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.

[Lucie Joncas, Vice-President, Board of Directors, Canadian Association of Elizabeth Fry Societies]

I'll take one minute of your time to address you in French.

First thing , I wish to underscore the importance of maintaining the court's authority. A democracy must respect the separation of the legislative, executive and judiciary branches. Bills such as C-9, C-10 and other pieces of legislation to be tabled in upcoming weeks distort judge's role by significantly restricting his discretionary power.

Canada is considered an important ally in the reconstruction and development of several countries' legal systems, countries which acknowledge and argue that our justice system is one of the best in the world. I would argue that none of the data calls for the reform being proposed. According to government statistics, 90% of cases resolved in conditional sentences of imprisonment follow a guilty plea.

The abolition of this measure will lead to a backlog in the legal system, and I would ask that you take this into account. I have been practising law for the last 14 years and can say that we agree on most of the cases, but we must have the means to carry out our work well.

Thank you.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

I'm the national director of the Elizabeth Fry Societies. I'm pleased to be here along with my vice-president Lucy Joncas, who is also chair of our social action committee.

I want to start by apologizing for not being here earlier. We hadn't anticipated that the Minister of Public Safety would table the report of the correctional investigators. I had to attend to some business there, and I hope to be able to speak to a couple of issues that have come up around that particular report today that directly interact and intersect with some of the issues you are concerned with today.

I also want to start by acknowledging the Algonquin people, on whose territory we have the privilege of meeting. Whenever we talk about criminal justice issues, particularly issues that are likely to increase the imprisonment of people, we know that disproportionately they will be aboriginal people, as has again been borne out by the report of the correctional investigator just today.

You have heard from some excellent people who preceded us. I wish to merely summarize, and I apologize that our brief apparently has not been finished being translated. I was out of town, and it was delayed getting to the clerk. My apologies for that. You will have it in both official languages, hopefully within the next couple of days.

In summary, the issues that we see that Bill C-9 raises have already been covered: the fact that it's not the least restrictive measures that should be available, as has been pointed out; that there is a lack of community resources, period; and that to impose this kind of measure will likely only further mean a draw and drain will be placed on those existing community resources, both in terms of trying to provide alternatives, as Julian Roberts has just pointed out, and also in terms of when those individuals are released from prison—the drain on resources to try to reintegrate them after their life in the community has been interrupted.

We also suggest that when it comes to some of the principles of sentencing—denunciation, proportionality, and deterrence—we believe there is a reason that the judge, and in some cases juries, are made the triers of fact. It's because they have an opportunity to hear and balance all of the evidence that is available in a case. We think this discretion, the ability of the courts to hear all of the information, is not something that should be interfered with lightly, and in this case we feel it would not be the most effective way to proceed.

In addition, in terms of deterrence, there is sufficient evidence—most recently, admittedly, looking at the Young Offenders Act—that the Supreme Court of Canada talked about as being purposeful that deterrence was not included in the act. Part of the reason for that is linked to some of what we know and has already been mentioned by some of the members of the defence bar here: that in fact most people don't think of the penalty. Many people don't even know what the penalty is prior to their involvement in an offence. To argue that deterrence is a principle of sentencing that's applicable, that Bill C-9 reinforces.... Already there is some controversy about the application. Clearly Bill C-9 would only exacerbate it.

In terms of rehabilitation, reparation, and restoration, we've already had cases such as the Supreme Court of Canada's decision in the Gladue case, in Proulx, and in others where we've seen again that in fact those principles of sentencing were not put lightly into the Criminal Code, and that we should be looking at utilizing them and not merely abandoning them in favour of something like the suggested repeal of conditional sentences for so many of the offences, as has been already outlined.

One of the things we're very concerned about related to this bill is the human and fiscal costs the bill will create. It's already been acknowledged through the report that has already been alluded to done by Mr. MacKay that this bill could result in another 5,500 people per year being jailed.

Provincial and federal corrections across the country estimate the cost of imprisoning each person at anywhere between $50,000 and $250,000 per year, depending on the level of incarceration, the nature, the placement, how far they are from other communities. We're talking at the very least about a fiscal increase of between $275 million at the most conservative and $1.3 billion as the increased costs of incarceration that this bill could result in, based on the figures produced in Mr. MacKay's report.

In addition, to talk about women in particular, we know that women are the fastest-growing prison population worldwide.

We just heard across the street that more than 80% of Corrections' budget is used to jail people, and anywhere between 10% and 20%, depending on the jurisdiction, is used for community corrections. Clearly that is not a mechanism that assists people to integrate into the community, and it is therefore not a mechanism that increases public safety.

The reason why women are the fastest-growing prison population has nothing to do with any increased risk they pose. Almost everybody will recognize, and all the research shows, that there isn't a crime wave of women internationally or in Canada, yet they are the fastest-growing prison population.

The correctional investigator's report just released today shows that over the past several years there's been a 75% increase in the number of aboriginal women jailed. Canada is now jailing aboriginal people at the rate of 1,024 people per 100,000, which is between seven and eight times the rate at which we jail other people in the country. Women are disproportionately being jailed as well. The estimate is that in another five to ten years, about 25% of all jail populations will be aboriginal. We're well beyond that already when we talk about aboriginal women in the federal system; they already comprise one-third of the jail population.

So we're talking about a mechanism that will not only deplete resources in the correction system itself, but will also lead to a further depletion of resources in the community. Contrary to Minister Day's assertion today that there is no empirical evidence that the system already discriminates against aboriginal peoples--and I would say women as well--there is abundant evidence when you look at those sorts of figures.

It seems that the only evidence being put forth in favour of this bill is based on American evidence. Everywhere I could find...every academic, every person working in the system who I could speak to in the United States, has reaffirmed that although the U.S. jails from six to seven or more times the rate we jail in Canada, their crime rate has not been significantly reduced, and they still have five times the crime rate we have in Canada.

We're concerned that media accounts of exceptional cases seem to have driven this initiative, yet we know that those media accounts rarely describe the cases involved adequately. We also know from the research of Mr. Roberts, Tony Doob, Cheryl Webster, and others, that when you provide Canadians--the average person in the community, the average person in the street--with more information about the particular cases, very few of them differ in their decision-making from the judges. That's the case for some of the more serious offences and for some of the less serious offences.

We encourage you to not pass this, in this form or in an amended form. It's very clear that what's needed is increased investment of resources in the community to help prevent individuals from being there and to assist people to integrate once they're released from prison.

I'd like to call on Lucie to add a few comments.

[Dr. Julian Roberts, Assistant Director, Reader in Criminal Justice, Centre for Criminology, Oxford University, As an Individual]

Thank you very much, Mr. Chairman.

I want to point out that although I've just come from the University of Oxford, I'm not some presumptuous British academic coming to give some opinions. I lived in Canada for 35 years. It's a great country and I miss it greatly. I'd like to put that on the record.

I've been following the debate about conditional sentencing for 10 years, since its inception in 1997, and I'm quite sensitive to the question of circumscribing the ambit. In fact, the first paper I wrote in 1997 talked about ways you could reduce the scope of the sanction.

Is it a good idea? I think I'll go straight to the question of ambit and Bill C-9 by saying that it may be a good idea, but I think you want to have a more compelling case before you than just a few cases: “Did you hear about the sentence in Windsor? Did you read about the conditional sentence that was imposed?” I think it would be nice to have a really good research record. You don't have that. Unfortunately, we don't have that. The CCJS presentation from a couple of weeks ago raised more questions than it answered. So before you take the step of curtailing judicial discretion, in quite a radical way I'll argue, I think you might want a better case.

However, if we accept for the moment that it is a good idea to circumscribe the ambit of the conditional sentencing regime, the question then becomes, well, is Bill C-9 the appropriate vehicle? And here I'd argue that no, it's not. It's not going to get you what you want, if you want to circumscribe the ambit of the sanction; it's going to create a lot of problems.

Let me explain. The first point has been made by many witnesses, so I won't say much about it. It really is over-broad. I have the document here from a Mr. MacKay of the Parliamentary information research service. If I'm counting right, there are 162 offences there. That's a lot of offences. If the purpose of the bill is to reassure the public or to ensure that victims don't get demoralized when this sanction is imposed, then you want to focus on those cases and only those cases. If you take a conditional sentence off the table for uttering a fraudulent document, I don't think too many members of the public are going to be picketing Parliament Hill. They're concerned about a much smaller range of offences. Unfortunately, Bill C-9 paints a very broad brush--it's very broad.

The second thing is that it attempts to screen out the most serious cases, and it does so with two very questionable and curious filters, as I would call them. The first is the statutory maximum penalty. The statutory maximum penalty is a very unreliable guide to the true seriousness of an offence, as we've just heard. In the report of the Canadian Sentencing Commission, discussed in this very room twenty years ago, the commission made the point that the maximum penalty structure is thoroughly chaotic and needs overhauling. So to pick out offences on the basis of the statutory maximum penalty is not a good idea.

The second point about the statutory maximum penalty takes me to the issue of proportionality. A lot of people have come here and said we need more proportionality in sentencing. These judges have lost sight of proportionality. That's fine. I'm a big fan of proportionality, and I'm very glad that Parliament codified the principle in 1996. What people seem to forget is that proportionality has two branches. The first branch is how serious the particular crime is. The second branch is the culpability of the offender for the offence. That's not me talking; that's section 718.1 of the Criminal Code. If you identify an offence by the maximum penalty, or even by the name of the offence, you have an idea of the seriousness of the crime but no idea of the culpability of the offender. In fact, you're losing proportionality by that route.

The second filter is the decision by the prosecutor to proceed by way of indictment. That is a very bad way of filtering cases, for two reasons. First of all, the prosecutorial decision to proceed by way of indictment will be based upon the file communicated to the prosecutor by the police. That's evidence that has not been tested in an adversarial proceeding. You're only getting half the battle, as it were. You're getting a version of the facts based upon material that has not been subject to an adversarial proceeding. That's number one.

Number two is there's no comparison with the degree to which a prosecutorial decision is going to be subject to review. In order to have a prosecutor's decision reviewed, the standard is very high. This decision will be made out of the public arena. You will not be able to review it; it will be in the shadows. That's one of the things we've always talked about: bringing justice out of the shadows and into the daylight.

The prosecutorial decision to proceed by way of indictment is based upon one version of events that hasn't been subject, for example, to cross-examination and is not really subject to review in the same way that a court can review. The person best placed to determine the seriousness of an offence and the degree of culpability of the offender is a sentencing judge, and he or she should make that determination.

This doesn't mean you can't give a judge or a court some steer. And that's why I think the presumptive approach that Paciocco and other people have suggested is probably a much better one.

The other problem with Bill C-9 is that it creates a clear anomaly: you take the conditional sentence off the table, but you leave probation on the table. What's a member of the public supposed to think of that? The court can't impose a conditional sentence of imprisonment, with curfews and strict reporting requirements and an expeditious procedure to respond to breach, but it can impose probation. That's a real anomaly that's going to play very poorly in the newspapers.

I fully agree with a previous witness that what courts are going to do, in some cases, is say: “Before Bill C-9 I could impose a conditional sentence of imprisonment. I can't do that now, but I don't want this individual to go to prison, so how about a pretty lengthy probation order? I was thinking of a conditional sentence in the range of six to eight months, prior to Bill C-9. Well, we'll have a long probation term of three years. There's no statutory bar to the imposition of a curfew as a condition of a probation order. Well, I'll put a curfew on the guy and extra reporting requirements.”

So the court will turn the probation order into a de facto conditional sentence order, and the effect of Bill C-9 will be to disturb and distort a perfectly good rehabilitative sanction.

There is a place for both sanctions in the sentencing tools available to a court in Canada. You need both.

My last point is, I think it's important not to intrude into judicial discretion unless and until you really have to. Parliament, of course, took away judicial discretion with respect to the offence of murder, where we have a mandatory penalty. But for lesser offences, to take a sanction off the table and tell the judges of this country that you know better than they do what kind of sentence is appropriate in which particular cases is I think a mistake. It's an expression of non-confidence in the judiciary, and I think probably you should be aware of conveying that message.

Thank you very much.

[Andy Rady, Executive, Canadian Council of Criminal Defence Lawyers]

Thank you, Mr. Chairman.

I too am a member of the executive of the Canadian Council of Criminal Defence Lawyers. I've been practising as a criminal defence lawyer in London, Ontario, and southwestern Ontario for the past 25 years.

I note that it would appear that this committee in the past has considered statistics and graphs concerning not just conditional sentence rates but sentencing in general, and I don't propose any further statistical analysis but speak from the point of view of one who is in court almost every weekday dealing first hand with our criminal justice system. But I would ask this committee to give careful consideration to the statistical analysis and extreme care, because without first carefully looking at how the statistics were compiled and upon what base, really the analysis gets us nowhere, in my submission. Similarly, care must also be taken in the analysis of anecdotal evidence, which you have no doubt also heard and will hear more from me.

As has been stated, our association opposes this bill. That's perhaps not a surprise. It is simply too broad and unnecessary in its current form. If clarification is required as to when conditional sentences ought to be imposed, then that can be done otherwise. The appellate courts, the courts of appeal, do it; the Supreme Court of Canada does it. Professor Paciocco also made a suggestion to this committee as to how that can be done through a change to the preamble of section 742.1

No doubt judges must take their cue from the Criminal Code, which is the word of Parliament. But as in all matters, there must be support and confidence in their exercise of discretion, and that discretion should not be unduly fettered or eroded or minimized. Despite the fact that criminal law is a public law--crimes are prosecuted by the state, crimes are against the state--all crimes have an individual component. The individuals concern the victims of crime, the accused persons, the criminals once they've been convicted, the crowns, the judges--all of the people coming to the table. Judicial discretion in criminal matters can be fairly dealt with, and must be fairly dealt with, in our democratic society.

Judges are the ones who can deal with those individual elements before them. A robbery is not a robbery is not a robbery. A sexual assault is not a sexual assault is not a sexual assault. What do I mean? A robbery is someone who goes into the bank with a loaded weapon. A robbery is also the 19-year-old who pushes someone off a bike and takes his bike. They must be dealt with on an individual case basis. To just exclude the offence of robbery would go to both extremes. Sexual assault is similar, and you've heard examples of that, I'm sure, in the past.

Judges are left with assessing all of the aspects of individual cases. Bill C-9 takes away some of that individual assessment by simply stating that no conditional sentence for indictable crimes with a 10-year or more maximum sentence is available. It's too arbitrary. The maximum sentence for a crime is not a good guideline to use in determining the seriousness of the particular crime before the court, probably save and except the case of murder. Also, the fact that Bill C-9 still permits conditional sentences for those hybrid crimes prosecuted by summary conviction is no answer. A minor hybrid offence, as Mr. Bloos has said, may still be prosecuted by indictment as a result of prosecutorial choice or in cases in which the charge is laid more than six months after the offence. You may have a minor sexual assault that may be historical. If it's laid seven months afterwards, it has to be by indictment. It cannot be summary procedure. It may be the kind of offence to which a conditional sentence would apply, but it cannot be.

There also appear to be some myths about conditional sentences, in my experience. They are not granted to repeat offenders for the same crime. They are much less likely to be granted if an accused is convicted after trial, and in the majority of cases they are granted only if the crown prosecutor concurs by way of a joint submission--at least in my part of the province, that's the policy. The fact that they exist does not mean that judges cannot and moreover do not impose sentences of conventional jail for serious crime. They are merely an option in the list of sentences a judge can impose, and my experience is that they are not handed out lightly; when they are, the conditions are restrictive.

There may be disparity across the country in their use, even within the provinces, but Bill C-9 is not the answer. Further guidelines may be required, but that can be done in other ways. Professor Paciocco talked about that.

My clients don't commit crimes because they know that a conditional sentence is available. No one believes that we should not be tough on serious, violent crime, but Bill C-9 is not the answer to that. In fact, it bluntly takes away the option of rehabilitation and restorative justice for less serious, non-violent property crime. It is a halfway mark between the suspended sentence and a conventional jail sentence. It is something in the judge's arsenal when they have to impose a sentence on convicted persons in front of them, and it is not done lightly. It should remain the way it is.

Thank you.

[Marvin Bloos, Honourary Chair, Canadian Council of Criminal Defence Lawyers]

Thank you, Mr. Chair.

The Canadian Council of Criminal Defence Lawyers was formed in November 1992 to represent the voice of the criminal defence bar across Canada on issues of national importance. We have representatives on our board of directors from every province and territory. I'm the immediate past chair of the Canadian Council. I've also been going to the Uniform Law Conference with the federal Department of Justice as part of its delegation when we look at changes to the Criminal Code each year.

I was asked to come today because I could bring a perspective from the west. I practise in Alberta, but before practising there I was with the Saskatchewan Legal Aid Commission for 12 years, where I had a large aboriginal caseload. I now just do appellate work. A good portion of my work concerns appeals on conditional sentences. I work in Alberta, British Columbia, and Nunavut. I have a perspective from Nunavut, because Nunavut, as we've just heard, is very concerned about this legislation--the defence bar, I suspect the crowns, and judges I've talked to.

I've been doing defence work for thirty years, so I have some experience in this area. The Canadian Council of Criminal Defence Lawyers is opposed to Bill C-9. In our view, the wheel isn't broken, so why are we trying to fix it? We have difficulty understanding where the hard evidence is that indicates there's a problem. We know about the individual cases that have been raised, and we don't disagree. Bad decisions are made, and that will happen every day because we have a human justice system. I've spoken to judges across the west, Alberta, Saskatchewan, and the north. I've spoken to defence counsel, I've spoken to crowns, and I've spoken to one probation officer. I don't think the probation officer I spoke to in Edmonton shares the view of the Ontario probation department.

Here are the main themes. I bring about ten points to you from the various individuals I have spoken to. The concern we have and that I bring today is that there will be a great increase in the costs associated with building more prisons, housing more prisoners, and the associated legal proceedings if Bill C-9 passes. We heard earlier that last year in Nunavut there were something like 250 conditional sentences, I believe, as opposed to 180 jail sentences. There is only one jail facility in Iqaluit and it was built to hold 44; it has 64 beds, and there are now 85 inmates. If the CSOs are unavailable, inmates will have to go to Ontario, the Northwest Territories, and possibly to Quebec facilities.

The other difficulty for Nunavut is the number of small communities. I'm not sure how many circuit points there are--five, six, or seven--that the court travels to. If individuals are sent to jail from that circuit point they are sent 1,000 to 1,500 kilometres away from home, in some cases. They are cut off from contact with their families and their support.

The native or Inuit communities in the north by and large embrace the restorative justice model. It is difficult to get a CSO, a conditional sentencing order, there. Defence counsel has to present a plan in advance. There has to be a responsible guilty plea. There has to be an agreement on the part of offenders to work with the elders, take appropriate counselling, and exist within the community.

House arrest is enforced, so they don't get to go out on the land with the rest of the community, which is a very important tradition in the north. That is a very painful experience for the individual. In the small communities everybody is aware who is on a CSO. Any breaches come to the attention of the authorities very quickly. The breaches are brought to the attention of the court. If there's not a good reason, the sentence is collapsed, and the community supports that because they see individuals as having been given the opportunity. If they don't want to take it, then they're removed. Predators are not given CSOs.

If an individual is simply bad news in the community, that is generally known to the sentencing court--there aren't any favourable reports--and the person is not available for a CSO order. Those concerns are reflected by the judges I've spoken to in Alberta who are working on reserves. In small communities, CSOs have a place. There is rehabilitation, education, treatment potential and availability, and the community is aware of the individual, so any breaches get reported. And of course from the aboriginal and the Inuit perspective, when the individual is serving their sentence in the community, they're confronted with the shame of their wrongdoing. Through that we get a rehabilitative, a remorseful, a cathartic effect as they reintegrate.

There is concern brought about the Crown being able to choose whether a CSO is available or not, simply by deciding to proceed by indictment, thus taking away the option of a conditional sentence in some cases. The concern is there will be a disproportionate effect on aboriginal people and people in the north. Some persons have mentioned to me that in close cases the inclination on the trial court, on the sentencing judge, will be to sentence down rather than up. If it's a question of whether or not the person ought to go to jail, it being a human system--judges are human, they hear that human story--the inclination may be to sentence down rather than up, and not necessarily make available the treatment that's necessary.

CSOs are seen to be better for educating and certainly much better in terms of rehabilitation purposes. Recidivism rates, it's generally felt, are lower with a CSO than with jail.

There is a serious concern that there has been a lack of consultation by the government with the relevant groups, such as judges, defence counsel, crown counsel, women's groups, aboriginals, and others.

Conditional sentences also have the benefit of avoiding having youthful first-time offenders or first-time offenders go to jail where they can learn a better trade. They can learn how to hot-wire a car, how to properly break into a house, how to cover their tracks. They can learn all of those things in jail. They won't be learning those things if they're at home.

It is my respectful submission to you that appellate courts in this country are doing their jobs. On the opposite side of defence counsel who are requesting a conditional sentence sit crown counsel, and if a mistake is made, crown counsel can recommend an appeal. These matters go up to the appellate courts. This is one area where I disagree with Professor Paciocco. I think appellate courts are doing an excellent job. In the west--and I can speak of Alberta, Saskatchewan, the Northwest Territories, and Nunavut--the appellate courts are not easy on conditional sentences. You have to earn the right. And if they've been given out improperly, the court wastes no time in reversing that sentence and sending the individual to jail. I can speak from personal experience on that.

My submission is that trial judges are exercising their discretion properly. They're doing it effectively. They're considering the myriad of circumstances that they have before them, such as the aggravating, the mitigating circumstances, the impropriety of the individual--should they have known better or not?--and then they're imposing a sentence that is appropriate to the circumstances. I've seen conditions on conditional sentences that limit who can go to the individual's house to visit. I've had people who have been given a conditional sentence who live in an apartment and have called me up to appeal. They would like to do it on straight time because it simply became too difficult. A conditional sentence is a prison of the mind. You know you can't go out of your house. You know you are limited. You know you can only go to work and come home right after; you can't attend birthday parties; you can't go out with your friends. You're going to get checked on. They can come at any time and ask you for a urine sample or what have you, if that's a condition. So they're not easy to obtain, and in my respectful submission, for the people who are serving them, they're not an easy sentence.

Bill C-9 fundamentally will shift the law and it will put more people in jail, which we regard as a regressive step. We've made great progress.

Initially there was difficulty in 1996-97 in sorting out how they should be imposed. With the Supreme Court decision in Proulx, a lot of that confusion was taken away. Four or five years after Proulx, I believe we now have a good sentencing regime in Canada. In the west there are clear appellate cases that set the guidelines.

In our remaining time, I'm going to turn the matter to Mr. Rady, who comes from Ontario and can speak to the Ontario experience.

[Jolene Saulis]

Okay, I'll slow down.

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.

We would not like to see a fear-based response to crime that would eventually hurt especially vulnerable populations, such as aboriginal women and youth.

Aboriginal women are often convicted of crimes that are related to poverty and crimes that are related to their own victimization. Many of these crimes are currently eligible for conditional sentencing under sections 742.1 to 742.7 of the Criminal Code. More emphasis should be placed upon providing the resources necessary to ensure the safety of aboriginal women and their children within their homes and communities and within society in general. Initiatives are also needed to improve the standard of living conditions for aboriginal women and their children. Without first resolving these issues, Bill C-9 will further compound the issue of overrepresentation of aboriginal women in the prison system.

Aboriginal women play an integral role within our communities. They are the givers of life and are central to aboriginal traditions, government, community, and our ceremonies. They are responsible for maintaining a collective efficacy of our communities. Given that Bill C-9 will result in an increase in the incarceration of aboriginal women, it is predictable that these communities will suffer culturally as collective efficacy diminishes.

It is clear from the Minister of Justice for Saskatchewan that the concerns of compounding the problem of overrepresenting aboriginal populations in jails and prisons is a factor to be considered in this legislation. Mr. Frank Quennell, Minister of Justice for Saskatchewan, has said many times that measures that limit conditional sentences could put at risk the province's unique justice programs aimed at its large aboriginal population. Aboriginal people now make up one in five admissions to the Canadian Correctional Service system, while they represent only 3% of the general population. The justice minister from Saskatchewan stated that Saskatchewan has the highest percentage of aboriginal residents in the whole country, and it has had some success in encouraging the use of penalties focused on native traditions, known as restorative justice, rather than prison time. The programs encourage native communities to find alternatives to jail, such as providing restitution to the victim of the crime, volunteering with a charity, or attending counselling or an addictions program.

These proposed changes may also be problematic for Nunavut, where, in 2005, territorial judges handed down 203 conditional sentences compared to only 189 jail terms.

It is clear, therefore, that there is a need to develop more community-based resources to ensure that aboriginal women who are criminalized are able to successfully complete their sentences within their communities. Ensuring that women are able to maintain their role within their family and community throughout the course of their sentence is integral to the sustainability of our communities.

Canada's judicial system is premised upon Eurocentric values and is at its heart an adversarial system. When an individual commits an act, it is seen as criminal. It is considered a crime against the state, and reparations are generally made to the state by way of punishment. In contrast, aboriginal traditions dictate that wrongs are committed against individuals and the community. Reparations are made as a way of restoring balance to the community and restoring relationships among community members. In an era when people are becoming more disenfranchised from each other, these community-based efforts would go a long way to building much sought after social capital.

In recent years these ways and beliefs have been acknowledged for their effectiveness and have garnered a great deal of support from both within and outside the aboriginal communities. Conditional sentences are well suited to the concept of traditional justice, as they allow offenders to be supervised within the community while giving them the opportunity to work towards restoring the imbalance that resulted from their actions.

Restorative justice initiatives are intended to add cultural relevance to the mainstream criminal justice system, but aboriginal men and women have not shared equally in this experience. Rather than focus on increasing rates of incarceration through the elimination of conditional sentencing, efforts should be made to ensure criminalized aboriginal women are given the opportunity to participate in restorative justice practices.

In addition to being overrepresented in the charging and imprisoning processes of the criminal justice system, aboriginal women are also overrepresented as victims. This victimization is often centred upon sexualized and racialized violence. Bill C-9 does nothing to address the root causes of this victimization and criminalization, nor does it address the sexualized or racialized violence that many aboriginal women face throughout their lives.

No in-depth examination of the impacts of conditional sentencing on aboriginal women, families, children, or communities has been done, and one is needed. This research must capture how conditional sentencing practices are currently applied to aboriginal women and how the criminal justice system, both federally and provincially, can better address the needs of aboriginal women.

The Government of Canada has failed to consult with relevant stakeholders, including the Native Women's Association of Canada, with respect to Bill C-9. In failing to do so, they have not considered the broader social or cultural impacts that this bill will have on aboriginal women, children, and our communities.

The Government of Canada should concentrate on building more diverse community-based programs, such as restorative justice initiatives. By diverse, we mean diversity in settings, since aboriginal people exist in all sorts of settings--rural, urban, remote, and far north. There should also be an examination of how changes in conditional sentencing interrelate with other social and global developments in the areas of social, health, education, and traditional culture for indigenous populations, since Canada's indigenous population is in relationship with other worldwide indigenous populations.

There has been a significant amount of effort put forth by aboriginal populations, in partnership with government, that is meant to deal with the deep-rooted causes of crime. These should not be overlooked by a policy that seeks to send more people to jail. People in jail do their time, and they are not afforded development opportunities. They are burdened with labels and records that stunt their development potential.

Merci.

[Catherine Hutchison, Past President, Probation Officers Association of Ontario]

I'm just going to continue from there.

The reality that we have come to speak about today is that a conditional sentence is not a term of imprisonment; it's in fact closer to a term of probation than to incarceration. It is a community-based sanction that can be used appropriately for certain offences.

The aspect of this sentencing regime that we have noticed disturbs many is the lack of honesty around the description of the sentence. In fact, offenders serving this sentence are not in jail. They live at home; they go to work, school, and appointments and shop for necessities; they attend religious places of worship and have other types of outings. Many such offenders have the house arrest condition or curfews, except for these defined purposes. However, for many offenders, the exception to house arrests are quite numerous. Aside from the house arrest or curfew conditions that may appear, many of the offenders have conditions that would also commonly be found on probation orders.

To state that these offenders are in jail in the community is misleading, in our submission. The main difference from probation in the offender's eyes, where there is no house arrest on the order, would be the enforcement mechanism. Where there is a house arrest condition on the order, the primary difference is the removal of spontaneity in the offender's life, in terms of the ability to plan outings—and obviously they have travel restrictions—and there's a lack of ability to attend non-essential outings, such as for strictly recreational or entertainment purposes.

While we acknowledge and appreciate that some offenders are most diligent in adhering to the terms of their order and are working towards rehabilitation, we also acknowledge that many aspects of the sanction depend upon an honour system. When the offender is at home serving his or her jail sentence, he or she may enjoy the freedoms that the rest of society enjoys, including having friends over, having parties, watching television, using the Internet, having unlimited telephone use, enjoying time with their families, etc. This is not jail, and calling it such is undoubtedly one of the contributors to the erosion of public confidence in the justice system. Further, for victims who may feel threatened by the presence of the offender in the community, advising them that the offender is in jail, and yet at home, may not address their fears or needs for safety.

To indicate that such a sentence has a great deterrent value for serious offences and offenders is not accurate, in our opinion, and continues to ignore the many resources and bodies of research revealing that the public, front-line professionals and the victims are not supportive of community-based sentencing for very serious crimes of violence. Professor Roberts is here today, so I don't need to go into much of the research, but to ignore these bodies of research and the Department of Justice's own fact sheets is to ignore those who are key constituents in the justice system.

Aside from these issues, we've also observed the comments made during some of these hearings that jail does not serve as a deterrent. While some of the most recidivist offenders may not respond to any sanction or attempt at rehabilitation, there are some for whom jail is a deterrent. If jail did not have any deterrent capacity, then why are offenders, for example, cautioned that non-compliance with various types of sentences will result in a jail term? If no deterrence existed, why do we not have line-ups of offenders at our doors to tell us of all the undetected offences and breaches they have committed? The reality is that conditional sentences carry less deterrence than true incarceration, and this further explains the frequency with which offenders will plead guilty in exchange for this opportunity to be in jail at home.

In addition to these issues around the transparency of the description of the sentence, there are issues frequently mentioned and questions raised, including the level of monitoring, resourcing, and enforcement of conditional sentence orders. We do have comments on each of these, if time permits, but we may have to leave those for later.

We are relieved that the very frequent practice we were seeing of using conditional sentencing in child sexual offences, both child pornography and contact offences, will diminish somewhat due to the passage of Bill C-9. The concerns we would still have related to this bill is that some of the hybrid offences that could have child victims, such as sexual assault or assault causing bodily harm, could still result in a conditional sentence. So without an amendment to this bill, we would hope that the sentencing principle related to abuse of children would be closely adhered to, and we would hope those offences wouldn't result in a conditional sentence.

For those who are concerned that the passage of Bill C-9 would result in excessive sentences of incarceration, a lack of community supervision, and/or a lack of restorative justice opportunities, we do have some comments of relevance or points to remember. We probably don't have much time to get into them here, but there are, as people know, the aggravating and mitigating factors remaining, and judicial discretion to determine the sentence would remain, so we would still be going from the range of a suspended sentence plus probation, up to, obviously, incarceration.

It's been recognized that in many conditional sentences the term is longer than the period of incarceration would have been. Also, taking into account that offenders serve only two-thirds of the sentence in jail, the term of actual incarceration would be less than the conditional sentence.

The reality is that if the circumstances of the offence and the offender were so compelling as to warrant a more lenient sentence, this would be the situation as it stands now. We note that some offenders wouldn't go into custody at all. They would get straight probation.

Note, too, that some of these offenders, first offenders with one of the potentially excluded offences, would be eligible for Ontario parole. The rates of provincial parole in Ontario fell from about 59% in 1993-94 to about 22% in 2003-04. One of the significant contributing factors was conditional sentencing. Some of these offenders will in fact be suitable. In such cases, if they were given a term of incarceration, they might become eligible for parole at one-third and then go on probation. So there was still adequate opportunity for community supervision of these offenders.

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. It is Monday, October 16, 2006.

Here are the orders of the day: pursuant to the order of reference of Tuesday, June 6, 2006, Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment).

Appearing before the committee are a number of witnesses. I'll just refer to the organizations they represent: the Probation Officers Association of Ontario; the Canadian Council of Criminal Defence Lawyers; the Native Women's Association of Canada; and the Canadian Association of Elizabeth Fry Societies. We also have one individual, Mr. Julian Roberts.

First of all, I want to apologize to the witnesses sitting before us. We had some committee business that we had to contend with, and unfortunately it ran a little longer than anticipated. I know you were inconvenienced by having to stand out in the hallway. I apologize. The committee apologizes to you.

I would ask that we now proceed according to the order that appears on the orders of the day. The Probation Officers Association of Ontario can begin.

Criminal Code

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

Mr. Speaker, there seems to be a lot of support for this bill because few questions and comments have been raised. At first glance, this is an interesting bill to which members of this House and litigants should pay close attention. This bill would have a direct impact on litigants like me.

I have been practising law for 25 years. For the past 10 or 15 years, I have focused on criminal law. Bill C-23 is therefore of great interest to me. It will probably also be of interest to my colleagues in the legal profession who specialize in criminal law or who have been practising it more and more over the years and have become very knowledgeable about it.

Bill C-23 is interesting. With all due respect to the Minister of Justice, I would have liked this bill—which is neither right-wing nor repressive ideologically—to have been introduced before bills C-9 and C-10. We are currently debating these bills in committee, and they seem to be based on repressive right-wing ideology. In contrast, Bill C-23 is interesting in many respects.

As I was saying, for 25 years I was a lawyer and argued all sorts of criminal cases. It is not unusual to have clients or cases where it is a matter of possession of break and enter instruments, as this bill addresses. Time and time again attorneys general in the various provinces—the Attorney General of Quebec who administers criminal law in Quebec as well as the Attorney General of Canada—have been told that this does not make sense. Our client was automatically accused of breaking and entering and possession of break and enter instruments. He was accused of a criminal offence because that act was automatically considered as such. This seems utterly unusual and unacceptable to us.

It seems that Bill C-23 will at least amend that—without removing it, of course—and will allow a person accused of breaking and entering and of possession of break and enter instruments to be tried by summary conviction.

In the Criminal Code there are two types of offences and that is what I want to talk about now. There are offences that can be tried by indictment; they are indictable offences. Murder, homicide and all sorts of offences are examples. There are a number of such offences in the Criminal Code. Other offences are called dual procedure offences. The Crown prosecutor filing the complaint can decide to try by indictment or by summary conviction. In summary conviction cases, if the person is found guilty or pleads guilty, he or she will receive a maximum fine of $2,000 or a six month prison sentence or both the fine and sentence.

This new bill, and I think this is important to point out, proposes a number of amendments. It is a large bill that deserves our time and attention and careful consideration as to how it will be debated in committee.

Criminal procedure sets out how to proceed in criminal cases. Let us take for example an accused who is to receive documents. If this bill is passed, it will provide for a means of telecommunications to be used to forward warrants for the purpose of endorsement and execution in a jurisdiction other than the one in which the search warrant was obtained.

In French, that means that if someone was arrested in Rouyn-Noranda and they wanted to search the person’s residence in New Liskeard, Ontario, the original document was required. They sent it by car, from one police officer to the next, until it got to Ontario, and that could take hours. If this bill were passed, it would be possible to send it by fax, for example, with the original document to follow by mail.

On reading the bill, I think that it would be possible to send it by Internet, by e-mail, so that it could be executed as soon as possible. That is a good thing.

Changes are made to the procedure for challenging jurors, among other things, to help to preserve their impartiality. This is also a very good thing, which the bill will bring in if it passes. In the jury selection process, particularly in terms of challenges, this means that we will be able to preserve and protect the impartiality of jurors, which is the very foundation of a jury trial.

There are also a host of other details, such as summary dismissal by a judge of the court of appeal where the appeal has been brought in error. Before, a motion had to be made, saying that it had been filed in the wrong place and asking the judge to dismiss it. Now this will be handled expeditiously.

Where it starts to get interesting is in an appeal to a court of appeal from an order of a superior court relating to objects that have been seized. For example, in the past, you could not move forward as long as the court of appeal had not ruled. You had to wait, but now you will be able to proceed.

Turning now to trials by way of summary conviction for a co-accused where the co-accused fails to appear. This avoids a lot of delay. Before, the accused appeared, but the co-accused was not present, for one reason or another. The judge then adjourned the appearance until the co-accused was located. Now, if this bill is passed, the accused could be tried much more expeditiously than before.

There are all sorts of things like this, and useful things. I mentioned earlier the reclassification of the offence of possession of break-in instruments to make it a dual procedure offence. That may be useful.

Certain things are even more useful, but would almost run counter to Bill C-9. We know that that bill would eliminate the possibility of suspended sentences for a host of offences.

We all hope that this bill will not come before this House again, as introduced by the hon. Minister of Justice. On behalf of the Bloc Québécois and probably many of my colleagues on both sides of this House, I would add that Bill C-9 does not really accomplish what justice demands: that judges have the opportunity to hand down individualized sentences.

Bill C-23 contains some interesting amendments. The bill provides for the power to order an offender in custody not to communicate with identified persons and creates an offence for failing to comply with the order, which increases protection for victims. We had long been calling for this. Defence lawyers had been calling for this. Often, our client in detention would receive telephone calls from victims who wanted to talk to him, and he would call them back. In future, offenders will be prohibited from doing so. If they do not comply with this order, they will be charged with a separate offence of failing to comply with a court order.

The clarifications with respect to the application of impaired driving penalties had long been called for.

Among other things, the possibility of using an alcohol ignition interlock device was raised. This device makes it possible for an individual found guilty of impaired driving to drive a car. The offender has the right to use this device after three months.

We can now provide clarification. Previously, the matter was very complicated, and it still is. For example, a taxi driver who also owned his own car would have to have two alcohol ignition interlock devices. If this bill is adopted, it seems that things will be less complicated. We might come to a consensus about placing the device only in the principal vehicle. It is starting to look interesting.

Probably two of the most important aspects of this bill are the suspension of a conditional sentence order or a probation order during an appeal.

Today, October 16, if an accused is found guilty by a judge, he is subject to a probation order or conditional sentence order and if the accused decides to appeal, the orders remain in force. Thus, even today we still have serious problems. I hope we will be able to change this quickly.

As criminal lawyers we tell our clients that we will appeal their sentence, but that the probation order is in force. The probation order may be for a term of two years and it might be one year before the appeal is heard. The individual would have been subject to a probation order for one year for nothing.

Henceforth, we can at least apply to the court of appeal and ask the judge, upon filing of the notice of appeal, if it would be possible to suspend the sentence. Even today, this can be requested. However, criminal lawyers who live, as I do, in a region such as Abitibi-Témiscamingue are ofter forced to go to Quebec City to do so. This results in additional expenses for the accused. Thus, we believe that this is a very useful amendment. I hope it will be adopted quickly.

One of the interesting comments and one of the even more interesting amendments, is the power to delay the sentencing proceedings so that an offender can participate in a provincially approved treatment program.

This is important and here is what it means. When judges hand down a decision and find an accused guilty, after a fair trial, they will very often delay sentencing, by asking, say, for a pre-sentence report. This is a report that establishes the circumstances of the charge, the circumstances of the offence and who the accused is. Generally a pre-sentence report is prepared at the request of the accused and most often in very important cases.

The accused may in fact have a long criminal record. For instance, he may be charged with manslaughter or found guilty of criminal negligence. These are often very serious cases. The following example comes to mind. An accused found guilty of, or who pleads guilty to, impaired driving causing bodily harm, or causing death, is automatically subject to a prison sentence. The court will generally hand down its decision.

However, under the proposed amendment, the court could delay sentencing until the accused completes his addiction treatment or another appropriate treatment program.

Take, for example, an accused who is sentenced for domestic abuse. He decides to attend a treatment program or violence counselling. The judge hands down his decision, stipulating that the accused must continue his therapy. The accused continues his therapy, but the judge does not know anything about it. Is the accused still dangerous?

So there were some cases—and we defended many—in which the judge, in a case of manslaughter or impaired driving causing bodily harm, handed down his sentence without knowing what the effects were on the accused and the victims.

If this amendment is passed, sentencing could be delayed. Sometimes it takes from three to six months before we get all the reports. Nowadays we do so by consent, but it is illegal.

So the proposed amendment could make it very interesting for the courts in their decisions.

Moreover I would like to urge the House to look very seriously at Bill C-23 with regard to anything to do with both official languages. I was able to take a quick look at the proposed amendments proposed to section 730.

It is proposed that section 720 respecting probation orders and treatment orders be amended. As far as probation orders are concerned, the accused is entitled to have the documents. So someone who has been found guilty must receive the documents and they must be explained in the official language of his choice. Let us take the example of a francophone accused who works in Calgary or Fort MacMurray. These are areas in which English predominates but someone who asks for his trial to be in French can get it.

I draw your attention to subsection 5 of section 732.1, where it is stated that a copy of the documents explaining the conditions must be given to the offender in order to ensure that the terms of presentation and so forth are respected. The following would be added to that subsection, “For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.” This subsection deals with the fact that when a court issues a probation order it gives a copy of the documents to the offender.

This casts some doubt on what the parliamentary secretary told us earlier when I asked him the question. We will have to pay extremely close attention when the amendments set out in Bill C-23 are being examined. It is fine to talk about bilingualism, but bilingualism has to be applied. To achieve that, it is necessary that a person not only receive all the information in his or her official language, but that he or she should understand the information and that someone should take the time to explain it.

On the whole, this is a very interesting bill. The amendments proposed in the bill could clarify the provisions of the Criminal Code and simplify some judicial proceedings.

Mr. Speaker, I see you signalling that I have only one minute remaining. I will proceed directly to my conclusions. The Bloc Québécois is especially pleased to see amendments that contribute to improving the work of judges by giving them greater discretion. These measures will give judges better tools to do their job, which is to determine the most appropriate sentence. And this will contribute to the objectives of deterrence and reparation, as well as an objective that is too often forgotten by our friends opposite in the government, which is that of rehabilitation.

In closing, the Bloc Québécois will be in favour of this bill and we hope that it can receive the support of this House as quickly as possible, in the interests of improving justice.

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

Mr. Speaker, with all due respect to the hon. Minister of Justice and Attorney General of Canada, CPC, I will put my first question to the hon. member who just spoke. It will probably also concern the minister, who is sponsoring this bill.

It is surprising that we have to wait a few weeks, or even a few more months, before debating in committee this legislation, which was introduced in June, because it is an important measure. I do not understand why the government waited like this. Considering that this bill does not reflect a right wing ideology, it should take precedence over Bills C-9 and C-10. However, there is one issue of concern to me, because I practised criminal law for 25 years and this is an interesting piece of legislation as regards criminal proceedings: how will the government ensure that the accused is informed of his right to be tried in one of the two official languages? That is the first question.

Secondly, how can the accused be sure to obtain a translation of all relevant documents, including those relating to the indictment and the preliminary inquiry?

Of course, this is not a problem in Quebec, but I am thinking of my clients in Calgary, Vancouver, Winnipeg, or in other places in Canada where English is the official language. As we know, in those regions documents are only translated in French when there is time to do so.

Before introducing this legislation, did we make sure that the constitutional right to be heard by a justice would be respected? This means the right to appear before a judge who can speak and understand French fluently—not someone who just took language courses on the weekend—and who can explain the principles that underlie this bill.

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

Mr. Speaker, I listened carefully to my colleague and I am in complete agreement: Bill C-23, An Act to amend the Criminal Code (criminal procedure, language of the accused, sentencing and other amendments) needs some fine tuning.

I trust that my colleague believes, as I do, that this is probably one of the most interesting pieces of legislation tabled by this government in the past few months. However, I would have this to say. Unlike Bills C-9 and C-10, Bill C-23seems very interesting at first glance. I believe that we, the members of the Standing Committee on Justice and Human Rights, should spend some time on it as it really strikes me as very important.

This is the question for my colleague: does she know whether or not the Law Commission of Canada—which our current government has just cut or would like to abolish—helped draft Bill C-23 and made any recommendations? In addition, are these the recommendations found in Bill C-23? If yes, which ones are they?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Speaker, I look forward to exploring in committee all areas of the bill and this question and all questions the hon. member may have, which can be put to our witnesses there. Some of the provisions dealing with jurors have dealt with not wanting to taint the sworn jurors when there are questions being put to potential jurors by crown attorneys and by defence lawyers. This is one area relating to jurors which we have to address to ensure that people get a fair trial.

Most of what is contained in Bill C-23 is there to streamline our judicial process, to make it more effective and to take out some of the ancient modes used in the past. Bill C-23 recognizes that we are living in a new era where we have to use a more streamlined system. It recognizes that technology has moved on, so we as a government have to move on in order to better protect society.

That is the main thrust of the bill. It is not to make major substantive changes. We have other bills, such as Bills C-9 and C-10, that make some very substantive changes to the Criminal Code. Bill C-23 is going to make our entire system more streamlined without making major changes to the code itself.

[Guy André, Bloc, Berthier—Maskinongé, QC]

Bill C-9...

[Det Sgt John Muise]

Not everybody knows this about me, but over the course of my career as a police officer, I have spent a lot of time working with academics, social workers, and people who were on the front lines trying to help children. I actually was one of the founding members of the original street crime unit, which was the first of its kind in Canada. It was a community-based, education-enforcement hybrid. We worked very hard with local communities and schools to try to get kids before they ended up in prison. We put substantial effort into getting them on the straight and narrow. There was a lot of work involved. Sometimes we were successful, and other times we were not. It's something I'm very proud of. It seems like ancient history now, but certainly the legacy has taken root across the country and there are many police units much like that.

Having said that, there is also another bunch of folks who, for whatever reasons, have run off the rails. When they're sentenced to periods of incarceration, it's either because they already have very lengthy criminal records or they've done something pretty serious.

My experience in and out of court rooms over 30 years is not one of throwing the book away. I see that these judges really work hard not to throw the book at people. So I don't see this sort of sensible half measure for Bill C-9. Parliament has said it's ten years or more. I suspect when they created those maximums.... I know for instance that Mr. Lee and other members of the Liberal Party worked hard to introduce many bills to increase the maximum. So here we are. I guess they saw them as sufficiently serious crimes.

Citizens have lost faith in the criminal justice system. I see this as a natural first step, and like Mr. Thompson, I agree that it's just one piece of it. We have a lot of work to do in terms of our parole legislation and some of our other dangerous--

[Guy André, Bloc, Berthier—Maskinongé, QC]

Thank you, Mr. Chairman.

I would like to begin by welcoming our witnesses.

I would just like to quickly react to some of the things that have been said here today. I am a social worker by profession. This is the first time I have sat on the Standing Committee on Justice and Human Rights. My initial reaction is to say that we know full well that social conditions have a tremendous impact on crime rates, because a lot of people are disadvantaged and lack appropriate social supports. Often there will be higher crime rates in these groups. As a result, when social programs are severely cut back -- this is a message for the Conservatives -- crime rates go up.

My question is for Mr. Muise, and I would ask all of you to comment as well. As you and I both know, Bill C-9 adds to the list of offences for which a judge will no longer be able to hand down a conditional sentence, even when he determines, based on all the facts, that it would be the most appropriate sentence.

Mr. Muise, you seem to favour that direction. You basically agree with the idea of adding to the list of offences for which conditional sentences will no longer be available.

Do you have any statistics or other certain facts that have led you to take that position, basically saying that we should be criminalizing more people and putting people in jail as if prisons were places where there can be social rehabilitation?

In Quebec, we very much believe in prevention. We also believe in criminalization, because in some cases, that is the best solution. However, prisons are not places where there can be social rehabilitation. I don't believe that putting someone in prison for ten years and not giving him an occasional opportunity to reintegrate into society via various programs -- as Ms. Schurman was also saying -- is a better option. All the money that will be invested in these prisons, because of longer sentences could, in my opinion, be more effectively invested in measures aimed at social reintegration.

Are there any statistics that have led you to take this position? I would also be interested in hearing from Ms. Schurman on this, as well as from the others.