An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act

This bill was last introduced in the 35th Parliament, 2nd Session, which ended in April 1997.


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December 6th, 2007 / 11:35 a.m.
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Dr. Julian Roberts Professor, Centre for Criminology, Oxford University, As an Individual

Thank you very much, Mr. Chair.

I've been working in the area of sentencing since about 1984, when I worked for the Canadian Sentencing Commission. I think I have appeared nine previous times before this committee on this issue. If you get a mug for your tenth appearance, I'd like to take it home.

It's obviously a serious problem, there's no doubt about that, and these statistics make it clear. But my question would be, what can sentencing do about this problem? In the testimony yesterday there were a number of obviously interesting proposals: immobilizers, better police surveillance, and so on and so forth.

With respect to sentencing, it's a little bit more complicated, and the role of sentencing as a deterrent force is significantly limited. One of the witnesses a couple of days ago said that Canadians count on parliamentarians to take action about the problems that matter to them, but your job's more complicated than that. You need to take action with respect for the legal traditions of this great country, and within the statutory sentencing framework that was created in 1996 by Bill C-41.

Before you create a fairly stiff—and I'll talk about the level of penalty—mandatory minimum sentence, you need to recall that the role of Parliament is to create a statutory framework to identify important statutory aggravating factors and mitigating factors if necessary, to prescribe mandatory sentences where appropriate, but not necessarily to introduce a minimum penalty every time an offence seems to take your attention.

The Bill C-41 I refer to in 1996 codified the principle of proportionality in sentencing, section 718.1 of the Criminal Code. That principle, of course, as you well know, articulates a guide to sentencing courts, which is that the severity of the sentence should reflect the seriousness of the crime and the offender's level of culpability for the offence. You can't determine that in advance. You can't know in advance the offender's level of culpability; it's something that has to be determined by a judge. A mandatory minimum sentence takes away that judicial discretion.

I know a lot of people are quite skeptical of judicial discretion, but my submission to you would be you shouldn't be so skeptical or afraid of it.

How does this bill violate proportionality? It also violates restraint, by the way, but I probably won't have time to talk about that. By creating a sentence—and we'll look at the third conviction—of at least two years, it effectively creates a disproportionate punishment. You may say, how can it be disproportionate? It's a very serious crime. It is, but go to the sentencing statistics. I think you should take a good, hard look at those. I don't think you should get your sentencing statistics from what witnesses say or what you've heard from auto thieves; get them from Statistics Canada.

I'll give you one statistic here that is quite compelling: 95% of sentences of custody in this country are provincial terms, two years less one day and below. By the way, clause 5 indicates that the third conviction can be part of the same criminal event. So if a guy grabs three Toyota Corollas in one evening he's subject to this provision and to a penalty of at least two years pen time for stealing three cars that could be quite modest cars, and I think that's a disproportionate sentence.

If you think about it, the 5% of offenders in this country are the offenders who have committed the most serious crimes. I'll just ask you whether you want somebody who's stolen three cars—serious though that is—to be among the top 5%. We're talking about aggravated sexual assault, manslaughter, and so on. I think it's disproportionate.

The second thing is of course it's a three strikes law. It's baseball sentencing. What that means is you're promoting the use of previous convictions. The reason why the guy gets pen time, at least two years, two years or more, for stealing those three Toyota Corollas is not because the third Corolla is such a serious theft; it's because it's his third infraction. That's promoting the use of previous convictions way above the seriousness of the incident crime.

So he's stolen a car and he goes to the penitentiary for that because he has had two previous convictions for stealing cars. What you're doing there, of course, is promoting the offender's criminal record way above the seriousness of the crime, and that's a violation of proportionality.

I'll just say a couple of last words and then conclude, because I'm running a little late.

If having these mandatory sentences were to create a great crime prevention effect; if you had all these potential offenders thinking “My God, there's a mandatory penalty now, so let's think about robbing convenience stores instead”, there might be more support for it. But if you're talking about an average age of 14—and we just heard the statistic—for people stealing cars, you have a lot of young people stealing cars, and they're not the most reflective individuals, not the most forward-thinking individuals. They're going to steal cars.

Particularly, by the way, if they're high on drugs they're going to do it without contemplating whether it's six months or eighteen months. You could probably have a mandatory minimum sentence of ten years for the third conviction; it's not going to stop those guys, because they're not going to think about it.

They may be more concerned if they think they're going to get caught. So if there's a police presence around, or immobilizers and alarms, that will deter them, because then it's clear to them that there are some consequences. But they don't think rationally, the way we do. I think there'll be little or no crime-preventive effect.

You may say it's not going to have a great impact upon the number of vehicles stolen, but what's the matter with it? What is the matter with it is, as I say, that it's an unwelcome parliamentary intrusion into the exercise of discretion by a sentencing court, and I think that's regrettable.

I would encourage you to go back to the drawing board to take a look at the sentencing statistics. If they show, by the way, that a car thief with ten previous convictions was getting probation, I'd be a little bit more concerned and would want to do something about the sentencing regime. But I'd need to see the statistics.

The last point I'd make is just that we should of course recall to our minds that committing a crime in conjunction with an organized crime organization is a statutory aggravating factor and will or should result in a harsher penalty anyway. I would encourage you to have a little more faith in the judiciary.

I'm not very favourable to the sentencing proposals in this bill.

Thank you.