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.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

I don't know if this has been addressed yet, but I think the question has been skirted a couple of times on Bill C-9. It has a ten-year maximum. Traffickers basically end up with a 14- or 15-year sentence, maximum. Simple possession would not be captured under Bill C-9, but trafficking could be. What would happen in a drug court if you had a trafficker who has an addiction?

[Larry Bagnell, Liberal, Yukon, YT]

Okay, that's fine.

You've evaluated the costs of the new initiatives the government has brought forward, Bill C-9, Bill C-10, etc. Could you table those estimates of the costs with the committee?

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

I wanted to know whether you had had an assessment done of the legal aid costs associated with the enforcement of Bills C-9, C-10 and C-27.

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

In the draft budget, $955,000 was earmarked as support for a legal aid pilot project. Why doesn't that show up in the 2006-2007 main estimates? That's my first question.

As for my second—and I hope you will be able to answer it—I would like to know whether your department has contemplated the increased cost of legal aid associated with the enforcement of Bills C-9, C-10 and C-27, which we are going to be considering in the next few days. Have you looked into that? I look forward to your answers.

[Donald Piragoff]

First, as mentioned, there is the supplementary estimates request, which will provide the provinces with the full funding that they had last year. With respect to new pressures on the system, as indicated by federal-provincial-territorial ministers following their meeting last week in Newfoundland, ministers will continue to work together to look at the legal aid costs to try to reach a new agreement. They are also aware of the new funding pressures that would be created by new reforms.

But I think each of the ministers who left that meeting last week understands that responsibility in the criminal justice area is a shared responsibility at both the federal and provincial levels. Provinces, for example, cannot continue to demand law reforms without at the same time shouldering some of the costs, but on the other hand, the federal government also realizes that, as a shared partner, it must also share some of the costs. The ministers have agreed to continue their discussions and look at the actual numbers.

With respect to particular bills, as you know, you've heard testimony on Bill C-9, for example, and there are differences with respect to what the cost implications would be. I believe the bill is going to clause-by-clause. There may be some amendments. The amendments may have the effect of actually reducing the financial impact on provinces, but that's something within your purview as MPs, as to what the scope of the impact would be, depending on the scope of the bill.

But I do want to indicate that ministers did agree last week that they would continue to work cooperatively to address the costing pressures on the system, both existing, such as legal aid, and also new pressures as a result of law reform.

[Sue Barnes, Liberal, London West, ON]

That's fine. I understand that.

Can you tell me what will happen, say, in my province of Ontario, where the provincial legal aid, which is responsible, is in a deficit situation? The year hasn't gone through, and yet we have legislation before us, in Bill C-9 and Bill C-10, that will put people at risk of going to prison. That's the test in my province: if they have a substantial risk of going to prison, they're supposed to be able to obtain legal aid. They're $10 million in debt right now in that system, so what is the federal government going to do and what were the discussions on those areas?

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

I would like to thank the witnesses for testifying before this committee. I think we had a very informative discussion. It's very much appreciated that you took the time to come and make this presentation. We're trusting that this dialogue will continue. The time of Bill C-9 will be very limited now, as far as further testimony is concerned, but we will be analyzing everything that's before us now. Thank you very much.

The meeting is adjourned.

[Myron Thompson, Conservative, Wild Rose, AB]

Yes, but there's one thing I want to clarify.

I supported conditional sentencing in the beginning, but I was also informed that I wouldn't have to worry about it pertaining to violent types of criminal, and it certainly has gone that way. That was the disappointment.

In my understanding, if Bill C-9 becomes law, you're saying, sir, that judges have then lost their ability to determine whether this should be through indictment or summary—

[Jonathan Rudin]

Certainly the constituency that we represent is not clamouring for Bill C-9 to be passed. They're not clamouring for more opportunities to put aboriginal people in jail. What they're looking for are facilities where people who have been damaged can be healed. What they're looking for are safer communities.

You mentioned the issue about jail and people wanting to be safe. The difficulty is that jail doesn't make people safe. There's a recent study by the Canadian Centre for Justice Statistics that talks about aboriginal people being much more likely to go back to jail after they've been in jail. They have a higher recidivism rate than non-aboriginal people. What that says is that this option isn't working. It's not making the community safer, because the person comes out and reoffends. So unless we can find real ways to break that cycle, people won't feel safe. The way to break that cycle is not to send people back to a place that doesn't work.

It has always struck me as odd--though I can't expect people to do things with it--but given the high rate of recidivism we have.... If I started a program at Aboriginal Legal Services in which I could guarantee that 75% or 80% of the people who went into it would then get out and reoffend very quickly, I wouldn't be funded for very long. And if I could say that on top of this, if they come in on a minor offence, later they will commit more serious offences, my funding would be cut off right away. Yet that's what happens in the prison system.

I'm not saying that we should get rid of prisons altogether, but we have to look at what the consequences are when we simply respond to legitimate public concerns by saying we're going to look like we're doing something and we're going to look like we're getting tough.

[Jonathan Rudin]

Thank you.

First, I should make it clear that we have a victims' rights component to our organization, so victims' issues are very significant to us as well.

I don't sympathize with the dilemma that you have in some ways as Parliamentarians. I certainly know that many people have those concerns that you have with the justice system. But I found it interesting that when you spoke, you said there's room for both conditional sentences and imprisonment. That's what we have now. That's why we don't understand Bill C-9.

The concern is that we have no confidence, no belief that this will make any community any safer. May it make some of your constituents feel they're safer? It may do that. But in order to do that, you are sending individuals to jail who shouldn't be going to jail. And we know that, disproportionately, those individuals will be aboriginal.

So if Parliament would like to respond to real concerns about public safety by enacting a bill that will not do anything to actually address those concerns, but will send aboriginal people to jail in even greater numbers while not resulting in any increase in public safety, then you should do that. But you should be aware of what you're doing. You are simply perpetuating what has been done for years.

So if the concern is how we remedy the problems, we look for real answers. In our opinion, this is unfortunately not going to do that.

[Bob Watts]

I don't think there's any one easy answer. Early on in our submission, we talked about systemic discrimination and we identified what the Manitoba justice inquiry said about systemic discrimination. When we met with Minister Day, the national chief was there and he asked Minister Day for support in terms of talking with his cabinet colleagues and dealing with the issue of first nation aboriginal poverty. Those are the underlying issues in terms of whether we're talking about a justice system or a legal system or healing or healthy communities.

Minister Day said he doesn't think too many things happen that aren't planned, and he was talking in particular about poverty and wealth. He said you can win a lottery, but that's kind of accidental and you can become really wealthy. Or a hurricane could come through and rip up a small community or a trailer park, but that's accidental too. That's extreme in terms of wealth and poverty that happen by accident, but he said most of it's planned. Our question is, where's the plan? Is our poverty a plan? Our poverty is part of what underpins what we're talking about in terms of the negative effects of Bill C-9.

The honourable member talked about maybe some sort of a mix in terms of a conditional sentence and a mandatory minimum. Maybe that's the way. I don't know. But we've also said we have to do the homework. We've tried to find the statistics. We can find tons of anecdotal evidence from the good to the bad to the ugly, but I think we're working in a vacuum on some of this. We don't have the good evidence that says, given this evidence, this is what we need to do in terms of legislation. Until we have that, I think we may be trying to appeal to public opinion but we're fighting with one hand tied behind our backs.

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

I noted one interesting comment. You said that we punished the individual and not the crime. Under Bill C-9, we would be punishing the crime and not the individual.

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

As I have argued on several occasions, I suggest we speak amongst ourselves, as lawyers. They will not listen, on the other side of the table.

But seriously, we all know what plea bargaining is. Do you think that Bill C-9 will lead to more or less plea bargaining? Do you think that if the bill were to pass in its current form, far more trials would go to completion? That would preclude any plea bargaining. Am I completely wrong or partly right?

[Jonathan Rudin]

Yes, thank you for the question.

As we mentioned, a number of hybrid offences carry with them, if prosecuted by indictment, sentences of over ten years. So what happens now is the crown elects whether they'll proceed summarily or by indictment.

If Bill C-9 were to be passed, the crown could decide, on a hybrid offence, to proceed by indictment. Because the maximum sentence, if proceeded on by indictment, is over ten years, any possibility of a conditional sentence would be removed, even though the crown may be seeking a relatively short jail sentence. So that is our concern: that it gives crown discretion.

I want to be clear that we have a very good relationship with the crown's office in Toronto, and we're not suggesting that there is a widespread design on the part of crowns, but at the same time, it allows crowns, in this case, to make the decision as to whether or not a conditional sentence will be available to an offender at the outset, simply by saying they're proceeding by indictment.

[Richard Jock, Chief Executive Officer, Assembly of First Nations]

Thank you. What I'd like to do is summarize the recommendations.

First of all, we agree with the notion that it is important to study the impact of the proposed revisions that are contemplated by Bill C-9 before proceeding with those revisions. We feel it would be really important to conduct such an evidence-based study in advance of such enactment, in order to protect first nations people from further impacts and outcomes of systemic discrimination. This would also require a review of the potential impact of the bill on self-government arrangements that were negotiated in good faith by the crown and first nation governments. Our view is that should such a study be done, this would really reveal a different course of action.

We also propose that further revisions to sections 718, 718.2, and 742.1 of the Criminal Code be conducted in order to ensure that conditional sentencing and restorative justice options remain available to first nations offenders in respect to offences that are prosecuted by way of indictment, for which the maximum term of imprisonment is ten years or more, and for which offences are punishable by minimum terms of imprisonment. In our view, it's really essential that restorative justice and alternative sentencing measures remain available as a way to address the issues of over-representation that have been very effectively made by colleagues.

We would also urge the Government of Canada, on a more broad basis, to launch an inquiry into the causes of over-representation of first nations people, and that such an inquiry adopt some of the measures that would come from this inquiry in order to eliminate the systemic forms of discrimination and over-representation.

We also feel that prior to enactment of a bill, the Government of Canada should conduct a public education campaign among first nations citizens, particularly youth, regarding the potential impacts of any proposed legislation or any final legislation.

As mentioned, the aboriginal justice strategy should be renewed. This would also be a mitigating element in terms of any potential changes to legislation.

We're prepared to discuss the statistics issue at greater length. It's a critical issue, and we have several distinct recommendations as to how to improve and enhance those statistics and to take advantage of provincial databases.

Last, we recommend that this measure not be taken in isolation, that an overall plan be taken to address the socio-economic disadvantage of first nations people. That's a critical element; otherwise this will simply result in more cost to the Canadian public. The cost of education is much more preferable, in our view, to the cost of incarceration.

Thank you.