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

[John Maloney, Liberal, Welland, ON]

Maybe we could have unanimous consent for me to continue, Mr. Speaker.

[The Acting Speaker, Andrew Scheer]

It being 5:44, the House will now proceed to the consideration of private members' business as listed on today's Order Paper.

The House resumed from May 31 consideration of the motion that Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), be read the second time and referred to a committee.

[The Deputy Speaker, Bill Blaikie]

The hon. member for Welland has two minutes left in his debate.

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, I just want to continue with the balance of my address on Bill C-9.

The previous Liberal government introduced Bill C-70, which was an act to amend the Criminal Code with respect to conditional sentences, to further clarify appropriate limits on the use of conditional sentences because we take the safety and security of Canadian communities seriously.

Those reforms would have created a presumption preventing courts from using conditional sentences in cases of serious personal injury offences as defined in the Criminal Code, such as all forms of sexual assault, terrorist activities, organized crime related offences and any other offence where the individual case is so serious that the need to condemn the act and not use a conditional sentence takes precedence over any other sentencing objective.

By comparison, the Conservative bill, Bill C-9, which is currently being debated, simply restricts the use of conditional sentencing at any time someone is convicted of an offence prosecuted by indictment that carries a maximum prison sentence of 10 years or more. As a result, the Conservative bill affects a number of Criminal Code offences that our bill would not have impacted.

The implications of the bill are numerous. Since the Conservatives have 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 an indictment in an attempt to continue the use of conditional sentences.

There is also a concern that the bill could result in an uneven application of justice across Canada. Aboriginal communities would be notably affected by the bill. There is also a difference in prosecution in each of the provinces. For example, in certain provinces charges are laid by arresting officers, whereas in other jurisdictions crown prosecutors decide on which charges are to be laid. These are unintended consequences that must be addressed at the justice committee during consideration of the legislation.

We look forward to the legislation going to committee where it can be objectively analyzed in conjunction with expert opinions on its merits or negatives and, where necessary, appropriate amendments being made. The legislation, with a little more reflection, has the potential to help contribute to safer streets and communities. This is a worthy objective of all members of this House.

[Dick Harris, Conservative, Cariboo—Prince George, BC]

Mr. Speaker, I want to respond to a statement that the member made about his party when it was in government and its intention to introduce an amendment to the conditional sentencing legislation that it had previously introduced four years before.

I find it very strange that the member has forgotten that when the conditional sentencing provisions were first introduced by the Liberals, members of our party, when we were in opposition, stood in the House day after day during debate warning and pleading with the government to eliminate the possibility of conditional sentencing for those who committed violent criminal offences. The minister of justice at that time and the member's colleagues stood in the House and said that conditional sentencing legislation would not apply to violent criminal acts and that we should trust them. They had a majority at that time and the legislation went through.

Can anyone guess what happened? We saw people who were committing violent criminal acts being handed conditional sentences time after time. It was only as we were approaching the 2004 election that the Liberals decided that they had better start listening to the citizens of this country who wanted safe streets and communities and said that they would bring in amendments. They could have done all of that in their first introduction of the bill.

Why did the member's government at the time purposely allow that violent criminal acts could be subject to conditional sentencing, which his party put into the initial legislation?

[John Maloney, Liberal, Welland, ON]

Mr. Speaker, it was in 1995 when the former Liberal government brought in conditional sentencing. The general consensus at that time was that it was an appropriate measure in measured circumstances.

When we are talking about violent offences, we are not at the trial of the accused. We are not listening to the arguments of the prosecution or the defence counsel or the reasons for the decision of the judicial advocate at the time. Media reports hype up a lot these situations. On the face of a bold headline, it may seem horrendous to all of us but when we get right down to the nitty-gritty, perhaps it was an appropriate disposition in the circumstances. Each case has to be looked at on its facts. Each case is different and separate. We cannot just look at the headlines of a case.

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, I am pleased to speak today on this bill. As my presentation will show in detail, two conceptions of justice are clashing with each other. This will be made clear in concrete terms.

On the one hand, there is the tendency that has developed over a number of years to promote rehabilitation and allow individuals who have made mistakes to be judged accordingly. Ultimately, they are given a chance to change their ways and re-enter society.

On the other hand, there is the view that harsher sentences would deter crime. However, studies show that that approach does not work. It is copied from a model imported from the United States. One need only look at the results in the United States, where they make an excessive use of imprisonment. At the end of the day, incarceration is very expensive, does not solve the rehabilitation issue and fails to curb crime. In Quebec and Canada, crime is down.

With Bill C-9, the government is hoping to eliminate conditional sentencing, particularly for sentences of ten years or more. In such cases, the judge will no longer have the discretionary power to decide whether a conditional sentence is appropriate or not. Judges are there to make a judgment of conviction, but they also have to determine the most appropriate sentence. So far, they have had that leeway and they have used it correctly.

The government is proposing that this leeway be taken away from the judges. I believe that judges should have that possibility. For example, many offences in the Criminal Code carry a sentence of imprisonment of ten years or more, requiring the prosecutor to take criminal action. I will list a few for which I find the position taken in the bill absurd.

First, there is theft over $5,000. Today, a young person may commit such a crime but may not be sent automatically to prison, to crime school, for 10 years. If he is sent to prison, then he may commit more serious thefts when he is released, because he will have been in contact with inmates for 10 years. Under the circumstances, the judge could decide that there are other solutions. Alternate solutions have been used particularly for minors and have helped correct behaviour. Often, we learn more from people who, in therapy, show us the negative impact of what we have done. In the end, it is possible to correct our behaviour.

There is also mail theft. Imagine that a few young people aged 19 or 20 commit this offence. Today, they should be aware of their responsibility. Sending them to prison automatically, with no possibility of a conditional sentence and without allowing the judge to take the circumstances into account, may not be the best solution. In this situation, the judge should clearly be given this flexibility.

Judges are skilled at what they do and have training they can augment with specific courses. They have this responsibility in our society. In my opinion, we have to give them the necessary latitude to do their jobs, especially since criminologists have long agreed that stricter sentences do not reduce the number of offences. There are hardened criminals, but there are also occasional criminals, people who exercise poor judgment and make the wrong decision in a given situation. Longer sentences do not lead to less wrongdoing.

We need to take a more realistic attitude, set aside the ideological approach and look at the results. The results show that, in real life, giving judges the option of imposing conditional sentences gives them the opportunity to facilitate rehabilitation. It is important to move in this direction.

Cost is another important factor. Many more people will be incarcerated, which will generate additional costs. In the end, in addition to the social consequences and the missed opportunities for rehabilitation, this will mean needless extra costs in terms of results. In my opinion, this is another reason why the government should go back to the drawing board.

Nonetheless, the bill as presented is not acceptable.

I want to come back to other examples that currently call for sentences of 10 years or more and that, if this bill is passed, will no longer be automatically eligible for conditional sentencing. I am talking about the use of forged passports, among other things. Fraudulent use of passports is a serious offence. However, let us say a 20-year-old living near the border has a twin brother who decides on a whim to borrow his passport. Under current legislation, the judge is able to weigh the seriousness of the action and determine the best punishment. If we pass this bill, that person will automatically have to serve 10 years in prison. I find this is excessive and that it needs to be corrected.

In reality, since 2000, conditional sentences have become longer. Judges have considered the reality and the application conditions have become stricter. People have learned to live with the possibility of conditional sentencing and the conditions to be met are very clearly expressed. This ensures that there is no risk to the people involved in the crime for which the person was convicted. It also ensures that the offender is not put in a situation that promotes this. This type of situation is prevented by increasing the number of house arrests.

Let us not focus on exceptions that unfortunately make the headlines. At the end of the day, we have to look at the big picture. In our society, rehabilitation as a whole has been positive and it must continue that way. We must not send the message that we are now changing direction and that rehabilitation no longer interests us by handing down sentences and sending people to prison. If we did we would have to accept the fact that they come out still criminalized or maybe even more so than they were before.

In certain cases the judge might find that the maximum sentence absolutely applies. Being allowed to use conditional sentencing does not preclude the possibility for a judge to decide that the appropriate sentence is truly the maximum sentence under law. This possibility still exists. Nonetheless, this bill will not give the judge any flexibility on the other end of the spectrum when a situation warrants a conditional sentence. This has been eliminated and I find that inappropriate.

When judges hand down a sentence of imprisonment, they take into account the degree of responsibility of the offender and the seriousness of the offence. That is one of the most distinctive aspects of a judge's work: not only do they have to decide if the accused is guilty or not, but they must also determine which sentence is the most appropriate in that case. Those who are only aware of the offence and the sentence often do not realize that there are other important factors that must be taken into account in the sentencing process.

We are in a situation where, although the intentions are good, the government is saying that it has to be as strict as possible and indicate clearly that maximum sentences will be handed down and that there will be no conditional sentences. It believes that this will deter people from committing crimes.

However, according to various studies and surveys on this subject, this is not how it is in real life. In fact, providing for harsher sentences has no influence on the commission of a crime. People often are not aware of the penalties. In the final analysis, the focus needs to be on rehabilitation. It is not about being too lenient; sentences have to be sufficiently harsh. Moreover, judges have to follow each case closely, as they already do, and analyze the situation.

The solution proposed by the government today is inadequate and will lead to results that we will have to correct 10 years down the road because crime will have increased, not decreased.

[Charlie Angus, NDP, Timmins—James Bay, ON]

Mr. Speaker, I listened with great interest to my hon. colleague's speech, because one of the things that I have come to realize is that legislation is a very blunt instrument. When we want to respond to a specific incident that has happened in the community and we propose legislation that runs across Canada, it has profound implications.

For example, as a former school board trustee, I dealt with the issue of zero tolerance. It seemed that every politician in Ontario at that time was jumping up with plans for zero tolerance to take all the discretion away from the school principals, to the point where I was at meetings where grade twos and threes were referred to as repeat offenders.

I would like to hear the hon. member's response on the necessity of having some level of discretion in this. If we put a blanket prescription on the judiciary, has the hon. member thought of the kinds of costs we are going to see in court battles that will be dragged out and in terms of incarceration that will be downloaded to the provinces, because there will be costs picked up by them? What about the costs to communities of the increased maintaining of jails? Has the hon. member looked into the implications that are going to result from the legislation we are talking about?

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, in response to my colleague's remarks, I should clarify that we are not giving the courts carte blanche. Judges do not have complete freedom in this area. Both our colleagues and the population should be aware that there is already a solid set of rules in place.

Currently, four conditions must be met before a judge can consider conditional sentencing. The rules are already in place.

The offence for which the person has been convicted must not be punishable by a minimum term of imprisonment; the offender should be sentenced to less than two years; conditional sentencing must not endanger the safety of the community; and the judge must be satisfied that the conditional sentence would be consistent with the general principles of proportionality.

There is already a set of rules in place that includes some room to manoeuvre. I believe that the government's proposed new criteria would destroy the balance already in place in the legislation.

Individuals are usually sentenced to less than two years. If this sentence is eliminated, provincial prisons will feel the financial impact. The federal government will end up creating additional costs. The irony is that money spent on rehabilitation will now be spent building prisons.

Given these consequences, I agree with my colleague that this bill, as it is currently written, is unacceptable. It must be reworked; if it is not, the House must reject it.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I thank the member for his comments.

I have a few questions about financial crimes. Unfortunately, people have stolen money from trust and pension funds. Under Canada's current system, the judge can choose to apply conditional sentencing. This allows the conditionally sentenced thief to work to pay back the money stolen. With Bill C-9, the government would completely eliminate this option.

Would the member agree to a conditional sentencing system for those convicted of financial crimes?

[Paul Crête, Bloc, Montmagny—L'Islet—Kamouraska—Rivière-du-Loup, QC]

Mr. Speaker, the member's question allows me to tell the House about something I remember.

I was in Africa a few years ago. Prisoners had to assume the total cost of their incarceration. They had to find the money for their meals and for other benefits. That is the other extreme but, nevertheless, this system had a positive effect on rehabilitation. In such cases, the judge must be able to assess the situation. It could be a case of systemic fraud and it is essential to be able to detect repetitive organized crime. I think a judge can do that. However, if after finding the accused guilty of one of these crimes the judge believes that particular person can be rehabilitated in the community, the person will have a better chance of succeeding if he or she is forced to work to pay the money back than if he or she is sent to prison with free room and board for a certain number of years. This method does not lead to the same results. Instead of having to work to assume the cost of their incarceration, convicted offenders are told that they will benefit from free room and board for having committed a crime.

This example shows very clearly that the bill in its current form will not meet the objective pursued by Canada's criminal justice system.

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, it is a pleasure to speak to Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment).

This is a very important topic. I want to come out right at the beginning of my remarks and say that I am a supporter of conditional sentencing. I think it has been an important addition to the remedies and the possibilities that are available in our criminal justice system.

Conditional sentencing was introduced in Canada in 1996. It was an innovation then and I think it has been an important part of our criminal justice system since then. It allows for sentences to be served in the community under certain conditions, rather than in prison, so it diverts people from the prison experience. The other options for punishment in our criminal justice system include fines, probation and ultimately imprisonment, but conditional sentencing was a new possibility that was an important addition to this system.

It was developed as part of an overall approach to sentencing, so it did not come out of the blue and it was not stimulated by an urge to be more lenient or to go easy on people. It was an attempt to broaden the range of sentencing possibilities available to judges in the system.

It was also an attempt to find appropriate options for expressing society's concern that laws be upheld, that appropriate punishment be meted out when laws are broken and that rehabilitation be a true possibility. These other options were necessary. We saw the failures of suspended sentences, of mere probation, of incarceration and the serious failure of incarceration to change behaviour and produce real rehabilitation. This came out of that concern to increase the possibilities and options.

Right now, about 13% of custodial sentences in Canada are conditional sentences. In my understanding, that makes it about 5,000 sentences per year. Always, as we heard the previous speaker say, the seriousness of the crime is taken into consideration, as is the responsibility of the offender for that offence. I want to read again for members the criteria that are part of the legislative basis for conditional sentencing.

There are four main criteria. One is that the offence for which the person has been convicted must not be punishable by a minimum term of imprisonment. So where there is a mandatory minimum sentence, conditional sentencing does not apply, and those are already the crimes that our society recognizes as the most serious crimes that can be perpetrated.

The second of the criteria is that the sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years. So even though the possibility of the maximum sentence can be very serious, it applies only to those situations where the judge has made a determination that the sentence would be 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. Safety is a key component of sentencing and the use of conditional sentencing.

Fourth, the sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purposes and principles of sentencing as set out in the Criminal Code, and those include quite a number of important ideas. The sentencing is to address the denunciation of unlawful conduct. It is to address the deterrence of the offender and others from committing offences; there is an example made. It is to address the separation of the offender from the community where necessary so the safety and protection of the community is paramount. Also, the rehabilitation of the offender is to be taken into consideration. The provision of reparation to victims or the community is another factor, as is the promotion of a sense or responsibility in the offender.

With this kind of criteria, it seems to me that by maintaining the relationship between the offender and the community those criteria are often best served. We cannot hide the offender away and pretend that none of these things happened. We cannot hide the offender away and pretend that there are not relationships that were broken and need to be restored. Conditional sentencing, under those kinds of criteria, is a crucial part of our criminal justice system.

Originally, I think, the intention was to divert more minor offences away from the prison system. Sometimes that is hard to understand when we have been victims of a crime, when we are involved in it so intimately and we see people not getting a jail sentence because of a crime they have committed.

There is concern around violent crimes and crimes involving serious injury, but I believe the current bill goes way beyond addressing that kind of concern in eliminating the possibility of a conditional sentence for any crime that is punishable by 10 years or more. By putting in that kind of criteria, I think we go away from addressing the concerns that have been raised in society.

We also know, and very clearly, that incarceration does not necessarily solve crime or lead to successful rehabilitation. The previous speaker used the term “schools for crime” in his remarks. Our prison system is often seen that way, as a great place for criminals to learn techniques, or a great way to expand one's criminal network while incarcerated.

We also know that incarceration leads to a higher incidence of reoffending. That is a statistic that has been proven time and time again. We also have a great example that incarceration does not work. We just have to look south of the border. The United States has a very high rate of incarceration that really has not affected the crime rate in the United States. So we know that incarceration does not work and that other options are vital to the system.

I also believe that judges should have some discretion. The judge is in the most appropriate and best place to judge the specific circumstances of the offender. Often we see sensational cases in the media and we see a sentence that just does not seem to make sense at first blush. Upon examination of some of the details as we look at the substantive and important considerations that went into the delivery of a conditional sentence, this is often seen in a very different and much more positive light.

Removing the option of conditional sentencing will have serious consequences on other sentences. I think it will lead to more suspended sentences, whereby judges who are looking for options will refuse to sentence someone to incarceration and will suspend the sentence instead. A suspended sentence does not have the kinds of conditions that are involved in a conditional sentence. There are no conditions in a suspended sentence.

I also think it could lead to shorter sentences generally. In that case, the shorter sentences of less than two years will put increased pressure on the provincial prison infrastructure. I think that new prisons will be necessary at the provincial level since the legislation that we are talking about applies only to sentences of under two years. There is a huge expense involved with this.

We know that it takes $125 a day to keep someone in a provincial jail. That is just over $50,000 a year. It is even more expensive in the federal system. That estimate varies from province to province, but that is an average. Let us say that 5,000 people per year are getting conditional sentences now, and let us say for the sake of argument that 1,000 of them go in some other direction. If 4,000 new jail terms are imposed, that could easily cost another $200 million to $250 million a year, not even counting the capital costs. That is just the cost of maintaining people in prison. As for building new prisons on top of those dollars, we have not had any allocation or any estimate of what it would cost the system to do that.

I think there is a serious question of the increased costs for the correctional system. We have not even dealt with the increased number of mandatory minimum sentences that the government is proposing under Bill C-10, which will have the same effect in the federal prison system. We are talking about huge increases in costs. I would much prefer that this kind of money go to attacking the root causes of crime, that it go to attacking poverty, attacking drug addictions, dealing with the alienation that people feel from Canadian society, and supporting families. I think that is where this money needs to be sent.

I see conditional sentencing as part of the whole movement around restorative justice. I think that keeping someone in the community, where the person and the community can take responsibility for re-establishing the relationship and for reparations and rehabilitation, is really important.

In my own community, the Burnaby Restorative Action Group on justice is working hard to establish a restorative justice program in my city, but it is meeting roadblocks every step of the way. The funding is not there to support that kind of important work. This is a community that wants to take responsibility for the crimes committed in that community. It wants to help people understand the impact of their crimes and be rehabilitated for those crimes. We need to support these kinds of initiatives like restorative justice and conditional sentencing. We need to maintain that kind of discretion in the system.

Those are my thoughts on conditional sentencing.

[Keith Martin, Liberal, Esquimalt—Juan de Fuca, BC]

Mr. Speaker, I appreciate the hon. member's comments and insights into this issue. I know it is very difficult trying to square off public perception with certain statistics, while ensuring we perform due diligence for the public and, above all else, ensuring that the protection of the public is first and foremost.

The hon. member comes from my province of British Columbia. The head start program in British Columbia has started to flourish. Does he agree with the data from that program which shows there is a 60% reduction in youth crime, saving taxpayers $7 for every dollar invested? Does he agree that the federal government should work on this with its provincial counterparts to ensure that we have a national head start program from coast to coast, consistent with the desires and interests of each provincial government?

[Bill Siksay, NDP, Burnaby—Douglas, BC]

Mr. Speaker, that is exactly the kind of program we need. I am glad the member for Esquimalt—Juan de Fuca has highlighted that work in British Columbia.

We need to work on the prevention side of the equation. We are falling down on that. We do not give the attention that young people need to divert them away from a potential life of crime. We do not deal with the question of drug addiction in our communities. We do not deal with the dislocation of families in our communities.

In my community of Burnaby the greatest crime problems are car thefts and break and enter. We know of the high correlation between those crimes and issues of drug addiction. Yet trying to get someone into a drug treatment program remains an incredibly difficult proposition in British Columbia.

If we could take that $250 million, which we estimate will cost the provincial correctional systems, and put that into drug addiction treatment programs, we would make a far more significant dent in crime in our communities than this proposed legislation ever has a hope of doing. We need to put our emphasis on that.

We need to look at our whole criminal approach to drugs as well. I am someone who believes that prohibition did not work with alcohol and it has not worked with drugs either. It has led to the same kind of criminal activity that we saw during the period of alcohol prohibition in the United States.

There are lessons to be learned, and there are better places to spend the money than what this kind of proposal would cost.