Bill C-9 (Historical)

An Act to amend the Criminal Code (conditional sentence of imprisonment)

This enactment amends section 742.1 of the Criminal Code to provide that a person convicted of a serious personal injury offence as defined in section 752 of that Act, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more is not eligible for a conditional sentence.

Criminal Code

[Lynne Yelich, Conservative, 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?

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Mr. Speaker, I will start again, with your permission. I imagine that the clock has been reset for comments.

I am a bit embarrassed to congratulate my colleague again and repeat my thanks for her very clear speech. I am a bit embarrassed, but I will do it anyway.

There was no simultaneous interpretation, but I had mentioned, and I repeat, that she spoke so clearly because of her experience in and extensive knowledge of legal issues.

I also wanted to draw attention to one of her comments about this Conservative government's populist approach. For a few months, we have all noticed that the government's approach is highly populist and very much geared toward law and order, that is, anything that has to do with legal affairs and rather restrictive legislation.

Correctional officers, who work in detention centres, do extremely difficult work with the inmates in these centres.

Yet as of tomorrow, June 1, the Union of Canadian Correctional Officers will have been without a collective agreement for four years. Four years. They work in extremely difficult conditions, as you can imagine. The more experience they gain, the more stress they have.

Ordinarily, you and I should be less stressed by the work we do as time goes by. That is true of most workers in society. But correctional officers are increasingly stressed, because they know what their work involves. They have difficult working conditions and an inadequate pension. They are asking for a pension equal to 70% of their income after 25 years of service, at 50 years of age.

There is a striking dichotomy between what this government says and what it does with regard to correctional officers.

It is nonetheless surprising that the government wants to strengthen prison sentences and increase minimum sentences. I have a question for my colleague. Do studies show that crime is on the rise in Quebec or in Canada? Does repression work? Are there examples from other countries that show that by increasing maximum prison sentences—

[The Acting Speaker, Andrew Scheer]

I am sorry to interrupt the hon. member, but her colleague must be given the time to answer.

The hon. member for Châteauguay—Saint-Constant has the floor.

[Carole Freeman, Bloc, Châteauguay—Saint-Constant, QC]

Mr. Speaker, I would first like to thank my colleague, the hon. member for Saint-Bruno—Saint-Hubert for her comments.

I would also like to congratulate my colleague for her courage in defending the officers of the Correctional Service of Canada. As she pointed out, these people are in a very difficult situation. As she said, as of June 1, they will have been without a contract for four years. We must commend her for all of her efforts to defend the Correctional Service officers.

I must also mention that the Conservative Party is constantly presenting us with right-wing bills that depart further and further from the fundamental values of Quebec and from our preferred approach to rehabilitation. In that regard, I must thank the hon. member for Saint-Bruno—Saint-Hubert for her comments. I agree with her that the Conservative Party and all of its right-wing measures are currently leading us nowhere.

[Ken Boshcoff, Liberal, Thunder Bay—Rainy River, ON]

Mr. Speaker, a long time ago, I started my 22 year career in municipal government, working extensively on task forces. That was one of the first things on which they put me.

We worked on things like vandalism, property crime and crime prevention. As a community, we designed and implemented many anti-crime programs, again at a local or neighbourhood level. These included such things as community policing, neighbourhood watch, Child Find, block parents, Crime Stoppers, and implementing the 911 system. These efforts over the years allowed me to receive the honours of federal and provincial crime prevention awards.

In addition to being mayor, I served six years on the police commission so I believe I have some degree of understanding of this topic as it applies to those who now work in the field. I am not a lawyer so my points will reflect those of a community advocate and not those of a professional barrister.

The initial feedback on the proposed legislation comes from our citizens' intuitive responses. They hear of crime as top news items and consequently conclude logically that crime must be increasing. The strides made by community groups and programs such as I have mentioned, Crime Stoppers, neighbourhood watch, block parents, Child Find and community policing, have worked.

Each of us in the House are keenly aware of the success of all these in the field, or at the neighbourhood or community levels. The numbers, the facts and the evidence are clear. There are decreasing rates in most categories of crimes. Nonetheless, our society's culture of fear makes people feel less safe.

As elected representatives, we dutifully respond to address these concerns of the public. As parliamentarians, we must respect their tangible worries. The Liberal Party and its members represented here have long been notable champions of safe homes and safe streets. We have a long history of finding solutions to effectively deal with crime in its ever evolving creativity.

Bill C-9 seeks to amend the Criminal Code of Canada by mandating that a conditional sentence will no longer be an option for anyone convicted of an offence prosecuted by indictment that carries a maximum prison sentence of 10 years or more.

Are there miracle cures or silver bullets out there? After so many years of governments tackling this issue, federal Conservatives from 1984 to 1993, Liberals from 1993 to 2004 in majority situations and recently with minority governments, one would think there would be some glaringly obvious cure-all. As well, all types of community and professional advocates, whether it be in social work, the criminal justice system, rehabilitation, prison systems, legal professions or the judiciary, have been involved. Bill C-9 is presented as such a cure-all.

The bill's good intentions are regrettably flawed and need review and polishing in committee. This is the logical and reasonable approach to take. This would help take the strident politics out and replace it with improved wordings and effective legislative paragraphs. The question is whether it will actually reduce crime and act as a deterrent. The empirical evidence seems to say no.

We have heard many colleagues from all parties debate this issue and try to come up with numbers that effectively endorse their positions. After it has all been said and done, the thought that we can actually do something with a hammer, rather than improving on the existing and proposed legislation, I believe puts us in a situation where we will end up with something far worse than what we wanted to do in the first place.

Are we being deliberately confused by a law and order agenda that makes splashy headlines but poor public policy? We all want laws that protect the innocent, punish the guilty and compensate the victims. This is a volatile topic and engages people emotionally, which places even more duty upon us to act calmly and responsibly.

The Liberal Party takes the safety and security of Canadian communities very seriously. That is why we introduced Bill C-70 in the last Parliament to address these concerns. The bill was focused on preventing those who are convicted of crimes that cause serious personal injury from receiving conditional sentences.

We do not believe this Parliament should play politics with the Criminal Code. I believe we all want to see a balanced approach and should work together in committee to ensure that the bill does not create unnecessary hardship or expense where it is not warranted.

Bill C-70 would have created a presumption preventing court from using conditional sentences in at least four situations: first, serious personal injury offences as defined in the Criminal Code, such as all forms of sexual assault; second, terrorist activities; third, organized crime related offences; and, fourth, any other offence where the individual case is so serious that the need to condemn the act and not use the conditional sentence takes precedence over any other sentencing objective.

By comparison, Bill C-9 would simply restrict the use of conditional sentencing any time someone would be convicted of an offence prosecuted by indictment that carries a maximum prison sentence of 10 years or more. The implications of this are numerous.

Since the government has chosen to set the bar at 10 years, and only when prosecuted by indictment, there remains a possibility that Crown prosecutors will simply use summary convictions in place of indictment in an attempt to continue the use of conditional sentences. I believe many share the concern that the bill could result in an uneven application of justice.

There is also a difference in prosecution in each of the provinces. Some members already have heard the example that certain provinces charges are laid by arresting officers, whereas in other jurisdictions Crown prosecutors decide on which charges are to be laid.

Sentencing of an offender could sometimes create controversy in our wider communities, especially if the main source of information is through media reports. Conditional sentencing became available in the mid-nineties. Now we have had roughly 10 years' experience to analyze and draw some assessments.

A conditional sentence need not be of the same length as the sentence of incarceration. When someone receives a conditional sentence, it invariably is for a longer period. This is real punishment served outside of a costly prison system.

Again by way of comparison, Bill C-70 was drafted to create a presumption that the courts should not make a conditional sentence order when sentencing offenders convicted of serious personal injury as defined by section 752 of the Criminal Code. Again, I mention terrorism, organized crime and similar types of offences in terms of their severity.

As legislators, we are all aware now that our provincial and territorial counterparts have been expressing their concerns about additional costs that would be incurred if the bill goes through as presented. They would have to hire additional prosecutors, certainly additional court and correctional staff and build new prisons.

The government has not yet effectively or properly outlined its plans on what assistance would be provided to those jurisdictions. It is time to do evidence-based law. We should not play politics with the Criminal Code. We all know that it is simply too vital.

I believe the desire for safe communities is something that we all share. I had mentioned that we all want justice to be fair, but we also need it to be effective.

We should revisit this in committee, rethink it and come up with good legislation.

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, I am pleased to speak to this bill. I have a great deal of concern with the Conservatives' plan for getting rid of conditional sentencing for so many criminal offences, many of them not violent in nature. Many of them are of a kind that could be open to interpretation in the court as to their severity of impact on the general public.

Bill C-9 is what I call retail politics. The bill is a knee-jerk reaction. It will do nothing to rehabilitate criminals and it will not reduce crime. As far as we can see, it is based on not that much information. Not much information has been provided to the House to examine. In fact, due to the relatively recent introduction of conditional sentencing, there are few academic studies that have been completed on its impact on the criminal justice system. Furthermore, there is a dearth of sentencing statistics in Canada. Even Statistic Canada's adult criminal court survey lacks certain data. Therefore, we are not able to assess very correctly the nature of the impact of conditional sentencing on criminal justice.

In 2003 of the 104,000 sentences of custody imposed across Canada, 13,000 were conditional sentences of imprisonment. Of the people who were incarcerated or under supervision in 2003-04, four out of five were being supervised in communities. Many of them were on probation; 11% were on conditional sentences.

It has not been demonstrated to me nor to my caucus that this bill is going to work effectively to reduce crime or to improve the rehabilitation of criminals.

I come from the north. I have lived and worked in small northern aboriginal communities all my life. I worked in the municipal field as a mayor. For many years I had regular correspondence with the police on the types of offences that were present in our communities. As a member of a small aboriginal community, I was able to see the impact of sentencing on individuals over a long period of time and the types of results that came from incarceration versus sentencing that allowed the criminal to stay in the community.

Canada's aboriginal population will be particularly hard hit by this amendment. We see the statistic in Saskatchewan where 60% of the conditional sentences that were handed down in one year were handed down to aboriginal people. Jails in the Northwest Territories and Nunavut are already at peak capacity or overflowing and there is a very large percentage of aboriginal population in those jails.

Last year in Nunavut 200 offenders received conditional sentences and 275 were incarcerated. This is in a population base of about 28,000. One can see the impact that conditional sentencing will have on that small government and its ability to provide justice services to its people.

This month there were 73 prisoners packed into the Baffin Correctional Centre in Iqaluit, a jail designed to hold 40. At the start of this month, Yellowknife's North Slave Correctional Facility for adults, a new jail opened only two years ago, was full. Overflowing jails create environments which are dangerous to guards and inmates.

Also, because these jails are full, northern inmates, many of whom are aboriginal, are being forced into jails in the south, where they do not have access to appropriate cultural rehabilitation programs. They are separated from their families which increases the likelihood that they will not be rehabilitated and will reoffend.

When we look at what is happening right now in the north, we see that in many cases judges and the correctional system want the inmates to remain in the north and not go to the southern institutions, even though they may have received sentences greater than two years. They know that the result of sending these inmates into the higher grade of correction services is they more likely will reoffend.

Is creating situations where offenders are not rehabilitated and continue to commit crimes after release what the Conservatives want? It seems to be, because simply putting more people in jail will only create environments which breed repeat offenders.

Justice is not about throwing people into jail for the purposes of revenge. It is about getting people to return to society and no longer commit crimes.

Canada's north has been at the forefront of developing alternative sentencing arrangements. Many of the communities in my riding have community justice committees that deal with many offences which would normally go before a judge. These committees know the offender and the community and craft sentences to meet the needs of both. Sometimes the committees hand out what would be considered to be light sentences for serious crimes, but the effect is that many of those sentenced through this process do not reoffend.

The committees, also known as sentencing circles, have been copied across the country as an effective means of reducing the level of aboriginal incarceration and reducing the incidence of reoffending.

Eliminating conditional sentences will have a major impact on aboriginal communities across Canada and the north in particular. Already aboriginal people make up a disproportionate percentage of prisoners in our jails. The bill will do nothing but add to that sorry figure.

For aboriginal people, conditional sentences sometimes work better than jail sentences. Recently a Nunavut crown prosecutor said that the reality is that for some people it is more difficult to serve a sentence in their own community than it is to be flown to a jail in Iqaluit, as the community gets to see the punishment.

In many small northern communities there are celebrations when people return from jail, but when they stay in the community, they are seen every day and are forced to deal with their actions with their peers.

In the north, conditional sentences also allow offenders to attend culturally appropriate treatment for problems such as addictions, anger management, mental problems, et cetera. Many of the people in our correctional institutions for very many crimes, and very many violent crimes, likely suffer from fetal alcohol spectrum disorder. In some situations people are being incarcerated where in a more tolerant society we would recognize the actual mental condition that leads to the result that we see.

Every person involved in the justice system will agree that each case before the courts is different and must be tried and sentenced on its own merit. The bill flies in the face of this well-known fact. In order to deal with this fact, judges must be allowed the tools necessary to craft sentences that are most likely to result in rehabilitation.

From their words, it is clear that the Conservatives do not trust the judges in this country. Unlike the United States where anybody who gets enough votes can be a judge, this country chooses its judges from the most respected and knowledgeable members of the legal profession. These people do not operate in a vacuum. They see the reality of the criminal justice system. We should allow those who know best to craft sentences that work best.

We should not deny people the tools that are required to do the job effectively. Why would we deny judges the tools that could make their work correct? Why would we want to do that? Is it just a sense of punishing individuals? Is it a sense of revenge, that the only way we can deal with justice is an eye for an eye?

Sometimes judges get it wrong, but there are mechanisms in place to deal with these mistakes. Crowns can appeal sentences when they feel the sentences are too light. Or if a person commits another crime while serving a conditional sentence, the punishment for that crime will be even more severe.

[The Acting Speaker, Andrew Scheer]

Order. Questions and comments, the hon. member for Hochelaga.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, I thank my NDP colleague for his remarks and for sharing some personal information with us about his municipal involvement and his intimate knowledge of certain aboriginal communities.

He is quite right to make the connection with aboriginal peoples' reality. It reminds me of when I was a law student, although I cannot talk about that as if it were completely in the past. I took a course on aboriginal law, which was fairly new.

I am certain that the older members of this House who studied law did not take many courses in aboriginal law. For a few years now, aboriginal law has received a great deal more attention, and there is certainly a link between sentencing and aboriginal people. Why? Because, unfortunately, aboriginal people are overrepresented in our prisons.

The Supreme Court handed down a 60-page decision in the Gladue case, and I would like to thank my professor for putting it on the curriculum. This is an extremely interesting case that led legislators to include a final paragraph in section 718. This paragraph specifically requires that particular attention be paid to the circumstances of aboriginal offenders and to their history. Obviously, this has not been easy for the courts to interpret.

Does my colleague believe that there should be specific provisions requiring that the history and circumstances of aboriginal offenders be taken into account in sentencing?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, the member's question is a difficult one. We want to ensure that the justice system is very fair. We want to ensure that cultural adaptation in the system is fair to the victims and to all those who have a part in the commission of offences and the subsequent delineation of their punishment.

I look for more weight being given to the judges because they are there to judge. They are there to interpret the law for the people in the communities. They interpret the law so that the people understand what the law is and that the return they get from the system is fair and adequate for every Canadian.

[Olivia Chow, NDP, Trinity—Spadina, ON]

Mr. Speaker, I have a question regarding the cost. The hon. member probably would know that the average cost of keeping a person in jail is anywhere between $52,000 to $100,000 per year depending if there are programs added on. The minimum is about $51,454 per year.

If this bill becomes law, a very minimal conservative estimate of the operating costs would be approximately $250 million. As a former mayor the hon. member could probably tell us if we have that kind of funding to provide support for young people to provide preventive work so that we can keep people out of jail and so that we can provide community support. If we have the funding, what are some of the programs we can support to reduce crime?

[Dennis Bevington, NDP, Western Arctic, NT]

Mr. Speaker, we have not seen that side of the government's response to criminal justice. We have not seen the warm side of dealing with people in their environment to reduce crime and prevent crime from happening. We need youth centres all across the country. We need opportunities for young people to integrate into their communities and their societies comfortably.

To me, alienation from their community is one of the greatest causes of criminal activity for young people and once they are into criminal activity, it can lead them into more serious offences in the future. We need to work more with our young people. That requires money.

We have a real need for youth centres across the north. I have requests on my desk right now to work with people from Inuvik right through to Yellowknife along with smaller communities to get money into youth centres so that we can prevent some of this expensive criminal--

[The Acting Speaker, Andrew Scheer]

Resuming debate, the hon. member for Welland.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I am pleased to speak to Bill C-9 this evening.

Conditional sentencing allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. It falls at a point between imprisonment and sanctions such as probation or fines. The conditional sentence was not introduced in isolation, but as part of a review of the sentencing provisions in the Criminal Code.

These provisions included the fundamental purpose and the principles of sentencing, namely, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principles apply to conditional sentences as well.

The primary goal of conditional sentencing is to reduce the reliance upon incarceration by providing an alternative sentencing mechanism to the courts. In addition, the conditional sentence provides an opportunity to further incorporate restorative justice concepts into the sentencing process by encouraging those who have caused harm to acknowledge this fact and to make reparation. Achieving these objectives is beneficial to society.

At the time of their introduction, conditional sentences were generally seen as an appropriate mechanism to divert minor offences and offenders away from the prison system. Overuse of incarceration was recognized by many as problematic while restorative justice concepts were seen as beneficial. In practice, however, conditional sentences are sometimes viewed in a negative light when they are used in cases of very serious crimes.

Concern has been raised that some offenders are receiving conditional sentences of imprisonment for crimes of serious violence, sexual assault and related offences, driving offences involving death or serious bodily harm, and theft committed in the context of a breach of trust.

While most people would agree that allowing persons not dangerous to the community, who would otherwise be incarcerated and who have not committed a serious or violent crime, to serve their sentence in the community is beneficial, some consider that in certain cases the very nature of the offence and the offender require actual incarceration.

The fear is that to refuse to incarcerate an offender can bring the entire conditional sentence regime and hence the criminal justice system into disrepute. In other words, it is not the existence of conditional sentences that is problematic, but rather their use in cases that seem clearly to call for incarceration.

Often it is an inciting headline and media reports that raise calls of outrage. However, had one sat through the criminal trial, heard submissions on sentence and the reasons for judgment, it is not unusual that a reasonable individual would support the decision.

The provisions of governing conditional sentences are set out in sections 742 to 742.7 of the Criminal Code. They set out four criteria that must be met before a conditional sentence can be considered by the sentencing judge. First, the offence for which the person has been convicted must not be punishable by a minimum term of imprisonment. Second, the sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years. Third, the sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. Fourth, the sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in section 718 of the Criminal Code.

Insofar as the fourth criterion is concerned, among the objectives of sentencing are the denunciation of unlawful conduct, the deterrence of the offender and others from committing offences, the separation of the offender from the community when necessary, the rehabilitation of the offender, the provision of reparation to victims or the community, and the promotion of a sense of responsibility in the offender.

The foregoing criteria were designed to ensure that the most severe cases would not be dealt with by a conditional sentence. In addition to meeting the criteria set out, conditional sentences involve a number of compulsory conditions as set out in section 742 of the Criminal Code.

These conditions compel the offender to keep the peace and be of good behaviour, appear before the court when required to do so, report to a supervisor when required, remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court, and notifying the court and a supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation.

Optional conditions are designed to respond to the circumstances of the individual offender. Such conditions may include an order that the offender abstain from the consumption of alcohol or drugs, abstain from owning, possessing or carrying a weapon, perform up to 240 hours of community service, or any other reasonable condition that the court considers desirable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of another offence.

As an alternative to the possibility of imposing a conditional sentence, a court may suspend sentence and impose a probation order. Section 731 of the Criminal Code indicates that, where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence, and the circumstances surrounding its commission, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order.

This possibility is open to the court only if no minimum punishment is prescribed by law. In many cases, conditional sentences are preferential alternatives to a suspended sentence or probation order, as I have just elaborated.

In a Queen's University study that concentrated upon the victims of crime and their attitudes toward conditional sentencing, the following benefits of conditional sentencing were cited and I find these most interesting: most rehabilitation programs can be more effectively implemented when the offender is in the community rather than in custody; prison is no more effective a deterrent than more severe intermediate punishments, such as enhanced probation or home confinement; keeping offenders in custody is significantly more expensive than supervising them in the community; the public has become more supportive of community-based sentencing, except for serious crimes of violence; widespread interest in restorative justice has sparked interest in community-based sanctions. Restorative justice initiatives seek to promote the interests of the victim at all stages of the criminal justice process, but particularly at the sentencing stage; and the virtues of community-based sanctions include the saving of valuable correctional resources and the ability of the offender to continue or seek employment and maintain ties with his or her family.

The most important case to consider conditional sentencing is the decision of the Supreme Court in Regina v. Proulx. Here, the Supreme Court examined the issue of conditional sentences in a case that concerned a charge of dangerous driving causing death and bodily harm. Prior to this decision, judges had little guidance on when it was appropriate to impose a conditional sentence, outside of the criteria set out in the Criminal Code. The Supreme Court made it clear that a number of changes needed to be made to the way in which the sanction was used. But the judgment also consists of a strong endorsement of conditional sentencing.

The key result of the Proulx decision was that there is no presumption against the use of a conditional sentence if the crime does not have a mandatory period of incarceration.

Objections have been raised to the use of conditional sentences for certain crimes. One example is that of impaired driving. The organization Mothers Against Drunk Driving, MADD, Canada has circulated a petition asking Parliament to eliminate the availability of conditional sentences for those convicted of impaired driving causing death or impaired driving causing bodily harm.

MADD believes that for violent crimes in which persons have been killed and/or injured, a conditional sentence does not adequately address the severity of the crime. There is a perception that the justice system is tilted towards concern for the offender and not enough is said about the value of the human life that has been taken away. These are positions that must be considered as well.

The previous Liberal government introduced Bill C-70, an act to amend the Criminal Code with respect to conditional sentences, to further clarify the appropriate limit to the use of conditional sentences. We took the safety and security of Canadian communities very seriously.

Mr. Speaker, you are indicating to me that my time is over, and I--

[Some hon. members]

More.