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.

[Bob Watts, Chief of Staff, Office of the National Chief, Assembly of First Nations]

Thank you, Mr. Chair.

Honourable members, on Richard's behalf and my own, I want to say we're pleased to be here today to present before you. I want to offer greetings to all of you on behalf of our national chief Phil Fontaine and the executive of the Assembly of First Nations.

As committee members know, we've tabled a document entitled “First Nation Perspectives on Bill C-9 (Conditional Sentencing)”, so we're not going to go into great detail. You have that document, and we are going to give some highlights of it.

The over-representation of first nations people in the criminal justice system has reached crisis proportions. The numbers confirm this critical situation. While aboriginal adults represent 2.7% of the Canadian adult population, they accounted for 11% of admissions to federal penitentiaries in 1991-1992 and 18% in 2002-2003; 29.5% of all incarcerated women and 18.2% of all incarcerated men in Canada are aboriginal. While the federally incarcerated population in Canada declined by 12.5% from 1996 to 2004, the number of first nations people in federal institutions has increased by 21.7% during the same period of time. Even more alarming, the number of incarcerated first nations women increased by 74.2% over the same period of time.

Just yesterday a correctional investigator, Howard Sapers, the Government of Canada's ombudsman, said that the federal prison system has practices that discriminate against aboriginal offenders. He found that the Correctional Service of Canada routinely classifies first nation inmates as higher security risks than non-native inmates, that aboriginal offenders are released later in their sentences than other inmates, and that they are more likely to have their conditional release revoked for technical reasons than other offenders. We are concerned that Bill C-9 will only contribute to these problems. We have identified in our written submission to this committee exactly why.

We'd like to focus on a few areas we believe require specific attention. I am going to go over some of them in general detail, and Richard will go into more specific recommendations.

In terms of solutions, there are four areas we believe require attention.

First of all, there's the issue of poverty. The socio-economic gap between first nations and other Canadians has led to the over-representation of first nations in the criminal justice system and must be addressed if we are to make meaningful progress in reducing the over-representation of first nations people in the criminal justice system in Canada.

I want to read into the record a quote from the Manitoba aboriginal justice inquiry with respect to this. The Manitoba aboriginal justice inquiry said:

Poverty, inadequate educational opportunities, unemployment, poor living conditions, alcohol abuse and domestic violence all contribute to Aboriginal people coming into conflict with the law. Where disadvantaged socio-economic factors lead to over-representation of First Nations people in the criminal justice system, this is...systemic discrimination.

In terms of structural change, we'd like to point out that the undermining of first nation law and governments by federal and provincial legislation and their policies is another factor that has directly and indirectly contributed to the over-representation of first nations people in the criminal justice system.

This minority government and the minority government before it struggled with the issue of residential schools and struggled with issues like alternative dispute resolution, restorative justice, truth and reconciliation—all those issues that are fundamental to what we're talking about here. And both of the last two governments have come to the conclusion that those are good things; that we need to work through those things. In fact, the foundation of truth and reconciliation is restorative justice. It's an important principle that I think governments have come to agree is important; yet we're seeing it side-stepped in this case, and we're concerned about that.

Existing institutions involved in the administration of justice in Canada are often foreign and not familiar to many first nations people. There are language barriers and issues of affordable legal representation that all contribute to the over-representation of our people in courts and subsequently in jails and prisons.

We'd like to point out that the aboriginal justice strategy is up for renewal and ask for your support as parliamentarians to ensure that this justice strategy is recommitted to and re-funded as of the end of next fiscal year.

One issue that oftentimes gets overlooked and that we found frustrating in preparing for this is the lack of data. We're able to give you some statistics, but in order to try to get behind those numbers we need more reliable statistics. In talking with some of our federal counterparts, they encounter the same problem. So one of the recommendations we would like this committee to consider is really the need for more evidence-based research, in fact, to conduct more research before more consideration of this bill goes on.

I'd like to turn it over to Richard for a more detailed recommendation.

Thank you.

[Marisha Roman]

When important decisions are made in the aboriginal community, we are often reminded by the elders that we must think seven generations ahead. As Oren Lyons, Faithkeeper of the Onondaga Nation, has said:

In our ways of life, in our government, with every decision we make, we always keep in mind the seventh generation to come. It's our job to see that the people coming ahead, the generations still unborn, have a world no worse than ours - hopefully better. When we walk on Mother Earth we always plant our feet carefully because we know the faces of our future generations are looking up at us from beneath the ground. We never forget them.

We realize that it is often difficult for politicians, particularly in a minority Parliament, to think 10 or 15 years down the line, never mind seven generations. But the sad reality is that the tragedy of aboriginal over-incarceration in this country can at least be partially understood by the fact that decision-makers have often not looked at all on the impact of their decisions on aboriginal communities. It is because we so often do not look forward and contemplate the outcomes of our decisions that we leap to hasty conclusions and quick fixes. Even if we cannot solve a problem, we want to look like we are solving a problem.

In our opinion, Bill C-9 is an example of a hasty, ill-advised response to what is perceived to be public unease with the operation of the criminal justice system. It is a response that will have a disproportionate impact on aboriginal offenders and will make the already growing problem of aboriginal over-incarceration worse; and it will do so with no corresponding benefits in terms of increased public safety.

We urge this committee to carefully review this bill and to recommend against its adoption. Conditional sentences can play an important role in addressing the root causes of offending behaviour. They are not a panacea, but they are a very useful sentencing option for judges. Removing this option in a significant number of cases is a serious step backwards.

Thank you.

[Jonathan Rudin, Program Director, Aboriginal Legal Services of Toronto]

We have five specific but linked concerns with the proposed bill, and we will address each one in turn.

First, the bill casts too wide a net. If passed, Bill C-9 would include among offences ineligible for conditional sentences robbery and break and enter into a dwelling. While most Canadians might think that these offences represent particularly heinous crimes, as members of this committee know, that is not always the case.

Take the offence of robbery. What is robbery? It is theft with violence. In some cases, the violence can be extreme and would require the incarceration of the offender for public safety. In other cases, a theft is turned into a robbery because the offender pushes or threatens to push the victim. Most of us would agree that this latter situation is by no means comparable to the first example, yet both are robberies.

The same holds true with respect to break and enter charges. While we cannot discount the trauma experienced by people who have had their homes broken into, there is a difference between a gang carrying out a home invasion and someone with an addiction attracted to an open window. We have clients who have been charged with break and enter who were found asleep in front of the television in the house they broke into. Did they commit a crime? Yes. Should their action disentitle them to consideration of a conditional sentence? No.

The second concern is about an increase in prosecutorial discretion. Many of the offences listed in Bill C-9 are hybrid offences. If prosecuted summarily, a conditional sentence is possible. If prosecuted by indictment, it is not.

Sentencing decisions should be made by the judge, not by the crown attorney. There is nothing wrong with the crown proceeding by indictment and strenuously arguing for a jail sentence, but it does not seem right to us to allow the crown to unilaterally remove one of the possible sentences available to the sentencing judge at the outset of the process.

Third, we are concerned about forcing judges to choose between probation and jail. Bill C-9 will require a judge who does not think jail is an option to choose a sanction that may be less able to accomplish the sentencing goal than a conditional sentence. We fail to see the logic in this process. How is giving a judge a choice between two sanctions that he or she would rather not choose better than allowing the judge the full panoply of sentencing options?

Fourth is a concern about increasing the problem of aboriginal overrepresentation. It is worth remembering the words of the Supreme Court of Canada in R. v. Gladue. With respect to aboriginal over-representation, the court said:

These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.

The court went on to say:

Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.

Bill C-9 will impede the ability of sentencing judges to follow the dictates of the Supreme Court of Canada. It will make the problem of aboriginal over-representation worse.

We have found that judges can design quite creative and helpful conditional sentences. Sentences can be fashioned to allow the offender to take responsibility for his or her actions, and also take concrete steps to address why they are involved with the criminal justice system. In many cases, the offenders are required to attend or complete treatment programs, often in conjunction with other conditions.

Let's look again at aboriginal over-representation, but from a different perspective. Jail sentences are often advocated because they act as a general or specific deterrent. If incarceration really worked as a general deterrent, we would expect that rates of aboriginal representation in prison would drop. After all, what aboriginal person in Canada does not know that if you break the law, you stand a good chance of going to jail?

If jail worked as a specific deterrent, we would not see aboriginal people coming before the courts with criminal records that stretch over three or four pages and include multiple periods of incarceration. But that is what we see, and we see it every day.

As this committee has heard, the average jail sentence of an offender serving time in a provincial institution is between two and three months. No positive change will come over a person who spends 60 to 90 days in custody. No programs will be made available to the person; no counselling will take place; nothing positive will happen. For our clients, frequent periods of jail lead simply to the institutionalization of the offender. Conditional sentences can offer hope for change for the aboriginal offender; incarceration offers just more of the same, more of the same that does not work.

Our fifth concern is that removing conditional sentences would not make communities safer. Let's talk about victims. In addition to being over-represented in prisons, aboriginal people are also over-represented as victims of crime. Aboriginal people and aboriginal communities are very aware of the need for initiatives that will lead to safer communities. It is for this reason that aboriginal communities are at the forefront of restorative justice programs.

Restorative justice programs allow for individuals to break the cycle of jail and the street by having them take responsibility for their actions and for their healing. We have seen what incredible changes aboriginal justice programs can have with individuals with long criminal histories, including many spells in jail. While a conditional sentence is not a restorative justice sentence, it is often an appropriate sentence for an individual who requires a greater degree of supervision. Taking away this option will not lead to safer communities; it will mean communities--aboriginal and non-aboriginal--will be more at risk form offenders who have simply done their time and emerged, at best, no worse than when they went in, but certainly no better.

[Marisha Roman, Vice-President, Board of Directors, Aboriginal Legal Services of Toronto]

Thank you.

On behalf of Aboriginal Legal Services of Toronto, we appreciate the opportunity to present our position on Bill C-9 to the Standing Committee on Justice and Human Rights.

ALST has appeared before the Supreme Court of Canada on a number of occasions to address issues surrounding the sentencing of aboriginal people. We are also very active on the ground in justice issues. In 1999 we developed the community council, the first urban aboriginal and restorative justice program in Canada. We were also involved in the development of the Gladue Aboriginal Persons Courts in Toronto. Our Gladue caseworkers provide detailed Gladue reports to judges in Toronto, Hamilton, Brantford, and elsewhere in southern Ontario.

Our work has resulted in the imposition of many conditional sentences in circumstances where a jail sentence would otherwise have been a certainty.

We wish to make it clear at the outset that in our opinion, Bill C-9 is a retrograde move. It will not only worsen the already significant aboriginal over-representation in Canadian prisons; it will also result in less safe communities.

To put this issue in perspective, it is important to keep in mind a few statistics. The issue of aboriginal over-representation in prison was one of the motivating factors behind Parliament’s sentencing reforms in Bill C-41 and specifically in the introduction of paragraph 718.2(e).

Yet despite all the concerns expressed over aboriginal over-representation, the situation continues to get worse. From 1997 to 2001, the percentage of aboriginal people in jails in Canada rose from 15% to 20%. By the end of 2003-04, one in five men admitted to custody were aboriginal, while almost one in three women were aboriginal.

[The Chair, Conservative, Art Hanger]

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

We will continue our debate on Bill C-9, an act to amend the Criminal Code on conditional sentence of imprisonment.

I would ask the media and the camera to leave. Thank you.

We have before us three different groups today: Barreau du Québec, Aboriginal Legal Services of Toronto, and the Assembly of First Nations.

I would like to proceed with the presentations in the order in which they appear on our agenda. Who will be speaking? Will it be Giuseppe Battista? I understand that Madame Moffet will introduce Mr. Battista. Please go ahead.

[Kim Pate]

I think there are some other mechanisms. Certainly in the past we've seen probation and other options used. The reality is, though, that because conditional sentences have become so entrenched in our system, it's more likely to be a conditional sentence option in particularly the more serious cases, which in our experience are the ones in which the aboriginal communities and the communities up north have wanted to see those approaches. That's where we're seeing increased use, or some of the greatest use, of conditional sentences, and Jolene can correct me if I'm wrong, and it's where we hear from elders and from members of those communities that the person who is the predator....

I was surprised, actually, to hear from our friends at the probation service that there are many hundreds of those cases, because certainly we're not aware of many hundreds of child sexual abuse cases going to conditional sentence. So I'm very interested in seeing the stats as well.

In fact, what happens, particularly in some of the northern and aboriginal communities, is the elders in those communities are respected and are asked for their support and advice on what should happen in terms of sentencing. If they say this fellow has been here a while and we don't think he should be continuing on, chances are he won't be accepted by even the community to be looked at for a conditional sentence. So some of the screening is happening there.

Some lawyers will still argue for those individuals; probably some of them still get those. My guess is that if they do, they have very stringent conditions placed on them and probably they're not held or kept in their own communities--just from the stories I've heard.

There's no doubt that there are concerns. Women's groups, ourselves included, and the Native Women's Association as well, have expressed concern over the years about really lenient approaches being used in cases of misogynist violence.

The fact that we have systemic discrimination already in our system and that sometimes our judges suffer from using bias is not new--there have been far too many aboriginal justice reports to challenge that--but the reality is that an arbitrary removal of conditional sentences based on the provisions in Bill C-9 is not going to solve that problem; it is quite the contrary.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

This is to Jolene, Kim, or Lucie. I myself come from a first nations community and grew up on a reserve, and from what I understand there are systemic barriers that contribute to the higher rates of incarceration. One mechanism to try to address this was the restorative justice approaches that were introduced.

I think Bill C-9 actually removes the restorative justice approach in large part, potentially, because many of the offences are listed under Bill C-9. What other mechanisms do you think would work if Bill C-9 passes and these restorative justice approaches are taken away?

I know in my community we've had fly-in courts in which maybe sometimes the judges, the prosecutors, and the defence lawyers have an agreement before they land in the community on the outcome of some of the--

[Marvin Bloos]

I think Mr. Thompson and I approach this from different premises, because what we've heard today is that when you give individuals in the community all the information and then ask them what sentence they would impose, they come pretty close to the sentence imposed by the judge. So if we're going to establish the laws in Canada based on the sensational details people read in the newspaper, we want a well-informed community. We've been told over and over again deterrence isn't what keeps people from committing crime. Most of my clients aren't thinking. A lot of them are young people who do foolish things and now they have to pay the price through the conviction and sentence process.

I echo what my friend from the native community has said. In the north, these individuals stay within their communities. They work with the elders. They are given an education, they're given drug treatment, and they're taught proper respect for women, which is a big problem in the north, as the men don't respect the women. They do all of that within the context of a CSO. If they're sent to jail, they're out of the community. They don't face the situation; they don't face their problems. They're not working with the elders and they're not learning. They come back probably as bad as they left.

When we're dealing with these orders, it's not a matter of what the community might like. I'd like the community to be informed and then hear what they say, because these are a relatively small percentage of sentences based on the statistics in front of this committee. I understand the sentences we're talking about in Bill C-9 are approximately 3% of the sentences imposed every year in Canada. Five percent equal conditional sentence orders or something like that, or 8%, and of the longer sentences in the offence categories, we're talking about perhaps 3%.

The wheel isn't broken, as I've said before. I think it's working very well. We've got a good judiciary in Canada. Day in and day out, they try as hard as they can to get it right, to do the right thing in that individual case. They sometimes make mistakes. That's where I come in. I go on the appeal. But they're working very hard to get it right. They read the papers. They have neighbours who complain to them. It's in the newspaper all the time about the easy sentence someone got. They're aware of that. But they are trying to do justice in a specific case based on the best information they're given.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you. You answered my question.

However, the victims of the family of the perpetrator are one group. There are tons of victims out there who aren't related to that perpetrator, and I didn't hear about any of those conversations. In other words, the victims of crime are really supporting this legislation. The public at large is supporting this kind of legislation. Taxpayers, the regular people out there who pay the bill, will tell you—as a politician who talks to everybody—we'll pay the bills to build more prisons, if we need them; we want this taken care of. We applaud the probation....

I've been here 13 years and I've been working hard on crimes against children. I am pleased to hear the emphasis that's put on that by this group, by the police officers, and by the enforcers of these laws. I think the public is sick and tired of reading about these types of individuals getting house arrest. I find it amazing that there's such a difference in the expression of conditional sentence, of confinement and harshness, from you fellows. Yet I heard they have access to TVs, they have nice showers, they get a warm bed, and they come and go basically as they please. I see a big difference in the opinion on house arrest, which is basically what a conditional sentence is. I don't know why that is, but you may want to answer or comment.

I would like to throw one more question out. Ms. Saulis, you made a good point on root causes. Nobody could disagree with that. I can assure you that all of us here believe in conditional sentencing, that there's a better way than jail in a lot of cases. There's no doubt about that. We believe that.

But in my years, when I went across the country for the leader of our party at the time, I spent time with grassroots natives from coast to coast and visited with the coalition of accountability, basically run by aboriginal women. The thing I heard more and more in regard to sections like 718, I believe it was, was, why is the justice system treating us like second-class citizens? Why aren't harsher penalties given to those who offend us who are usually of native race? Why are they given special attention?

You see, there are so many questions out there from people we don't hear from—from the guys and gals and women and men who are the victims of these crimes.

Mr. Bloos, I understand the family problem. That's a sad situation, there's no doubt about it.

But we're hearing these things over and over again. They're saying, okay, we want the root causes addressed, we want the possibility of rehabilitation—we want all that. But you people on the justice committee, you're coming up with a law that isn't going to deal with root causes, and so on. But what do you do with those who cross that line? I would strongly suggest that in the public eye, Bill C-9 is a very good direction to go.

[Sue Barnes, Liberal, London West, ON]

The sentencing principles are in this section in Bill C-9. Mr. Roberts, could you tell us whether you feel that the way Bill C-9 is currently drafted is compatible with the sentencing principles that have not been changed in the code?

[Donald Larman]

Perhaps I didn't clarify it enough.

We are in support of Bill C-9. Certain aspects of Bill C-9 we do support--the serious violent offences, violent sexual offences. We also have what we call “non-violent sex offences”, although I'm not certain we'd agree that there's any such thing as a non-violent sexual offence.

We do endorse certain aspects of Bill C-9, but not its entirety.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Mr. Larman, I heard Ms. Hutchison say that in fact you were...well, I'm not clear, because when you spoke, you were absolute in your support of Bill C-9 as it is before us at this point, and Ms. Hutchison was saying that's not the case.

Did I misunderstand you?

[Dr. Julian Roberts]

I think that bill was superior because it contained presumptions. It didn't take it off the table entirely. I think it would have changed the practice of trial courts, and it would also have focused on these more serious offences, and things like fraud, which is a category of offence that's most likely to be affected by Bill C-9, wouldn't be there.

[Catherine Hutchison]

We weren't saying we were in favour of C-9; we were referencing specific concerns we've had about the most serious offences. Then we quoted the principles of Professor Paciocco as a good measure.

Our concerns are the most serious offences, particularly serious offences against children and offences involving loss of life—severe violence.

In terms of the pre-sentence reports, what the probation officers do is assess the suitability of someone for community supervision, but they cannot dictate a conditional sentence over probation. Oftentimes, when, for example, jail is being considered, they will say what conditions would be imposed should that person be in the community, and they would look at their background, but the person could have jail plus probation. The judge would still take the information and put it on a probation order, or the judge could take it and put it on a conditional sentence order. But the probation officer doesn't determine which of those options they're looking at—the offender's history, the response to community supervision, all of their background, and which conditions should be imposed should that person be supervised in the community—so they wouldn't determine which sentence it is.

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

With that answer, I get right into the probation officer representatives. We're here to write law, and we can't really supervise every judge and every prosecutor and every defence attorney. The law would suggest—and it's not going to be changed by anything in Bill C-9—that this conditional sentence remedy is not going to be given unless the court is satisfied that it won't endanger the safety of the community.

It's been my experience, and I'm glad to hear it from people who are more specialized in the field, that probation officers—and I know you may not speak for New Brunswick and all the provinces, but it might be similar across Canada—often write pre-sentence reports that are determinative of a judge's deciding to let this or that person serve the sentence in the community.

If your association is for everything in Bill C-9, is it fair to say that all of your members haven't heard the tune yet and are not singing it? Am I off base?