Bill C-10 (Historical)

An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act

This enactment amends the Criminal Code to provide for escalating minimum penalties according to the number, if any, of previous convictions for serious offences involving the use of a firearm if the firearm is either a restricted or prohibited firearm or if the offence was committed in connection with a criminal organization, to provide for escalating minimum penalties according to the number, if any, of previous convictions for other firearm-related offences and to create two new offences: breaking and entering to steal a firearm and robbery to steal a firearm.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

When an individual with connections to a gang is the victim of a crime involving a firearm—and Mr. Ménard made reference to this earlier—there are what is known as aggravating circumstances. Let us also look at a different case, where an individual who is not a member of a gang is a victim of an indictable offence in which a firearm was used. So we have two victims: one who was attacked with a firearm because of membership in a criminal gang, and the other a victim of a serious indictable offence even though he was not a member of a gang.

How will the judge react? In the first case, he must do one thing because of the aggravating circumstances; in the other, he is not required to do so.

I'm trying to summarize my question, Mr. Brodeur. From the victim's point of view, I would prefer to be "attacked" by someone who is a member of a gang, because I am sure that person will go to jail longer, rather than by a person who is not a member of a street gang. Something should be mentioned to the judge. Things are always the same for the victim. In some cases, victims will think that the approach is rather lax, while in others, it is rather severe.

In light of what I have just said, do you think Bill C-10 is strong enough to ensure that victims are treated in the same way by the justice system? I have tried to outline my point as best I could.

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

Thank you, Mr. Chairman.

Thank you for coming. This is very interesting. Needless to say, I appreciated you statements. I have practised criminal law as a defence attorney for 25 years and I oppose this bill. I think that my position is clear.

As I have practised criminal law for a long time, I carefully read the brief from the Canadian Bar Association. I had the same question and I want you to explain something to me. Perhaps, Ms. Joncas, you could confirm it for me as well.

As we analyze Bill C-10, it would almost be fair to say that it contains some heresies. In fact, I do not know what came over the minister or his assistants when they drafted this bill, but if we knew, it might help us to understand this. I would like some clarifications on section 1, which amends section 84 of the Criminal Code. If I understand correctly, time spent in custody awaiting trial would not be taken into account for repeat offenders. I do not know whether you are following me.

As you studied this very closely, could you tell me whether I am right in saying that one must be entirely disconnected from reality to take no account of the time spent in custody awaiting trial? I refer specifically to section 1 of the bill, which amends section 84 of the Criminal Code.

I would like to hear what you have to say about this. I would also like to hear what you have to say about time spent in custody pursuant to subsection 719(3) of the Criminal Code and of course about the Supreme Court's Wust decision, whereby the time spent in custody must be taken into account. The legislator has decided to go against a decision made by the Supreme Court! I would like to hear what you have to say about this because to me, it seems entirely divorced from reality.

I would like to hear your opinion on this, Ms. Joncas or Mr. Weinstein; I do not know which one of you two has read this attentively.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Professor, and I appreciate that point. That's certainly not what we are proposing, any mass incarceration.

That is precisely why this bill, Bill C-10, is narrowly targeted at those involved in gang activities and using guns to commit crimes. Not wanting to cast the net too wide, we're focusing very much on what Canadians are telling us are the most serious offences.

I've heard quite a bit of talk about this discretion of judges, but I'd like some comment from the Canadian Bar Association or others. For many of the offences we've listed, and I'll talk about some of the primary offences where it's an escalating five, seven, or ten years, what we're dealing with in the second and third cases, of seven and ten years, is someone who has used a firearm in attempted murder, discharged a firearm with intent, committed sexual or aggravated assault, and so on—what we've found to be the most serious offences—and has done it not only once but twice.

Many people feel that when there's been a recidivist activity, obviously we have to bring in safeguards and start to err on the side of protection of society. When someone has done this once, that's one thing. When they're out and have done it again, it's quite another, in the public's view.

Just so I know what we're really talking about, isn't it the case with many of these offences that there's already a four-year mandatory minimum? What Bill C-10 does, instead of making it a four-year mandatory minimum, is make it a five-year mandatory minimum. We're talking about taking discretion away from judges.

It's been presented, I know, by the opposition—in some cases very alarmingly—as that we're narrowing the discretion of judges. But what we're doing with this bill is saying that on these most serious offences, on a first offence, instead of four years, it's five. Is that not the case?

[Sandra Elgersma, Domestic Policy Analyst, Mennonite Central Committee Canada]

We'll both be presenting, but I'll lead off.

The Mennonite Central Committee of Canada is the relief, development, and peace-building arm of the Mennonite and Brethren in Christ churches in Canada. In the area of justice, we have a long history of programs that work with victims, programs that work with offenders, and programs that bring the two together in dialogue. We thank you for inviting us here today.

MCC envisions a criminal justice system where human realities are taken into account. Communities play a strong role in addressing justice, and a variety of alternatives exist to ensure that victim needs are met, that offenders take responsibility and have the opportunity for rehabilitation, and that harm is repaired.

This vision conflicts in several ways with Bill C-10. Taking into account the human realities of guns and gangs calls for a much broader response than the sentencing provisions proposed here; however, even these provisions cause us some concern. As we have already heard today, mandatory minimums reduce judicial discretion, which is important for responding to human realities and creating community alternatives.

Additionally, the increased use of incarceration has undesirable affects. It limits opportunities for victims to receive restitution and other forms of restoration. As crowding becomes a problem, incarceration limits opportunities for offenders to leave jail with more life skills than they went in with.

Longer sentences create greater difficulties for successful integration into community life. Increased use of incarceration leads to these negative effects, while at the same time it has no positive effect on reducing the crime rate.

Today we'd like to speak to you of our own experience with deterrence and community safety, both strong themes in the justification of Bill C-10. In previous appearances before this committee, we have talked to you about our program of circles of support and accountability; today we're going to elaborate on that experience.

[Joshua Weinstein, Secretary, National Criminal Justice Section, Canadian Bar Association]

Thank you.

While the criminal justice section supports measures to address violent crime rates, such a call to action must be acted upon using only measures that are both fair and effective. This section opposes the use of mandatory minimum penalties. Any action must proceed only if it is likely to achieve the goal of public safety and is at the same time consistent with what I'll call the three Cs: charter, common law, and Criminal Code--specifically, the principles of sentencing. We oppose the use of mandatory minimum sentences because they limit a judge's ability to fashion an appropriate sentence and they distort sentencing principles established by the Criminal Code.

Now, let me start with the judge's ability to craft a just sentence. You've had, I think, criticism in the past before this committee about the “one size fits all” approach. As someone who is 6'8", I can tell you that's not always the case.

Our section has faith in the judiciary, who are charged with the often difficult task of weighing a number of considerations when imposing a just sentence. They are guided by both common law principles, the charter, and again, the principles of sentence as outlined in the code. But let me go further. They're in the unique position of being able to address the just punishment not only based on the principles of sentence, but also taking into account the specific circumstances of an offender, the circumstances of the offence, and the particular community of the offender and the victim.

In addition, given Canada's track record of over-incarceration of aboriginal peoples, section 718.2 was a tool put in place to require judges to look at such options when sentencing aboriginal offenders. The bill would have the effect of taking away such a requirement and would amplify the current problems of over-incarceration of aboriginals. If a particular offence warrants a lengthy penalty, the sentencing judge already has the tools to impose the appropriate sentence. It is our section's experience that gun crimes already receive lengthy sentences.

Bill C-10 has the potential to distort a number of sentencing principles. One of those principles is proportionality--that is, that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Bill C-10 would set the floor of sentencing for all offenders, even those whose degree of responsibility is towards the lower end of the spectrum.

The Criminal Code also recognizes the principle of restraint--that is, that we restrain ourselves from jailing an offender unless it's necessary to protect the public. As outlined in our written submission, and as I present to you today, the criminal justice section believes that mandatory minimum sentences do not advance the goal of deterrence.

Other goals of sentencing, particularly denunciation and rehabilitation, are also principles a judge must consider. In the indiscriminate application of mandatory minimum sentences for all offenders, a judge is limited in fashioning a rehabilitative sentence for an offender who would benefit from such a disposition.

Now, it's also our opinion that Bill C-10 would not improve justice efficiencies and would most likely lead to lengthy delays within the criminal justice system; more trials, given the higher stakes; higher incarceration rates; and more jails. This obviously all comes at a higher cost to the public.

Clause 9 of the bill would create two new offences: breaking and entering to steal a firearm, and robbery to steal a firearm. While theft of firearms already constitutes an aggravating factor on sentence, what the proposed amendment would likely do is create another hurdle for crown prosecutors to prove. To prove that the accused specifically intended to steal firearms would require very compelling evidence of intent, which often isn't the case unless there is an admissible statement by the accused or co-accused.

Now, another aspect of the bill that our section submits is a problem is the sheer complexity of its provisions in calculating the applicable sentence. I have read with great interest background information before appearing in front of you today. The debates have, I believe, illustrated this point. It is not just my inherent inability at doing simple math that is the source of the confusion, but the scheme itself, which in our opinion lacks cohesion and is just outright complex. If our section had difficulty in winding through the maze, imagine what it would be for those individuals we want to send a message to.

Now, our section wants to also bring to your attention a very real phenomenon that is actually occurring already, whereby sentencing discretion is being transferred to the Crown. When an accused is facing a mandatory minimum sentence, the negotiations between Crown and defence cease to become plea bargains; rather, they're charge bargains.

Let's say an individual is charged with discharging a firearm with intent. The Crown will agree to reduce the charge in exchange for the accused's pleading guilty, thus securing a conviction, while at the same time allowing the accused to avoid jail time. However, the charge bargaining process relies on Crown discretion. While meaning no disrespect to prosecutors, an accused is more likely to buy into a process that has as its pillar an independent arbiter exercising discretion rather than a representative of Her Majesty.

The second problem is that such a process dilutes the intention of things like the present legislation, instead of being tough on crime, as an accused comes out of the process with not only a potential lesser sentence, but a lesser offence. Eliminating mandatory minimums may very well have the effect of such an accused receiving the appropriate sentence, but still within the framework of the charge as originally laid.

Our section urges this committee to reject this bill. While the bill strives to achieve the goal of protection of society, a goal we share, it does so in a manner that won't have the intended effect and will lead to injustices.

Thank you very much.

[Tamra Thomson]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association welcomes the opportunity to present our comments to you today on Bill C-10.

The CBA is a national organization that represents 37,000 jurists across Canada, and among our objectives is improvement in the law and fair justice systems in Canada.

The submission before you today was prepared by the national criminal justice section of the CBA. It's interesting to note that the members of that section comprise both defence and crown counsel and university professors who teach criminal law. In that sense it brings a balance of multiple perspectives to the review of the law.

I'm going to ask Mr. Weinstein to give the comments on the particular aspects of Bill C-10.

[Lucie Joncas, President, Association québécoise des avocats et avocates de la défense]

Hello.

The Association québécoise des avocats et avocates de la défense is a not-for-profit association composed of 600 criminal defence lawyers practising throughout all regions of Quebec. Our members include private practice lawyers as well as those working for the Commission des services juridiques. I have had the honour of serving as president of the association since June 2005. I have been practising mainly in the field of criminal law for almost 15 years now.

First off, the AQAAD would like to thank the committee for this invitation to appear. I hope my remarks will be useful to you in the course of your deliberations.

It seems troubling to read the May 1, 2006, press release that states the objective of these new dispositions. It says that mandatory minimum penalties will ensure that sentencing is proportionate to the seriousness of the offence that involves guns and gang violence.

The aim is obviously a direct attack on judicial discretion. It is my belief and experience that judges in Canada are currently imposing just and proportional sentences. Furthermore, the concern with gang-related offences is already the object of a specific sentencing provision of the Criminal Code, namely subparagraph 718.2(a)(iv). It is considered an aggravating factor on sentence that an offence is committed for the benefit of, or under the direction or association with, a criminal organization.

The AQAAD is in agreement with the statement found in the legislative summary of Bill C-10: “Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case.” It is generally recognized as a principle, and is borne out by my experience as a defence attorney, that the deterrent effect is triggered by the fear of being apprehended rather than by the existence of harsh sentences.

The Canadian crime rate does not require these legislative changes. The American example has served as an eloquent example of the ineffectiveness of such measures.

Moreover, the new wave of bills your committee has dealt with and those it will be considering, such as Bill C-9, and reverse onus for dangerous offenders, to name but two, may have a domino effect. We would like to draw this to your attention because we believe it is a possibility you should consider. Allow me to explain: the combined effect of these measures will have a direct impact on the justice system's ability to deal with cases within a reasonable timeframe, as provided under the charter.

These provisions will also effectively short-circuit the case settlement process. At the moment, as a general rule, approximately 90% of criminal charges are resolved through guilty pleas, and a number of these guilty pleas are accompanied by joint submissions. These figures may drastically change as a result of so many legislative amendments. Consequently, the number of individuals in pre-trial detention will increase, thereby increasing the burden on provincial resources.

We must remember that under sentencing in Canada, if the crown finds a sentence too lenient, it is always at liberty to appeal. Conversely, this same right would be denied under mandatory minimum sentences when the defence believed that given the circumstances of the offence and the offender, a sentence was clearly too harsh.

We consider that these legislative amendments are not necessary, and feel that they will have a significant negative effect on the criminal justice system. Finally, as an alternative—and I repeat, as an alternative—if the committee were to come to the conclusion that the proposed sentences may be useful as guidelines, we would suggest an amendment to section 718.3 of the Criminal Code, an amendment calling for residual judicial discretion. Under special circumstances and when it is in the interest of the community and of the accused, judges could exercise their discretion at the time of sentencing.

I thank you and I am now prepared to answer any questions you may have.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order.

Our agenda is still on Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act.

We have a number of witnesses appearing today: the Quebec Association of Defence Lawyers; Mr. Jean-Paul Brodeur, as an individual; the Canadian Bar Association; and the Mennonite Central Committee Canada.

I would like to proceed along the lines as noted on the agenda. I turn the floor over to the Quebec Association of Defence Lawyers and Ms. Lucie Joncas.

Ms. Joncas.

[Alan Borovoy]

Your comments glossed over something rather important when you talked about recidivism and what that would attract under Bill C-10. You somehow managed to exclude the police officer I was talking about from the sweep of Bill C-10. I'm suggesting to you that if that officer were convicted today--first offence, good record, committed while he's chasing a fleeing burglar--he would have to go away under Bill C-10 for at least five years.

I will have to put my question to you in the same way I put it to Mr. Kramp. Whether it's responded to here or in the next life, I don't know, but suffice it to ask you whether you would be pleased to see that officer mandatorily jailed for five years.

There's something else—

[Alan Borovoy]

All right, I will ask you the question. Would you be pleased to have that police officer locked up for five years? That's what Bill C-10 would require.

While I'm at it, do you have no objection at all to the fact that Robert Latimer continues to languish in jail for a crime committed out of love and compassion for his little girl?

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

No, my colleague Mr. Petit made a statement I do not agree with, and I wanted to talk to you about it before putting my questions.

It concerns the statistics in the brief by the John Howard Society of Canada, regarding the correlation between unemployment and robberies committed between 1962 and 2000, the figures you reported. The statistics should be examined more closely before that correlation can be assumed. Nineteen eighty to 1983, as it happens, were the years in which the number of robberies was highest and in which the unemployment rate was also very high. Unless we were living on another planet, we all know what happened in Canada during that time. The number of robberies was also high between 1989 and 1992, and 1993, and perhaps in 1994 as well.

We also had to be living on another planet to claim that unemployment insurance is the only factor at play here. You are quite right in saying that when the economy is doing well, crime rates drop. However, the economy is only one of the factors that need to be taken into account.

I am putting this question to any of you who might wish to answer. I have not heard much about the impact Bill C-10 might have on the increase—and I am choosing that word carefully—in racial prejudice we find in our prisons.

I am talking about penitentiaries, because it is penitentiaries I know about. In fact, I even met with you at the Leclerc detention centre.

[Sue Barnes, Liberal, London West, ON]

The other thing is prosecutorial discretion, which is not visible to the public, as a judge would be in a courtroom in sentencing. Here in Bill C-10 right now, there are a number of hybrid offences that are noted. If the Crown proceeds by way of summary conviction, as opposed to indictable, then there are mandatory minimums coming into play.

Mr. Borovoy, go ahead and tell me what you think of the prosecutorial discretion.

[Alexi Wood]

Yes, I would agree with that statement. When you look at the way the bill is drafted, such that you have a selection of different offences from which you can proceed, and the sentences vary according to whether it's a first offence, a second offence, and so on, then yes, you are going to have that opportunity to change how the sentencing would happen, based on how the Crown chooses to proceed.

I'd also like to confirm what my friend here was saying about the mandatory minimum depending upon what type of gun is being used, or whether or not a gun is being used at all. Bill C-10 ups the mandatory minimums that were already present in the Criminal Code for when a firearm is used. But if a machete, for example, were being used, there is no mandatory minimum for several of the offences, as my friend was illustrating during his comments.

[Laurent Champagne, President, Church Council on Justice and Corrections]

Hello, my name is Laurent Champagne and I am the President of the Church Council on Justice and Corrections. I also work for Correctional Services of Canada, as an institutional chaplain at the Leclerc facility and at the Aumônerie communautaire de Montréal, as a coordinator. I work with some 15 partners.

Although we share the government's concern with ensuring the safety of Canadians, we would however like to point out that harsher sentences have no deterrent effect on offenders and no effect on recidivism. The American experience has been eloquent on this point. Mandatory minimums would only serve to provide Canadians with a false sense of security, because sentence length and decreased crime rates are independent variables. There is no causal relationship between the two. We would like to remind you that there has been a drop in the crime rate in Canada, based on a Statistics Canada study.

Bill C-10 would also hamper the social reintegration of offenders. Excessively long incarceration may jeopardize an offender's chances at a successful rehabilitation, because it is crucial to allow offenders to re-enter society when they are prepared to take this step in the process. If offenders remain in custody despite that, their chances at reintegration may be compromised.

Finally, we are very concerned by the possible effect Bill C-10 may have, in particular on the Canadian criminal justice system. This bill undermines one of the basic tenets of our legal system, the principle of the individualization of sentences. This principle allows for the consideration of multiple factors and for an in-depth assessment which serve in the determination of a fair and appropriate sentence, based on individual needs.

Moreover, this bill strikes a serious blow to judges in terms of the trust they are granted. By eliminating judicial discretion in sentencing, the government is removing some of the judiciary's discretionary tools. However, are judges not in the best position to decide on a fair and appropriate sentence and to assess an offender's ability at social reintegration?

The Church Council of Justice and Corrections of Quebec's mission is to promote preventive and restorative justice, based on Christian values, by working with legislators, offenders, victims, communities and society through research activity and support for groups and individuals in their quest for growth.

With respect to legislators, we work with provincial and federal governments.

With respect to offenders, our work centres on all forms of support to individuals, be they accused or not, detained or formerly detained.

Victims play a very important role. This overlooked group of individuals deserves special attention if we want to ensure full offender reintegration.

The community is defined as individuals living within a specific area who share an awareness of situations of conflict. These individuals are aware of their own value and of a social responsibility to recognize the facts.

When it comes to society, we wish to mobilize a variety of political forces and their power to address the issue of globalization in order to promote the spirit and the letter of preventive and restorative justice.

This year, Correctional Services of Canada celebrated Restorative Justice Week. We discussed innovative partnerships and strong cooperation. It is on this basis that the Church Council on Justice and Corrections works with its various partners.

I had an opportunity to live in Latin America as a missionary for 15 years, and I can say that Canada is a peaceful and safe country compared to many others. We are proud of this peace and of this safety. However, the growing indignation in society about the effects of crime are concerning to all of us. We have witnessed the suffering felt by so many victims of crime. We feel compelled to seek out a justice system which treats crime in an honest and fair manner, and which contributes to healing individuals, families and society as a whole. Fear and indignation undermine our collective well-being and social fabric.

The growth in the prison population indicates that incarceration is too often regarded as the solution to social and criminal problems. Although it is important to recognize the genuine need to protect ourselves from certain offenders who represent an immediate risk to society, we must also admit that incarceration as a punishment is a costly and exacting type of justice which is clearly ineffective as a deterrent. The rate of recidivism is also a sign of incomplete healing and rehabilitation among offenders. Victims' needs for healing and safety are not being met. To address these issues, overly simplistic measures based solely on the desire to appear tough on crime will not lead to the desired results, because our society as a whole cannot heal until offenders, victims and society in general experience healing.

Our current justice system as it is applied does not work. Suffering and fear continue to grow. We believe that the search for genuine and satisfying justice will forever be linked to the spiritual growth of the individuals involved. Conversely, over-incarceration, which is so typical of a vengeful spirit and repressive mentality only harden the soul of this country.

Under the amendments proposed pursuant to Bill C-10, the following situation could occur. A person carrying a loaded long gun like a hunting rifle commits a robbery in a convenience store, for instance. He has a long criminal record which includes many previous firearms-related guilty pleas. Under section 344(1)(a.1) he would be punishable by a mandatory minimum sentence of four years.

Another person commits a robbery under similar circumstances, but carries an unloaded handgun. It is a first offence and the person has no criminal record. In this case the offender would receive a mandatory minimum sentence of five years, under section 344(1)(a). The same provision would apply if instead of robbery, the offence was sexual assault, kidnapping, hostage taking or extortion.

This proves that the length of mandatory minimum sentences under the bill depends on the legal status of the firearm in question rather than on the actual danger to the public caused by the offence. An unloaded handgun is considered more serious than a loaded long gun, shotgun or hunting rifle, regardless of the actual circumstances of the crime or of the offender's actions, the actual harm caused or any victim-related considerations.

The specific technical details of this bill would add insult to injury by maintaining mandatory minimum sentences in Canada long after the 1987 Canadian Sentencing Commission, and all other commissions having considered the matter over the last 50 years, recommended abolishing all mandatory minimum sentences—fines and custodial sentences—for all offences, except murder and high treason. These grounds are all well documented, as you must know, and this basic criticism has remained unchanged.

When judges must contend with mandatory minimum sentences, they cannot consider the context within which an offence was committed, in other words the seriousness of the crime and the situation the person who committed it was in, in order to consequently mitigate the sentence. As highlighted in the commission's report, mandatory minimum sentences can lead to cruel and unusual punishment, arbitrary imprisonment and serious concerns with respect to liability during the legal process. Under mandatory minimum sentences,

[...] discretion would not be exercised as overtly and would be transferred from judges to crown prosecutors and the police. The Crown would not exercise its discretion to decide which charge would be considered in a public hearing, but rather it would do so unilaterally, through plea bargaining which only judges are privy to, and of which the public are largely unaware.

This was a quote from Mr. Renate Mohr, criminal lawyer and former president of the Church Council on Justice and Corrections in Quebec.

Lastly, those sentences pose yet another significant problem, in that they are against the principle of using imprisonment as little as possible, a principle to which the Church Council has been committed for a long time.

Last week, I took part in a conference entitled "What works in the Community Reintegration of High-Risk Offenders." I have today brought those elements I considered most significant. Victims and offenders worked together on the conference, in an effort to work together to achieve community reintegration.

Thank you.

[Graham Stewart, Executive Director, John Howard Society of Canada]

Thank you, Mr. Chair. I'm pleased to be here again to speak to this particular legislation.

The John Howard Society is a national charity comprising those who believe an essential component of community safety lies in social measures that serve to reintegrate those who have offended into the community as law-abiding citizens. We're located in 60 communities across Canada. Our mission is effective, just, and humane responses to the causes and consequences of crime.

Crimes committed with guns are very serious. Even when no injury occurs, the potential for injury or death is high. The Criminal Code and the courts clearly take such offences very seriously now.

It is not for the John Howard Society of Canada to propose what the sentences for gun crimes should be. It is our position that sentencing is an individual process that must reflect the specifics of the offence and the offender. The John Howard Society of Canada is making this submission in order to express its view regarding who should set the nature and quantum of a sentence and identify the principles on which those sentences should be based.

In particular, the John Howard Society believes that the principles of sentencing found within the Criminal Code are substantially correct and give sufficient and appropriate guidance to the sentencing court. The sentencing courts, with reviews through appeal to the Supreme Court of Canada, are competent and the only bodies capable of establishing appropriate and just sentences within the principles established by Parliament. There is neither need nor benefit to be derived from imposing particularly severe sanctions on every case for gun crimes beyond those sanctions already imposed today. Data do not support the notion that gun crime rates are growing at alarming rates, except in very particular circumstances and locations. Research over many years shows conclusively that neither the deterrent nor incapacitative intentions of higher penalties are likely to have a significant or cost-effective impact on gun crime rates. And finally, the new expenditures associated with the proposed mandatory minimum sentences could be spent much more effectively to reduce crime generally, including gun crime, if directed towards preventative initiatives.

Severe mandatory minimum sentences conflict with the most important principles of sentencing. Mandatory minimum sentences, particularly when they involve long periods of incarceration, are incompatible with the fundamental principles of sentencing as set out in section 718.1 of the Criminal Code, that being that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Under Bill C-10, penalties could increasingly become arbitrary and excessive. Parliament cannot consider individual circumstances, and without such consideration, the penalty becomes arbitrary, particularly as the severity of the mandatory minimum penalty increases. This point is reflected by Chief Justice Beverley McLachlin when she said that “Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender.”

Confidence in the justice and political system will decline. The Government of Canada should not take action that would promote and reinforce unfounded distrust of our judiciary. If the judicial system of courts and appeals cannot be trusted to give appropriate sentences within current principles and precedents, then it would be difficult to explain why they should be trusted in any other circumstances.

Respect for the criminal justice system will never be achieved by measures that breed distrust of our judiciary. Measures that would eliminate the discretion of the court and replace it with one that is inherently arbitrary cannot generate public confidence in either the judicial or the political systems.

Harsh penalties encourage greater recidivism. When the impact of Bill C-10 runs its course, the same number of gun offenders will be released each year from prison as is the case today. Having served longer sentences, those being released from our prisons will likely be much more difficult to reintegrate into society. We will have fewer resources to either prevent crime or rehabilitate offenders. They will be more likely to offend again.

The introduction of new mandatory penalties will be increasingly difficult to control. If mandatory minimums work for one offence, why not all offences?

Thanks to the escalation in the use of mandatory minimums in the United States, they now have five to eight times the incarceration rate of any other western industrialized country. Canada has created a just and peaceful society. With an incarceration rate that is one-seventh that of the United States, we should be reluctant to adopt their approach to sentencing now.

Discretion will shift from the judge to the crown or even the police. In a study for the Department of Justice, Thomas Gabor concluded:

There is no evidence that either discretion or disparities are reduced by...[mandatory minimum sentences]. While judicial discretion in the sentencing process is reduced (not removed), prosecutors play a more pivotal role as their charging decisions become critical.

Canadian experience does not show that harsher penalties reduce crime. Because of our principles of sentencing primarily, Canada benefits from a substantially lower rate of imprisonment than the United States, where mandatory minimums have become common. This was not always the case.

Looking back 30 years, the incarceration rate in Canada was at 90 per 100,000, as compared to the United States, which was 149. Today, the incarceration rate in Canada is 108, while the incarceration rate in the United States has soared to 750.

One might expect that if incarceration prevented crime either through deterrence or incapacitation, these stark differences in incarceration rates would lead to very different crime patterns over time. In fact, this is not the case. Crime fluctuations in Canada and the U.S. have remained surprisingly similar. Property crime is about the same between the two countries, while serious violent and in particular gun crimes in the United States have remained consistently much higher than in Canada.

The variation in gun crimes between cities in Canada is substantial. The fact that between and even within cities there are often huge differences between neighbourhoods in rates of gun crimes cannot be explained by the existence of tougher sentencing in the low-crime neighbourhoods.

Most research does not support the effectiveness of mandatory minimum sentences. Academic studies that challenge the theory that harsh penalties reduce crime abound. A large-scale review of the United States experience with enhanced sentences for gun crimes involving data from nearly all states over a 16- to 24-year period concluded that several small-scale studies have suggested the laws might reduce some types of gun crimes. We found the laws produced such an impact in no more than a few states, and there is little evidence that the laws generally reduce crime or increase prison populations.

Similar studies have occurred in Virginia and Florida, and in California the experience is interesting. Crime rates have moved in opposite directions between young and adult offenders, even though adults were subjected to severe mandatory minimum sentencing provisions and much higher levels of incarceration. With youth in California the opposite occurred. The incarceration rate and the crime rate of youth in California is the lowest it's been in 30 years.

In Canada, a large meta-analysis of all valid research conducted over 50 years in North America that tested the impact of sentence length and recidivism found that the type of sanction did not produce decreases in recidivism. There was no differential effect of the type of sanction on juveniles, females, or minority groups. Thirdly, there were tentative indications that increasing lengths of incarceration were associated with slightly greater increases in recidivism.

Canadian criminologists Antony Doob and Cheryl Webster published an exhaustive review of the international literature over several decades. They concluded that harsher punishments do not deter crime.

Deterrence-based sentencing makes false promises to the community. As long as the public believes that crime can be deterred by legislatures or judges through harsh sentences, there is no need to consider other approaches to crime reduction.

Trends with gun crimes in Canada do not support the need for harsher punishments. Data produced by the Department of Justice in January 2006 show startling and presumably reassuring trends, including the fact that the homicide rate in Canada dropped between 1974 and 2004 by 25%, while firearm homicides dropped even further during that period, with a drop of 54%.

Firearms used in robbery dropped 53% between 1974 and 2004, and dramatic declines in virtually all violent crimes were recorded over the last 15 years, with a combined drop of 60%.

While these changes are dramatic and positive, very recent data from Statistics Canada shows that in the last two years there's been an increase in gun-related homicides in a few major centres. As troubling as this may be, these changes can not be explained by different sentencing practices in those centres and are unlikely to be addressed through sentencing measures.

In conclusion, all of the above gives rise to the conclusions articulated in our submission that principled sentencing can not be achieved through severe and arbitrary mandatory minimums proposed by Bill C-10. Neither does the evidence suggest that such measures will reduce gun-related criminal activity.

Thank you.