House of Commons Hansard #38 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was sentences.

Topics

Criminal Code
Government Orders

5:45 p.m.

Conservative

Kevin Sorenson Crowfoot, AB

Mr. Speaker, it is a pleasure to speak in support of Bill C-16. This bill would end house arrest for property and other serious crimes by serious and violent offenders.

It is good to hear that the NDP is going to vote in favour of this to move it to committee. I am sure our committee, chaired by the member for Abbotsford, will do good work on this bill.

Bill C-16 addresses the issue of conditional sentences or house arrest as it is often described. The issue is not a new one and has been considered by this chamber in recent years. While that debate is relatively fresh in our minds, there does not seem to be an appreciation for the operation and principles of sentencing in criminal cases in Canada, and within that, the proper role for any sentencing option, including conditional sentences. This is what I will use my time to address.

It has become clear to me over the years here, as illustrated by the nature of the debate over various aspects of this government's tackling crime agenda, that the sentencing regime, while widely criticized, is understood by relatively few people.

Criticisms based upon misperceptions or misunderstandings contribute little to a serious discussion about a serious issue. In fairness, I recognize that part of this has to do with the sheer complexity of modern criminal law, which must deal with everything from single assault through complex commercial crime, all the way to terrorism and to cybercrime that uses the most advanced technologies.

Part of it has also to do with the nature of the Criminal Code sentencing regime itself, which contains a lengthy list of purposes, objectives, and principles that have often been supplemented by complex legal rulings from different levels of courts all across this country.

It is not hard to see why those who are not formally trained in law, as I am not, may find it challenging to understand immediately the specifics of particular reform proposals, such as those before the House today.

Yet, our role as lawmakers is to work through these complexities and through these challenges to ensure that we understand the current shortcomings of the law and how the proposed reforms we are discussing would effectively address those shortcomings within the overall sentencing regime.

Mr. Speaker, I will be sharing my time with the member for Lethbridge.

To really understand the current shortcomings of the conditional sentencing regime and the central problem that Bill C-16 intends to rectify, we must understand the original rationale for the creation of conditional sentences.

Shortly stated, conditional sentence is a sentence of less than two years that a judge allows offenders to serve in the community subject to a number of conditions whose breach could send them directly to prison.

I can readily acknowledge that for the average Canadian the notion of a conditional sentence seems somewhat confusing and even contradictory at times.

While the conditional sentence is a form of punishment, it is not easily categorized because it straddles the line between prison, probation, and even in some cases has the markings of the hallmarks of parole.

For instance, it is not actual jail time because if the offenders satisfy all the conditions that are imposed upon them, they will never spend a single day in prison despite the nature of the offence for which those individuals were convicted. Nor is it probation, for a probation order is typically made in the case of a suspended sentence and is enforced quite differently with greater difficulty than a conditional sentence.

As the name implies, a conditional sentence takes the form of a sentence. By the same token, a conditional sentence is not parole since the offender is not released after having served an appropriate period of time in a prison or a penitentiary under the authority of our Canadian correctional system. It is the sentencing court, not a Parole Board, that exercises the discretion to order a conditional sentence in lieu of jail time.

In hindsight, it is clear from the statements of the original sponsoring minister back in 1994, as well as from subsequent court judgments, such as the Supreme Court of Canada's decision in R. v. Proulx, that the conditional sentence was conceived as an alternative to imprisonment and as one way to reduce Canada's rate of incarceration. We heard the NDP bring that forward here this afternoon.

While this is a laudable objective, it cannot be allowed to detract from the protection of society as the guiding principle or to diminish the right of that society to denounce particularly heinous conduct and to punish those responsible for that conduct.

This brings me to the central issue that I want to raise with regard to conditional sentences. Prior to this government's most recent conditional sentencing amendments in 2006, there were four criteria for a conditional sentence order. First, the sentence had to be less than two years. Second, the person had to show that he or she was not deemed to be a danger to society or to the community. Third, there was no mandatory minimum term of imprisonment. Fourth, there had to be consistency with the fundamental purpose and principles of sentencing.

The discretion that was granted to judges by these criteria was quite wide. In fact, from the outset, critics have reasonably argued that the discretion accorded by Parliament in the early years of the conditional sentence regime itself was overly broad. For example, with regard to the first and second criteria, even now most sentences in Canada are less than two years and, among the large number of Criminal Code offences, there are still relatively few that call for mandatory minimums.

By the same token, the third criteria originally asked a sentencing judge to assess the danger of an offender to his or her community, but without offering any supporting criteria against which to make an assessment. The fourth criteria provided insufficient direction for the proper use of a conditional sentence. The purpose and principles of sentencing cover a lot of philosophical ground in that they require sentencing judges to balance denunciation, deterrence and separating an offender from society by methods of rehabilitation, restitution and the development of a sense of social responsibility by the offender. That responsibility was placed on the judiciary.

Criteria one and two illustrate what many believe was so radically wrong with the conditional sentence regime as originally enacted: the focus on the length of the sentence rather than on the nature of the offence, the character and criminal record of the offender and not so much the consequences for the victim of that criminal's action.

It was particularly notorious that the conditional sentencing regime as originally developed did not see fit to explicitly exclude particularly odious crimes such as child sex offences. In such cases, the repugnant nature of the offence, the character of the offender and the consequences for the victim should have been paramount considerations and should have automatically made such offences ineligible for conditional sentences.

It should not be surprising, therefore, that the courts had difficulty grappling with conditional sentences. This was especially so after the Supreme Court in R. v. Proulx appeared to endorse the notion that no offences were presumptively excluded from the conditional sentence regime. In fact, Proulx offered very little guidance to sentencing judges, nor did the Supreme Court itself appear to have a consistent approach to conditional sentences. Four conditional sentencing cases decided by the Supreme Court at the same time as Proulx highlighted the apparent lack of judicial consensus on these issues.

I see that my time for debate is up. I am very pleased that the government has moved forward with this. We have done this before in Bill C-9. We have done it at other times in the House. We have debated it recently in past Parliaments. I look forward to this bill being passed quickly, moved to the committee, studied, and brought back to the House. This is going to make Canada safer and a better place for all.

Criminal Code
Government Orders

5:55 p.m.

Liberal

Larry Bagnell Yukon, YT

Mr. Speaker, I think the member's speech was well researched by the department and had some very good information in it. I would like to ask him a few questions, which I have asked before.

Court cases are in the papers. They become public once they are finished. Considering that the Bloc has announced that there are hundreds and probably thousands of successful conditional sentences, could the member give a few examples of unsuccessful ones that indicate the need for this particular bill?

Of course, society is made safer if a person is less likely to reoffend. The evidence is that under conditional sentences the offenders are less likely to reoffend. Has that been shown? Why would that not be safer for society in a number of cases? I am not saying in all cases but in a number of cases. Hopefully the researchers have come up with answers to those questions since I asked them about an hour ago.

Criminal Code
Government Orders

5:55 p.m.

Conservative

Kevin Sorenson Crowfoot, AB

Mr. Speaker, I will tell the House what a lot of our constituents tell me.

We have sent out ten percenters into our own constituencies to judge some of the responses from our constituencies. A number of them have gone out asking a question regarding conditional sentences. Many constituents respond by asking, in the case where someone is an arsonist and burns down someone else's home, burns down someone else's property why would we then allow that person to complete the sentence in his or her own home?

Many times we read about people who have breached the conditions in a conditional sentence. With respect to drug crimes, many have continued to either traffic or to be involved in that culture.

I would say to the member for Yukon, it is correct that there is a difference between the former government and this government. We take the rights of victims very seriously. We look at the offenders. Protection of society is the guiding principle. In many severe cases we believe, my constituents believe and I believe that they need to be lived out. Offenders need to spend their time in prison doing time for their crime.

Criminal Code
Government Orders

5:55 p.m.

NDP

Nathan Cullen Skeena—Bulkley Valley, BC

Mr. Speaker, I listened intently to my friend's speech earlier.

The Conservatives at one point in their history used to be quite interested in the costs of various pieces of legislation. Whenever we would bring a bill forward, particularly on the environment, it seemed to be their constant obsession that they would ask about the costing of the program.

Many times we have asked that the same consistent approach be applied here. What are the expected costs of different pieces of legislation? Initially the minister projected one of the bills at $89 million. I believe that the Parliamentary Budget Officer will be coming out with costs later this week and the early estimates are that it is in the several billions of dollars. There is a cost associated with changing the law, changing the punishment and the amount of time people spend in jail.

This seems to me to be an important part of this debate. Has my colleague costed the bill or has his government done so and if not, why not?

Criminal Code
Government Orders

6 p.m.

Conservative

Kevin Sorenson Crowfoot, AB

Mr. Speaker, again the member is asking about the cost of the program. Let me tell him about the cost to society.

The cost to society in putting some of these folks into their own home so that they can go out and reoffend is huge. There is the cost to the victim. There is the cost of the victim knowing that after going through the whole judicial process, the guy is being put back into his home rather than into prison. There is the frustration that the victim experiences seeing that the guy gets to live out his sentence in the luxury and confines of his home.

Therein lies the great distance between us and the New Democrat members: they look to the offender, to the criminal asking what is the cost; we look to the victim and ask what is the cost to society.

Criminal Code
Government Orders

6 p.m.

Conservative

Rick Casson Lethbridge, AB

Mr. Speaker, it is with great pleasure that I speak today in support of Bill C-16, ending house arrest for property and other serious crimes by serious and violent offenders. This bill is designed primarily to restore confidence in the criminal justice system by proposing additional restrictions to the use of conditional sentences of imprisonment.

The House is quite familiar with this issue--

Criminal Code
Government Orders

6 p.m.

Some hon. members

Oh, oh!

Criminal Code
Government Orders

6 p.m.

Conservative

Rick Casson Lethbridge, AB

Mr. Speaker, could I have some order please.

Criminal Code
Government Orders

6 p.m.

NDP

Nathan Cullen Skeena—Bulkley Valley, BC

What's good for the goose is good for the gander. What does the bill cost?

Criminal Code
Government Orders

6 p.m.

Conservative

Stephen Woodworth Kitchener Centre, ON

Never make a proposal with no cost in it.

Criminal Code
Government Orders

6 p.m.

Conservative

The Acting Speaker Barry Devolin

Order, order. If members would like to continue their conversation, they can do so outside the chamber.

The hon. member for Lethbridge.

Criminal Code
Government Orders

May 3rd, 2010 / 6 p.m.

Conservative

Rick Casson Lethbridge, AB

Mr. Speaker, conditional sentences became a sentencing option over 13 years ago with the proclamation in September 1996 of Bill C-41, sentencing reform, chapter 22 of the Statutes of Canada, 1995. The original intention of conditional sentences was to promote the protection of the public by seeking to separate the most serious offenders from the community while less serious offenders could remain among other members of society with the effective community-based alternatives while adhering to appropriate conditions.

Conditional sentences were to provide an intermediate sentencing option between probation and incarceration to permit less serious offenders to remain in the community under strict conditions if their sentence was less than two years, the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community, and their offence was not punishable by a mandatory minimum term of imprisonment.

An amendment was made in 1997 to add a requirement that the court be satisfied that sentencing the offender to a conditional sentence of imprisonment would be consistent with the fundamental purpose and principles of sentencing set out in section 718 to 718.2 of the Criminal Code.

In 2000, the Supreme Court of Canada held in R. v. Proulx that a sentencing court must first find that a sentence of imprisonment of less than two years is appropriate before considering whether the sentence can be served in the community under conditional sentence order. In other words, a court must be of the opinion that a probation order and/or fine would not adequately address the seriousness of the offence and the degree of responsibility of the offender.

Second, a penitentiary sentence, a term of imprisonment of more than two years, would not be necessary to do so and a sentence of less than two years would be appropriate. Once this decision is made a court would then determine whether the sentence of imprisonment of less than two years may be served in the community, bearing in mind the other prerequisites I referred to earlier, community safety for one.

Over the years conditional sentencing decisions that appeared on their face to be questionable have contributed to a loss of public confidence in this sanction and therefore in the administration of justice.

A number of observers, including some provincial and territorial counterparts, became increasingly concerned with the wide array of offences that received conditional sentences. By the time our government took office in 2006, it had become clear to us that further limits to the availability of conditional sentences were needed. Our government responded to these concerns when it tabled Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), on May 4, 2006. Bill C-9 was referred to the justice committee just one month later on June 6, 2006.

Bill C-9, in its original form, proposed to eliminate conditional sentences for offences prosecuted by indictment and punishable by a maximum sentence of 10 years or more. It was and still is the opinion of this government that offences prosecuted by indictment and punishable by a maximum sentence of imprisonment of 10 years, 14 years, or life are serious offences that should not result in a conditional sentence order. This is so even if the court ultimately finds that a sentence of less than two years is proportionate to the circumstances of the offence and the degree of responsibility of the offender.

Bill C-9 as originally drafted would have caught serious crimes such as weapons offences, offences committed against children and serious property crimes. However, opposition members thought that the scope of Bill C-9 went too far in limiting conditional sentences and amended it to only capture terrorism offences, organized crime offences and serious personal injury offences as defined in section 752 of the Criminal Code that are punishable by a maximum sentence of 10 years or more and prosecuted by indictment.

This was similar to the approach taken in Bill C-70 which the previous government had tabled in the fall of 2005, but which died on the order paper with the call of the general election later that year. The amendments to the bill created some strange results. First, the opposition amendments to Bill C-9 created a situation where offences punishable by a maximum of 14 years' imprisonment or life are not all considered to be serious crimes. I would like to remind members that these are the highest maximum available in the code.

Second, as a result of amendments to Bill C-9, offences contained in the Controlled Drugs and Substances Act are not excluded from eligibility for a conditional sentence unless they were committed as part of a criminal organization. Consequently, the production, importation and trafficking in a schedule I drug such as heroin would not be caught and would be eligible for a conditional sentence of imprisonment. However, as members of the House know, our government has proposed mandatory minimum penalties for serious drug offences. I would expect that when the legislation is enacted, as I hope will soon be the case, these offences would be ineligible for a conditional sentence.

Until the coming into force of Bill C-9 on December 1, 2007, sentencing courts had only to interpret serious personal injury offences for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met, because that term only applied to the dangerous and long-term offender provisions. Since Bill C-9 came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences.

The Alberta Court of Appeal in Ponticorvo, 2009, reviewed its decisions in Neves, 1999, where is considered the definition of serious personal injury offence in the context of dangerous offender provisions. In that context, the court concluded that section 752 required that the offence considered be objectively serious. However, in the context of conditional sentencing, that court of appeal found that the use or attempted use of violence sufficed and did not require any overlay of objective seriousness. In other words, it ruled that it should be easier for the Crown to establish that an offence is a serious personal injury offence in the context of a conditional sentence than it is in the context of a dangerous offender.

While that is an appropriate interpretation, there have been some cases that do not follow the decision of the Alberta Court of Appeal and continue to apply the guidelines developed in the context of dangerous offenders in determining whether an offence is a serious personal injury offence.

Another concern with the definition of serious personal injury offence is that serious property crime, such as fraud, could still be eligible for a conditional sentence. We are well aware of recent examples of the devastating impact of fraudulent conduct. Victims who have lost their life savings have called for strengthened sentences for those types of crimes. It is hard to disagree with their concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, would still be eligible for a conditional sentence, despite reforms enacted by Bill C-9. It is clear to me, and I suggest to many Canadians, that greater clarity and consistency is needed to eliminate the availability of conditional sentences for serious violent and serious property offences.

For these reasons, Bill C-16 proposes to remove the reference to serious personal injury offences in 742.1, to make all offences punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for conditional sentences.

Bill C-16 would also clearly make offences prosecuted by indictment and punishable by 10 years that result in bodily harm, involve the import, export, trafficking or production of drugs or involve the use of weapons ineligible for conditional sentence.

I hope all members in the House will support the bill. It is important that this new bill comes forward to control the use of conditional sentencing.

Criminal Code
Government Orders

6:10 p.m.

Liberal

Larry Bagnell Yukon, YT

Mr. Speaker, the member is a very good member and always gives well-researched material. As he has been here so long, I can ask him a harder question because of his experience.

The justice department has some excellent researchers and lawyers on staff who are well experienced. I have asked the same questions throughout this entire debate for all the Conservative members and the justice researchers have not come up with the answers. Why is that? Perhaps it is because, unlike most policy and legislative forming in government, the Conservative government has turned topsy-turvy on justice and the legislation does not come from the bottom up, is not scientifically or evidence based. It comes from the top down, so perhaps there are not answers to these questions.

I will ask the Conservatives one last time to first give a number of examples of situations where the conditional sentence was imposed and did not work properly. Second, when the recidivism rate, the chance of reoffending and hurting Canadians, is less with conditional sentences than those with jail sentences, why would we reduce them in some cases? I am not saying we should not reduce them in some serious cases.

Criminal Code
Government Orders

6:10 p.m.

Conservative

Rick Casson Lethbridge, AB

Mr. Speaker, I appreciate the member's involvement today on this issue, and many others.

Let us look at the issue of the victims for a second. We have situations where crimes are committed and the victims are in the same community where these conditional sentences are carried out.

I want to refer to a third-party quote, which is always good to have. The member opposite can take that for what it is worth. This is from Heidi Illingworth, the executive director of the Canadian Resources Centre for Victims of Crime. She stated:

The current legislation has not sufficiently restricted access to conditional sentences for offenders who commit serious and violent offences, including repeat offenders...Victims feel distress when they see offenders, not only those responsible for their own victimization, but also those who commit other serious crimes, sentenced to ‘house arrest.’ This proposed change will address concerns that some victims and survivors of violent crime have expressed to our organization.

Think of the victims just for a second. When a conditional sentence can be carried out in the same community where the crime was carried out and the victim is still lives there, it has a serious, long-term effect on the stability of the victim.

Criminal Code
Government Orders

6:10 p.m.

NDP

Charlie Angus Timmins—James Bay, ON

Mr. Speaker, the serious concern I have, watching this endless amount of crime bills come forward, is the position is always that the judge should never have discretion. Therefore, there is no discretion in the case of assault causing bodily harm. It could be two guys pushing each other in a bar. There is certainly a difference between that and beating someone up with a baseball bat. There would be no discretion on fraud. They would be thrown in jail. It might be a $100 credit card fraud. There would be no discretion on B and E. I know kids in my community who have committed B and E. Would I throw those kids in jail? Most of them just need some clear direction, which they are not getting.

Yet we see the same government's sense of entitlement, sense of two standards. When one of its friends was caught going 40 kilometres over the speed limit, driving drunk and cocaine possession, what happened? The judge did not take it. The Conservative Party says that we have to allow discretion when it comes to the pals of Conservatives. What is really hard to take is the hypocrisy of the party and its loony views on crime.