example, let us look at what is going on in U.S. states that have adopted a “three strikes and you're out” policy, which is very similar to what the party opposite wants to look at, where people are just thrown in jail and warehoused. Warehousing human beings does not rehabilitate them.
How does that compare to what our friends on the other side, the Conservatives, want to do to our society and our people who are having trouble and causing some problems?
Wayne Easter Malpeque, PE
Mr. Speaker, in response to the question on punishment and rehabilitation, certainly what is required is a combination of both, but the member talked about the system in the United States, in states that do have a policy of three strikes and the people are out. Sometimes that third strike is based on petty crime.
In my remarks, I spoke about having the opportunity, as a former solicitor general, to look at our system closely and to see the prisons. The party opposite used to talk about “club fed” in terms of our jail system. When we look at the jails and prisons in this country, we see no club feds in our jail system.
Also, let us look at the work of the John Howard Society and some of those NGOs that are working with people who have fallen on hard times in life and who, not necessarily all through their own fault, did in fact get into crime. These groups work with those individuals. They can rehabilitate them. They can make them productive individuals. They can give them an opportunity in life again.
That is what our criminal justice system should be all about. Let us give them an opportunity. Yes, they have to pay a penalty for the crime, but we need to give them the opportunity to be productive members of society again. That is what our system has, which the American system really does not have to any great extent. I think that is why our system is much better.
However, the party opposite is talking about the latest crime statistics, looking at the latest sensationalized issues and avoiding doing the analysis. It really is playing politics with a system that we should not play politics with.
Brian Murphy Moncton—Riverview—Dieppe, NB
Mr. Speaker, first of all, let me say that Canada’s judiciary is under attack.
The new sheriff and his deputy, the Minister of Justice, rode into town and in a few short months have insulted, or have allowed their posse to insult, the Chief Justice of Canada. They infer that she felt her direction came from God, when everyone knows that it is the Conservative Party that takes its advice from God, or so those members would see it.
They publicly and privately accuse judges and justice officials of being liberal and unworthy.
They have just rejected an arm's length committee report on long overdue judicial remuneration.
Finally, they have introduced legislation like this, which is aimed at taking away judicial discretion and making judges readers of meat chart sentencing tables, disregarding the time-honoured legal principle that cases do not stand for grand propositions, but turn neatly on their facts.
Each case is different and our judges have the tools required for dealing with each one of them.
As a rule, judges are nominated following a rigorous process, involving committees comprising presidents of bar associations, chief justices and attorneys general of the provinces.
Before that, there is a rigorous peer review process. Most members of the House will agree this was the case with respect to Justice Rothstein. If so for him, why this attack on the integrity, humility, remuneration and, above all, discretion of our federal judges? It is a question I cannot answer.
I can say that the assault on conditional sentencing is a piece of that puzzle. I can agree with parts of the bill but not others. Coupled with reforms to mandatory minimums, street racing minimums and amnesty for illegal gun owners, this is a general attitude of contempt for justice shown by the Conservative Party.
The point is that law reform and the Criminal Code itself, which I admit was written by a very good Conservative Prime Minister, Sir John Thompson, who has since passed away, are organic processes adapting to times changing and the different instruments that work to keep our society safe. They are always however under the guiding hand in the trenches of our judges, prosecutors, probation officers, defence lawyers and the whole legal team.
It is important to underline that we have a safe society. From 1994 to 2004 the crime rate fell by 12%. It is the perception that has changed. The media sensationalizes crime and, following an American trend, politicians pander to the fear that crime brings in the community.
The problem is, as the Liberal leader said the other day in the House, that Conservative legislation lately seems like it is written on the back of napkins and railroaded through the House. Bill C-9 is one such case. Let me illustrate how.
The current system of conditional sentencing was adopted in response to criticisms that Canada was imprisoning too many of its citizens.
It was thought that too large a share of taxpayers’ money was going to prisons, when the funds could have been spent on constructive crime prevention programs.
Conditional sentencing is one important aspect of sentencing. This type of sentence plays a major role in the rehabilitation and social reintegration of offenders. Unfortunately, the money saved by reducing the number of prison sentences was not reallocated to enough programs. For example, there is a clear need for additional money to increase the number of officers who supervise conditional sentences.
Conditional sentences obviously require supervision. People serving conditional sentences are in our communities. So, supervision is required. The sad reality is that the resources of the people who supervise this type of sentence are strained to the limit.
The program was good; the delivery was not. In the Moncton area, for example, there is one full time supervisor for all conditional sentences. He is unable to ensure that everyone who is on a conditional sentence is in fact at the house when they are supposed to be. He cannot do it. It is a matter of resources and federal-provincial relations.
Many of the breaches of conditional sentences actually happen because the people are out doing other crimes and the supervisor is informed that the crime happened. The supervisor in the Moncton area does have assistance. The provincial jail helps out and calls for compliance. Unfortunately, after one contact is made, the offender will often breach knowing that his number came up and that he is free to go that night.
The largest pitfall, however, with conditional sentences has been the perception from the general public that offenders are not being punished for their criminal actions. This is particularly true of offenders who have committed offences of violence or serious breaches of trust.
When the Criminal Code was amended to include conditional sentences, no offences were excluded.
What had to be determined was whether a person found guilty of an offence was liable to a minimum prison term. If not, the person could receive a conditional sentence as long as the sentence was less than two years.
Prior to these amendments, a person in New Brunswick convicted of dangerous driving causing death or impaired driving causing death would likely receive 6 to 18 months. Since the amendments, a person in New Brunswick is likely to receive a conditional sentence. That does not seem right.
Initially, public prosecutions opposed such granting of conditional sentences. However, following the Supreme Court of Canada decision in Proulx, it became clear that unless specifically exempted, a conditional sentence was available for any offence.
The public is losing confidence in the administration of justice in the area of sexual assaults. Offenders are receiving jail time for offences against children and for violent sexual assaults, but many are receiving conditional sentences as well.
The question now is how to achieve the legitimate goals of the sentencing process while preserving the integrity of the judicial system in the eyes of Canadians.
Bill C-9 is one of the attempts to answer the question. In response to the criticisms of the conditional sentencing system and in view of the fact that the public is demanding more restrictive use of this sort of sentence, the solution seems to be to get rid of conditional sentences for all offences punishable by indictment that incur a sentence of ten years or more.
Including all such offences will not work. This will not bring back the public's confidence. First and foremost the amendment is overreaching. The purpose of conditional sentences was to deal more effectively with non-violent offenders.
Take the case of financial crime offenders. If they were going to jail before, they were not able to make restitution to their victims. A conditional sentence regime works well and is not against the public interest.
Under the regime of Bill C-9, in the haste to get it passed, this will not be the case. There will not be a chance for restitution to widows, orphans and pensioner funds.
The amendment causes hardship for other victims and such is the case with sex offences. At present, a sex offender may receive a conditional sentence. This is not well received by the public. Bill C-9 does not respond to this. The perfect example is the case of summary sexual assault. For those members who are not lawyers and do not know lawyers, the victim of a sexual assault does not like to go through the process of a preliminary inquiry which is entailed in the indictment process.
That is what these victims are put through if there is no redress for it at committee. One factor is the expected sentence. We cannot fault prosecutors for choosing their venue to get a conviction if they have a victim of a sexual assault who is afraid to go both to the preliminary inquiry and to the trial. Nonetheless, if the offender should receive a jail term the Crown could proceed by indictment therefore taxing the resources and again putting the victim through the double peril. Historical sexual offences will also fall outside the scope of Bill C-9.
In conclusion, the only method to ensure the integrity of the conditional sentence regime would be to amend it, to take the time to examine it and amend it. In such a manner public confidence would be maintained and would allow for a greater flexibility in the laying of accusations. The bill is hasty and will not fix the problems. It misses some problems and creates new ones. We will be revisiting the bill at committee and in the future. The sheriff, the deputy and the posse did not hit the bull's eye this time.
Réal Ménard Hochelaga, QC
Mr. Speaker, I would like to congratulate our colleague on his brilliant speech. I have two questions for him.
Did he get a chance to read the 2000 Supreme Court decision in the Proulx case, suggesting that there should be guidelines governing the whole area of conditional sentences? Could he tell this House whether he believes that conditional sentencing really promotes social rehabilitation? Could he share his thoughts on the matter with us?
Brian Murphy Moncton—Riverview—Dieppe, NB
First, Mr. Speaker, I want to thank the hon. member for his questions. I did read the decision rendered in the Proulx case. I know that this was a good decision. I do not totally agree with it because, of course, there is still a problem with certain aspects that would not be covered by the decision and amendments made prior to it.
I agree that the sentencing principle reviewed in that decision is clear and accurate. Conditional sentencing is a good system. It should not be thrown out entirely. It should be reviewed and amended so that we can have a conditional sentencing system that works for the communities. I totally agree with the hon. member, and I thank him for his questions.
Raymond Simard Saint Boniface, MB
Mr. Speaker, I have been listening attentively to my colleague. There is a perception and reality when it comes to crime, and members opposite have been trying to convince Canadians that crime has actually increased in Canada over the last number of years.
I would like to ask my colleague from Moncton whether or not that is a reality? The reality is that over the last 10 years crime has actually diminished considerably. Maybe he could--
Why ask him if you already know?
Raymond Simard Saint Boniface, MB
I would like him to clear it up for the member's information because it is very important that colleagues on the other side do not misinform Canadians about what is really happening with respect to crime during the last period of time.
Brian Murphy Moncton—Riverview—Dieppe, NB
Mr. Speaker, clearly, the evidence shows that crime is down 12% from 1994 to 2004. What has changed, however, and all of us on all sides of the House join in this regard, is that in many quarters the perception of the crime rate has changed. As I mentioned, in a somewhat partisan fashion, parties and politicians will exploit criminality.
Maybe all sides of the House could agree that the media sensationalizes crime. I think that is very true. It sensationalizes almost everything. That is another factor why crime is, in its appearance, on the rise.
I invite members to read the material from the John Howard Society. It is a habit of the Conservatives to pass a bill and then read the underlining material, but it is always good to read the material before passing a bill. That is the way we did it in law school. It is kind of the Maritime way.
I recommend members read this article in the John Howard brief. On page six of the brief, it is very clear that the perception is being run by political fearmongers, some of whom are on the other side even though there are many reasonable members on that side. The perception is also being run by the media. We have to combat that and deal with the statistics. We have to insert into the organic Criminal Code what will work to keep our society safe.
Mandatory minimums and conditional sentences are nothing new. They are Liberal policy. I have already conceded that the Criminal Code was a Conservative project from Sir John Thompson's time. Let us work together in committee and make this work. Let us review it and make it sensible for the coming generation.
The Deputy Speaker Bill Blaikie
Before moving to the next speaker, it is my duty, pursuant to Standing Order 38, to inform the House that the questions to be raised tonight at the time of adjournment are as follows: the hon. member for Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, Price of gasoline; the hon. member for Don Valley East, Equalization payments; the hon. member for Skeena—Bulkley Valley, The Environment.
Carole Freeman Châteauguay—Saint-Constant, QC
Mr. Speaker, I am pleased to join my colleagues in the debate on second reading of Bill C-9, which amends the conditional sentence provisions of the Criminal Code.
The Minister of Justice presented his bill in this House on May 4. Since this legislation was introduced, we have heard an impressive number of negative comments directed to the minister and the Conservative government. In fact, there is every indication that the government is going it alone, in what can only be described as a crusade whose true roots can be found in the Conservative Party’s populist approach.
The Conservative ideology is based on the law and order mindset that characterizes a particular fringe element of Canadian society, especially out west. The Conservative Party is pushing a tough and extremely harsh approach to crime and punishment, and along that way it has rejected the principles of rehabilitation of offenders and alternatives to imprisonment.
Let us be clear: the Bloc does not advocate emptying the prisons or using imprisonment only for dangerous criminals; far from it. But a balance must be struck between the harshness of the sentence imposed and the seriousness of the offence, the risk of recidivism and public safety. This is where the impact of enacting the Conservative bill would be felt the most.
To be as clear as possible, I would note that the objective of the current version of Bill C-9 is to amend section 742.1 of the Criminal Code to provide that conditional sentences may not be imposed for offences prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more. At least, that is what the minister claims.
There are major flaws in this bill that nothing has been said about, and whose consequences go beyond sentencing alone. They will directly affect not only the justice system in its entirety, but also, and most importantly, the prison system as a whole.
At present, section 742.1 of the Criminal Code provides:
Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community...the court may
In fact, however, that alternative to conventional imprisonment must comply with the purpose and principles set out in sections 718 to 718.2, including denouncing unlawful conduct and deterring the offender and other persons from committing offences. Consideration must be given to separating offenders from society, where necessary, keeping in mind the guiding principle of rehabilitating offenders and providing reparation for harm done to victims or to the community.
For example, expressions of remorse by offenders, or at least a genuine understanding of their responsibility, as expressed, for example, through recognition of the harm they have done to victims and to the community, are other factors that must also be taken into consideration in sentencing.
The court may then order that offenders serve their sentences in the community so that their behaviour may be supervised, provided that they comply with the strict conditions imposed.
The Conservative government wants to make the Criminal Code unnecessarily tough by eliminating the court’s option of imposing a conditional sentence of imprisonment. The consequences of that approach are enormous.
We need to realize that the bill sponsored by the justice minister will greatly increase the number of crimes for which judges can no longer impose a conditional sentence. It is ironic that in getting tough on criminals, they are tying the hands of judges who might have decided, in light of all the facts, that this would have been the most appropriate sentence.
With its populist approach for clearly electoral purposes, the Conservative government is taking a dangerous backward step of ten years in our legal system. Conditional sentences were adopted in 1996 as an alternative method of incarceration for adult offenders.
Now, as at that time, the Bloc Québécois believes that it is extremely important for judges to have as broad an array of choices as possible at their disposal in determining appropriate sentences. The Bloc also believes that this approach is most conducive to the successful rehabilitation of offenders while ensuring public safety and the appearance of justice.
Prior to 1996, people found guilty of a criminal offence and sentenced to terms of just a few days were required in all cases to serve their time in prison. The primary objective of conditional sentences was to reduce incarceration and give the courts an alternative.
Since the adoption of conditional sentencing, judges can condemn a person who poses no danger to public safety to serve a sentence that is less than two years in the community.
When imposing a prison sentence, judges must consider the offender’s degree of responsibility and the seriousness of the crime. Sentencing is therefore not a simple equation between a certain crime and a certain sentence. A multitude of factors have to be factored in, such as those I just mentioned.
The Bloc Québécois strongly advocates a justice system based on a personalized approach specific to each case in which conditional sentences are an essential option.
To do otherwise by eliminating the ability of judges to pass sentences that involve serving time in the community will impose a gigantic additional financial burden on Quebec and the provinces. If we consider the difficult financial situation that the provinces face and the astronomical cost of detaining offenders, it becomes self-evident that the money spent in this way would be much better used for the purposes of rehabilitation and prevention.
There are at present 15,000 individuals serving a conditional sentence. Those are 15,000 convicted criminals serving their sentence in society because they are considered very low risk, both to re-offend but also and above all for society itself. In other words, these individuals do not have to live, if I can put it that way, in a prison, and so the resulting financial burden is that much less.
In the opinion of Department of Justice officials one third of the 15,000 criminals on a conditional sentence will no longer be eligible for it if the government carries through with Bill C-9.
Imagine for a moment the need to incarcerate 5,000 persons all at once, all over Canada, for variable terms, certainly, but all the same at a time when the prison system is filled to capacity. I dare not even think of the colossal sum that this insane bill of the Conservatives is going to cost.
To satisfy a specific electoral clientele and firm up the support of the militant right-wing rank and file, the Conservative Party is prepared to embark on a legislative and social cul-de-sac, a veritable ideological dead end. The Conservatives’ logic is baseless, and even contrary to their general vision of law and justice.
They argue for a toughening of the penal system on the one hand, and on the other they limit the powers of judges to formulate and determine the sentences to be imposed on offenders.
Conditional sentencing is a very attractive alternative for the courts, in that judges can impose a harsh sentence on someone, for example by ordering strict conditions to limit mobility and activities, without filling and overfilling prisons which are already overflowing. And I have not even raised here the issue of deterrence for the bulk of offenders, out of simple fear of possibly ending up in prison amidst a clientele that is rather intimidating, for lack of a better term.
With regard to the conditions that accompany conditional sentences of imprisonment, it is helpful to note that they vary from one person to the next, but are defined according to a mandatory legislative classification, and are discretionary since they are determined by the court. For example, when an offender breaches one of his conditions, he has to appear before the judge again, and if the judge is convinced that the offender has breached a condition with no reasonable excuse, he or she will issue an order for the rest of the sentence to be served behind bars.
Mandatory conditions are those which a judge does not need to record in the conditional sentence order, as they apply in all cases without exception. The other conditions are called “discretionary” since the judge has discretion to include them in the conditional sentence order and to amend them according to the particular situation.
These mandatory conditions include keeping the peace and being of good behaviour, going to court when required, and reporting to a criminal justice system supervisor regularly. The court must also ensure that the offender stays in a specified area by requiring the person to get written permission to travel outside this area. The offender must also tell the criminal justice system supervisor before moving or when changing jobs.
With respect to discretionary conditions, there are, in theory, an infinite number of them because a judge can apply any condition he or she deems reasonable.
However, house arrest and curfews have practically become a given. Courts have ruled that a person receiving a conditional sentence must, in principle, be under house arrest for the duration of the sentence. The judge may allow some exceptions to allow the individual to go to work or to school.
This last element seems to me to be quite sensible, and I am surprised that members of the Conservative Party do not consider it to be more important. It seems that their basic objective is to fill up the prisons with all kinds of criminals, to just put them away regardless of the seriousness of their crimes or even their risk to reoffend.
In closing, I urge my colleagues to reject Bill C-9, which would not only cost a fortune in correctional infrastructure, but would bring take our penal justice system one big step backward.
Carole Lavallée Saint-Bruno—Saint-Hubert, QC
Mr. Speaker, I wish to thank and congratulate my colleague, the member for Châteauguay—Saint-Constant, for her excellent presentation and her very clear speech demonstrating her great talent for everything to do with law and justice.
In her presentation, the member pointed out the populist approach of the Conservative government and its law and order approach. The people in this government are very keen on anything to do with law and order.
My question is for my colleague and concerns correctional officers working at detention centres, who have been without a collective agreement for four years. June 1, that is tomorrow, will mark the fourth anniversary. I don't know who will bring the cake, who will blow—
Lynne Yelich Blackstrap, SK
Mr. Speaker, on a point of order. There is no translation right now.
The Acting Speaker Andrew Scheer
Could the interpreters tell me if the system is working?
It is working.
Will the member continue?