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.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you, Mr. Chair.

Goodbye, Mr. Mauser, and thank you.

To the rest of you, thank you for your interventions today. It's good to have you here.

I know it's a given that there isn't a person in this room, whatever your political stripe or whatever you stand for.... Basically what we're trying to do as a whole is to remember that there are victims out there and they need help. There are just too many victims, and we want it to stop.

Our judge of all we do is the public. I know that in the House of Commons, since I've been here, thirteen years, several million signatures—I'm not talking about thousands—have come in on petitions asking us to do something about the crime in this country. That's from the people who are paying the bills, who pay our salaries, who we serve, and they are not happy with the justice system as we know it today.

If you dared to put a poll out there, I don't think any of us would question for a moment that you would never find a poll indicating that we would get a very high approval rate on our justice system. You certainly wouldn't get it from those who are trying to enforce the laws. I deal with lots of police departments, lots of officers of the law who are very frustrated that they see a revolving door in our justice system, with them re-arresting the same people over and over.

The kinds of crimes that are happening that are really on the rise—and I've watched them carefully since 1993, when I came here—are crimes against children. It's getting absolutely pathetic. I know we've had to have child pornography crime units in Toronto. I know, John, that you're well aware of who they are, how hard they've had to work. With the increase in child pornography and those things related to it, it has turned into a billion-dollar industry. How could that possibly happen? I don't think it would happen if you had a good, solid type of justice system. That's a failure. We're failing our children when this gets to these proportions.

When you go through the justice system, you see farmers going to jail because they sold their own grain—not stolen grain, their own grain. They go to jail, no questions asked, and we bring down the hammer. For a poacher who shoots an elk out of season, there are no questions, bang, it's into jail--you don't dare do that. Mind you, if you rustle a bunch of cattle in my country, they have a sign out there—you were talking about signs—that says “Notice to cattle rustlers: We do not phone 911, we phone Smith & Wesson”. When a justice system leads to those kinds of remarks coming back from the public, the public is not happy, so I think this is an effort to try to show the public that we're interested in doing something about it.

Fortunately, over the years, I came from a profession where I really was high on the popularity list. I was a school teacher and a coach, and everybody loved me. Suddenly I got into politics, and right now I'm down there with the used car salesmen, the lawyers, and the rest of the politicians, at the bottom of the heap, because the public feels we've failed them, and we've failed them dismally.

I suggest to all of you, particularly the Bar Association, that, yes, we believe in rehabilitation, yes, you have to do the best you can, but our major focus has to be on the victims. It has to be. If we don't illustrate to the public that this is exactly where we're focusing and that it's our major concern while we deal with trying to rehabilitate and all these other things, we're just going to continually lose ground. We cannot let the perpetrators who violate our laws gain any more inches. They've gained enough. That's the direction we want to move in with this kind of legislation.

Bill C-9, in my view, is a small step in the direction that we need to go to get that pendulum swinging back so that our society will have some confidence in what we're trying to do. They do not have that any more, without a doubt. I believe this bill is a good step in the direction of getting that confidence back. It's not the be-all and end-all. I know there are lot of things to do.

I certainly don't want to see conditional sentencing thrown out the window. There are certain times when it's the right thing to do. But we're trying to sort it out as much as we can in this committee and in this House.

I thank you for your presentations. No, I don't agree with some of you, and yes, I do agree with a lot of what you've said.

I don't want to have you answer any questions. I'd only like you to think about the public. We have created a very unhappy public, and we had better start doing something about it. We need people like you to help us.

Thank you.

[Det Sgt John Muise]

Thank you, Mr. Moore.

I've talked to victims both as a serving police officer and also in the six years I spent at the Office for Victims of Crime, where we managed complicated cases in which victims were being run off the rails by constituent members of the justice system. There is also, of course, my work at the Canadian Centre for Abuse Awareness. These victims were frustrated.

There are a large number of people who don't see the proportionality in staying at home. They are not just crime victims and survivors and front-line criminal justice professionals, but average, hard-working folks, the kind of people with whom I communicate on a regular basis because I'm with this organization. When you tell these people this is actually a sentence of imprisonment, they don't get it; they don't understand it, because it doesn't make any sense to them. Quite frankly, to average people, average folks, hard-working Canadians, it doesn't make any sense, and it doesn't make any sense to me, and I'm somebody who has been in the justice system for 30-plus years. I know some of you think I come at this with a sledgehammer, but I understand the nuances of the system.

I'll go back and repeat myself at the risk of doing that. Judges do a great job of being triers of fact, but I think that generally speaking, in this country, they've lost their way in terms of responding to the needs of the community, the needs of crime victims, and the needs of Canadians in terms of justice and enhanced public safety.

Ms. Schurman mentioned about prison being a failure. Prison's a failure because the way we sentence in this country doesn't work. It's a failure because you're guaranteed automatic parole at one-sixth. It tells you nothing; it tells you nothing about learning and responsibility. You're guaranteed automatic parole at two-thirds, even for the most serious, violent crimes. It's statutory release; you get out of jail no matter what, even if you have 200 institutional violations, so in other words, even if you've been a really bad boy in prison, we are letting you out. It's as simple as that.

You wouldn't do that with your son or daughter when they've run off the rails. You wouldn't say, “You've been really bad for the last two weeks. That punishment I gave you of three weeks? I'm going to cut it off now, because you've been really bad.” That's what we do in this country. It's no surprise that prison has been a disaster.

In the United States of America it's equally no surprise--and I understand there's a lot wrong with what happens south of the border, and we could all have a wonderful debate about that for hours on end--that when they identified the small group of offenders who commit a disproportionate amount of crime and locked them up, the crime rate dropped in the country, and it dropped precipitously.

I think if we took some of those lessons and put them in play in this country and in Bill C-9 in conditional sentencing, and a variety of other parole and sentencing issues that our Martin's Hope report speaks to, we could actually bring down the crime rate, enhance public safety, and--because it's not incompatible--assist with habilitation or rehabilitation of offenders.

[Det Sgt John Muise]

Yes, thank you, sir. I have just a couple of things.

One is that I don't think Bill C-9 in any way takes away from the opportunity for a judge to customize, to engage in judicial discretion, or to be flexible. Judges are wonderful triers of fact. They do a great job of that, and all Canadians are grateful, but I think they have lost sight in terms of proportionality. That's why we need Bill C-9.

If we look at the purposes and principles of sentencing in section 718--mine is from 2006, so I hope I'm up to date; I have to get up with the Canadian Bar Association here--it says:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Staying at home and hanging out doesn't do that. It's as simple as that. It's not imprisonment. We can't change that; that's what it's called. It is not imprisonment, yet now, because of Regina v. Proulx, it has become the accepted replacement for imprisonment, and it's inappropriate for the vast majority of offenders who get it.

I didn't bring a laundry list of disasters gone wrong in the criminal justice system. I saw that the minister did that at his appearance. I could have brought a list of 200 cases of disasters and lives ruined, souls destroyed, families broken, dreams that will never be reached. The principle of proportionality is not appropriate for so many of those offenders.

Thank you.

[Adrian Brooks]

We are asking you to look at these three options suggested on page 7 of the French and page 6 of the English.

The reason for this is that it is our view that there is, to whatever extent, a problem perceived as it relates to serious violent crime, and that there are other offences swept up by Bill C-9 that do not have that concern. Accordingly, we have made the suggestions, as you have referred to them.

If you are looking for an example of how we are thinking of it or articulating it, you will remember in other provisions of the Criminal Code that there are listed offences for which the particular provision is applicable—for example, taking DNA at sentencing, or wiretap offences. The specific offences are listed, and the specific provision is made applicable to those specific offences. That is really the thinking that's at the heart of the section you've referred to.

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

Thank you.

This question is for our witnesses from the Canadian Bar Association. I read your report with great interest, as I usually read material from the Canadian Bar Association. On page 6 of your brief, you say: “We suggest consideration be given to the following alternatives [...]”

Should I conclude from this that the goals set out in Bill C-9 are inappropriate, in your opinion, and that we should consider your three recommendations? If so, how are we to go about doing that?

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

If Bill C-9 passes, do you believe that major principle, that is so cherished by our courts of appeal, the Supreme Court and even the majority of lawyers in this country, will be completely demolished?

[Isabel Schurman]

It is not fair to the crown prosecutors and it would create an image of an arbitrary, unfair system of criminal justice.

What of the image of our judges? The judges do not often speak publicly--I don't know if they've been here to speak--but they must also be so concerned that Bill C-9 is sending a message that we don't trust our judges, and that Bill C-9 is removing their discretion as to what they believe will keep Canadians safe.

Faced with a candidate deserving a conditional sentence of imprisonment but charged indictably, the judge may be tempted to sentence too low because the personal price of prison as compared to the gravity of the offence just seems too high. Why remove a tool that has been used in 55,000 cases since 1996?

Certainly there are examples where the conditional sentence of imprisonment did not seem appropriate, and the press releases seem to show that, but there have been studies indicating that when proper information about the details of a case are given to Canadians, they will often disagree with the press report and agree the sentence was appropriate. The judges see all that information; they have all the evidence. The evidence is rarely simple--it's not a bad person did a bad thing. The evidence is evidence of addictions, of learning disabilities, of mental illness, of societal problems, of desperation, of problems requiring therapy, of complex individuals who can remain functioning members of society. Judges are the best placed to evaluate this.

Why remove a tool that was not invented here? Europe has successfully used the conditional sentence of imprisonment for a very long time, European countries with lower rates of violence than we have here or than our American friends have south of the border. Our friends to the south have never tried the conditional sentence of imprisonment. Do we really want to do what they've done--fill prisons and see no correlating drop in the violence in society?

The conditional sentence of imprisonment--and on this I'll terminate--brought important changes to Canada that the committee may wish to be aware of. The judges would not use it until probation services had the funds. So probation services across the country were given the funds by the provinces to make sure that the conditional sentence of imprisonment was enforced. It was used when probation was not enough. The Supreme Court of Canada said that. Don't confuse it; don't say it's just another probation. It was used when probation is not enough but when fewer than two years incarceration is enough. Those are the parameters. It's not used in any crime at all.

The comparison was made here before this committee to probation, saying that a suspended sentence is the same thing as a conditional sentence of imprisonment. It is not, ladies and gentlemen. The conditional sentence of imprisonment, a breach followed by an intervening event, is punished by a consecutive sentence, and you cannot do that with a probation order. This is a much more severe, much stronger law-and-order tool than it's being made out to be in some circles.

Criminal Code

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

Mr. Speaker, it is a pleasure for me to rise today on Bill C-23, which will amend the Criminal Code in several respects.

This is an omnibus bill concerned more particularly with criminal procedure, the language of the accused, sentencing, and other changes.

The proposed legislation is essentially a cleanup bill with the objectives of ensuring that the Criminal Code is up to date and to maximize its efficiency. Bill C-23 includes many substantive amendments to the Criminal Code, changes that touch on a number of issues, mostly to modernize the Criminal Code.

This is why we believe that this bill, if sent to committee to be thoroughly examined, would result in good law. At committee, experts can be called as witnesses to give evidence on the efficacy of each section of the amendments, whereby we might get closer to improving the Criminal Code, which we all recognize is a tired, well-worn and incomplete document for our criminal justice system, but it is the best we have had.

I do give compliments to the other side in suggesting that the Criminal Code was the child of a Conservative finance minister and subsequent prime minister in the 1880s. It has been patchworked together over the years, but no full and final revision of a modern Criminal Code has been undertaken, and it is long overdue.

However, this bill seeks to band-aid and fix up what we can to modernize certain sections of the code and we on this side welcome its implementation.

Some clauses included in Bill C-23 are aimed at keeping up with today's society, such as increasing the maximum fine for a summary conviction offence from $2,000 to $10,000. Although this might seem to be quite a jump, I believe that judges, with their cautious deference to the circumstances that exist, will use fair determinations to determine if an accused, based on capacity to pay, can make the payments and if the amount of the fine is indeed proportional to the person's capacity to pay.

Here I want to interject something that I think is very important to the whole tableau of justice bills that are before the House in this session. The 39th Parliament has seen a plethora of legal bills, but many of them and many of the actions of the government, despite the inundation of law, have really ripped apart the sense that we respect the judiciary.

I think of the delayed report on justices' salaries, now further delayed, we understand today. I think of the comments made by the Prime Minister of Canada in this House that Liberal lawyers were running the court challenges program. I think of the comments made by the Minister of Justice at the Canadian Bar Association conference in St. John's, and of those of the Prime Minister about Liberal judges made on occasions during the campaign of December and January of last year .

Notwithstanding that everybody might have a problem with certain appointments, when a judge becomes a member of the bench, he is a judge. He is an “Honourable Justice”. He is an interpreter of the laws. He deserves all of that respect.

The government has done nothing to further the cause of respect for the judiciary. It may be the on first day of civics class in grade 1 or grade 10, or in undergraduate or law school, that one learns that unless people have respect for the law through its judges, the law will not have the impact we all need it to have.

As the member for the riding of Moncton—Riverview—Dieppe, which is probably the most bilingual and most bicultural riding in the country, I am happy to see that Bill C-23 will reinforce the right of accused to be tried in the official language of their choice, and more particularly, the right to a bilingual trial in cases where two or more accused speak different official languages.

This is an important measure to ensure that all Canadians can have justice in either official language. As I was saying, in my community it would not be uncommon for an anglophone and a francophone to be tried together. The change to the law and the proposed amendments will ensure a trial in the preferred language of the accused. This is basic to our judicial system and would be just and fair.

At this time, I would also like to interject that this side of the House is for safer communities. This side of the House is for law and order. This side of the House is for the victims of crime as much as anything else that we stand for.

We differ in the ways to ensure that victims are safe in their communities. It is not enough to grandstand with bills that have catchy titles and catch the six o'clock news. To make people feel that they are going to be safer, the laws have to be effective. For the laws to be effective, institutions like the Law Commission and programs like the court challenges program are essential to ensure that we have a just and equitable society and that people feel safe in their communities.

More than that, in the situation and the environment where there is some $13.2 billion in surplus, we need to see that there are more resources in the community to enforce the law and to enforce programs that the police forces believe in, such as problem-oriented policing, which means having the police presence in the schools and in the community to prevent crime from happening. And that is to say nothing about the whole concept of rehabilitation, which must wait for another day.

Another aspect of the bill that I find very interesting, at least in principle, is the aspect of the issues surrounding subsequent prohibition from driving for consecutive offenders on impaired driving charges. As a father of three beautiful young girls, it enrages me to hear on the news of repeat drunk drivers and the menace they pose to our society.

I am proud to say that the president of Mothers Against Drunk Driving is a New Brunswicker. I am proud to say that the very first meeting I had in my constituency office was with the president of Mothers Against Drunk Driving. I know it is especially important to look and to act as if we as parliamentarians care about what happens when someone gets behind the wheel of a car impaired, not for the first time and certainly not for the last time if they do not get consecutive sentences that restrain them from driving.

Some people cannot get the message. They must be restrained from driving. This bill does that. It is long overdue. I think all sides can agree with the wise impact of that amendment. We often learn in these cases that it is these irresponsible individuals who have been arrested many times before for drunk driving and are out again in the community posing danger to our community.

However, here is where I must interject as well. In recent announcements by the government, $4.6 million has been cut from a pilot program administered or put in place by the Royal Canadian Mounted Police to determine if someone is impaired from drug use while driving. While the acronym MADD might stand for Mothers Against Drunk Driving, they might as well be MAID, mothers against impaired driving. It matters not the source of the stupefier or the ingested product, whether it is alcohol or drugs. What matters is the danger to our innocent public.

It is insincere to cut this program on the one hand and on the other hand suggest that this law is in step with what the government feels. Through Bill C-23, the government has added prohibitions that were long thought of, but on the other hand it has stopped a program that might easily identify people who are impaired from other sources. It completely misses the mark. It is completely inconsistent. It makes me think that the Minister of Justice has not thought through the implications of his whole dossier in justice.

Of course, justice should not just be about more severe sentences and longer jail terms. Justice is about making our country safer. I strongly believe that this is not done by locking up criminals and throwing away the key. It is done through prevention, to protect potential victims from living through the recurrence of dramatic events. When it is not possible to prevent crimes, I believe justice is done through proper treatment to ensure criminals understand what they have done. This should, we all hope, be the first step in rehabilitating them and preventing further crimes. Again, our concern is about the victims: prevention of crime.

Bill C-23 is proposing to allow a sentencing delay in order to enable the offender to receive treatment. Bravo. This is finally the government suggesting that it believes in principles of sentencing other than deterrence and denunciation. It makes me think again that this bill, which we support, really is not a bill of the government. This was not the brainchild of the government. This is a fix-up bill that was well under way prior to the change in government.

So I must applaud the other side for seeing the sense in these parts of the amendments. I am very pleased that the Minister of Justice is bringing such a liberal approach to his department in this respect. I would almost be tempted to congratulate him on realizing the important role of treatment and rehabilitation, but of course we all know, both at the committee and in the public, that there are many other bills that have been before the House, and are to be before the committee, which strip away at the sincerity of the government's posturing toward treatment and rehabilitation. So I came close to complimenting the minister, but I cannot.

I must say it is refreshing to see the Conservative minority government respect some of these principles. We would like to see more action on them as it relates to the bill.

I am very interested in having the House discussing the omnibus bill one week after the Conservative government abolished the Law Commission of Canada. As most members are probably aware, the main objective of the Law Commission of Canada was to advise Parliament on how to improve and modernize its laws. Is that not ironic? We are here discussing Bill C-23, which is essentially a modernization, a keeping up to date of the Criminal Code, one of our oldest statutes, and as most members are probably aware, the Law Commission of Canada is to exist no more.

The Law Commission of Canada provided exceptional advice on such topics. This is why we are at a loss to explain that on the one hand we see parts of this omnibus bill that obviously recognize the evolution--somebody watching the Criminal Code as it evolved and coming up with these proposals--and on the other hand the government is saying it is not really interested in organically studying the evolution of law and it will cut the Law Commission just like that without any real reason.

I would say, if I could make a statement here, that in the space of a few days, the government in fact has shown its support for the Law Commission of Canada by speaking in favour of the bill. It is cutting funds to the Law Commission of Canada, and on the same day, as we know, there was a surplus announced of over $13 billion.

Generally speaking, Bill C-23 is all about details, but as we all know, some amendments have been made to the Criminal Code, and sometimes they look pretty small and unimportant. They often, however, have long term implications. Any of us following the saga of Bill C-9 on conditional sentencing will know that in what was more than the stroke of a pen, in what was a 60 page decision of the Supreme Court of Canada in R. v. Proulx, what seemed like a very ordered system to deal with the application of conditional sentences turned into something completely different.

I believe, however, that we must study each of these amendments further at committee and learn more about the implications of some of the changes.

The purpose of Bill C-23 is to clean up, modernize and update the Criminal Code. We still have a responsibility, though, to study it thoroughly and understand the implications of the proposed changes.

The proposed amendments are quite varied and touch on several areas of the Criminal Code. It would be a very long, complicated process, therefore, to discuss them in detail in the House. For this reason, it is very appropriate to send BillC-23 to committee to ensure that each of these changes is well understood.

I am looking forward to studying this bill in the justice committee and the workings therein. With almost 50 clauses, Bill C-23 will definitely need some serious consideration to ensure we do actually clean up and modernize the Criminal Code, and not create more problems.

One last thing that concerns me is the workload that is being sent to the justice committee, not because the members of the committee from all parties are afraid of work, we are sitting three times a week now, but because of the sheer volume of bills presented to the committee. It seems like the government is more interested in putting these bills in the front store of its populist democracy and has no real interest in making sure that these bills are passed by this Parliament in a quick and just way.

I caution members of this House, if we are serious about keeping communities safer, if we are serious about protecting victims, then let us back up our words, as much as we agree on certain bills, and get these bills through this House.

That is why I emphatically endorse Bill C-23. Members will find that on this side of the House, in the House and in committee, we will put forth our very best efforts to see to it that it is passed with speed because this party and this side believe in safer communities and in the safety of victims.

I hearken back to my comments about my three daughters, aged 7, 8 and 10. If I thought we were not of ultimate dispatch in passing the amendments to this bill that call for further and subsequent prohibitions from driving for repeat drunk drivers, I would hold all of the members here accountable for not having done enough. Let us get to work on this bill.

[Vic Toews, Conservative, Provencher, MB]

Mr. Speaker, I must thank the member for Hochelaga for his diligent work on the justice committee. It is certainly a pleasure to have him on the justice committee to ensure that a different perspective is brought to the administration of justice. He and I may not agree in every respect but I respect his integrity.

In respect of the issues regarding the priorities, we have attempted to list bills in the priority that we would like to see them passed.

I know that some of the bills are more difficult. Bill C-9 has raised a number of issues. I have made comments in front of committee on that issue. We know that the bill regarding judges' pay is before the committee. I know there are many bills and much work to be done by the justice committee. We have issues, such as the review of the DNA legislation, a task that should have been done a couple of years ago but was not.

While I may have my own priorities and this government may have its own priorities that are reflected in the way that we have introduced legislation, I have full confidence in the member and the other members of the justice committee to understand the priorities of Canadians and to respond accordingly. I would rely on his wise judgment in that respect.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Speaker, in a few minutes I will have the opportunity to deliver my speech informing the House that the Bloc Québécois is favourably disposed towards this bill. I am, however, going to take advantage of the minister’s speech to try and get a few clarifications. We know that the minister is an extremely enterprising man, who in a way practises judicial activism. At present, six bills are under consideration, and there is a rumour, which I would be inclined to believe has some foundation, to the effect that six other bills will be tabled.

I would like the minister to tell us, in order, his government’s priorities. Does he hope to begin with the passing of Bill C-9? Is it Bill C-10, followed by the bill respecting age of consent? Is it the one dealing with DNA data banks?

Soon there will be more bills than the minister has teeth. It is not easy to figure out what the government’s priorities are. Each bill will be discussed in committee and in the House. Some are good, others less so, but overall, I would say that the output is fairly discouraging.

Can the minister, for each of the bills and in numerical order, tell us his government’s priorities? I am sure that he does this in consultation with the leader.

[Isabel Schurman, Sessional Lecturer, McGill University, As an Individual]

Good afternoon, ladies and gentlemen.

Thank you for giving me this opportunity to speak to you today.

I will follow the lead of my colleagues and tell you a little about why I think I'm here.

I am a criminal law practitioner and professor of sentencing in Montreal. I studied law at McGill from 1979 until I received a first degree in 1982 and a second in 1983. I was admitted to the Quebec Bar Association in 1984. I have either taught courses or lectured at the Université de Montréal, Concordia, McGill University, the bar admission course in the province of Quebec, the Federation of Law Society's national criminal justice program, and training for advocates on the international stage. One of my involvements in the past was with our friends from the Canadian Bar Association, where I was at one point in time chair of the national criminal justice section, and it was a pleasure to do so.

You will hear from people who have a lot more detail, a lot more to say than I do. What I would like very much to do is leave you with a few of the questions that have been in my mind constantly since I heard of and read the contents of Bill C-9.

Bill C-9 preoccupies me greatly because sentencing preoccupies me greatly. Sentencing preoccupies me because it's the nuts and bolts of the criminal justice system. With sentencing we decide who is wrong and how wrong they are. Sentencing is what goes on day in and day out in every courthouse in this country, because, depending on the jurisdiction, 75% to 90% of cases end in guilty pleas. Sentencing, ladies and gentlemen, is essential--one of the essential components of our criminal justice system. Sentencing will tell us an awful lot about who we are as a Canadian society.

If serious violent crime is the issue, then I would respectfully submit to the committee that this bill will not address it. This bill will complicate and confuse criminal justice in this country. It will result in inconsistencies from person to person and from jurisdiction to jurisdiction.

We've spent so much time and energy in Canada looking into sentencing--the Law Reform Commission, a royal commission on sentencing, the 1987 Canadian Sentencing Commission, the 1988 report of the House of Commons entitled Taking Responsibility. We've spent money and time and energy trying to come up with solutions to keep Canadians happy in a safe society with fair sentencing policies. These various commissions led to reforms in 1994, among others, Bill C-41, which talked to us about the purposes and principles of sentencing.

Denunciation, deterrence, sure, with rehabilitation and proportionality. Proportionality is very simple: the sentence has to be proportionate to the gravity of the offence and degree of responsibility of the offender. We cannot and will not sentence in the abstract.

Since 1994 we've legislated aggravating factors. We've said that if the crime is motivated by hate, you're going to get a higher sentence. If it's an abuse of a spouse or child, you're going to get a higher sentence. If it's abuse of authority, breach of trust, or related to the benefit of a criminal organization, you're going to get a higher sentence. It's all in the Criminal Code. We've legislated those little by little over the years because we want to make sure that serious violent crime doesn't go unpunished. In 2002 we legislated that an aggravating factor in breaking and entering is to enter a house when you know or believe that there are people inside, to deal with home invasions.

The law is changing to define which are the factors that will make an offence more serious. How will we evaluate the degree of responsibility of the offender? And the law has changed to look at effective alternatives to incarceration.

These reforms grew out of concern that Canada was incarcerating at an extremely high rate compared with other western Commonwealth countries. Canada's rate was some 153 per 100,000--second only to the U.S., which was far ahead of us at 600 or 700--and this despite the fact that commission after commission in this country had decided that incarceration was harsh and ineffective in many cases.

Justice Vancise of the Saskatchewan Court of Appeal made the point in a case called MacDonald that

Imprisonment has failed to satisfy a basic function of the Canadian judicial system, which was described in the Report of the Canadian Committee on Corrections, Toward Unity: "to protect society from crime in a manner commanding public support while avoiding needless injury to the offender”.

One of the most prominent jurists in this country made that statement.

Many of these studies also confirm that the length of the sentence was not the deterrent for crime--that the certainty of apprehension and conviction was the biggest deterrent we could hope for in criminal justice, not the length of the sentence.

Our priorities, then, as they are now for all of us, are to keep Canada safe and to choose or develop punishment options that would see public funds--public funds--our money--used wisely and carefully for key sentencing goals, including deterrence and rehabilitation.

No one is pro-crime. No one is untouched by the trauma on an elderly couple of breaking and entering; no one is indifferent to devastation caused by drugs in our society; no one accepts sexual offences against children or adults, against boys or against girls; no one believes auto theft should go unpunished; but as Julian Roberts, a criminologist referred to earlier today here, wrote recently, “The seriousness of the offence cannot be decided before the crime is committed.”

This is the single biggest problem with Bill C-9: it creates arbitrarily a blanket category of offences for which the conditional sentence of imprisonment would not be available without consideration of the specifics of the gravity of the offence or the specifics of the responsibility of the offender.

To target all offences proceeded upon by indictment, for example, meaning the maximum penalty is ten years or more, may not have been intended as arbitrary, but that is the result. The giving of contradictory evidence under oath, no matter how minor the proceeding, would not allow a conditional sentence of imprisonment. Unauthorized possession of a firearm, no matter how grave the circumstances--in downtown Toronto, for example--would be eligible under this new law.

Many offences have a maximum of ten years, but they include a vast range of fact situations that are certainly not equal in gravity. The man who touches the assistant's breast at the office party is guilty of sexual assault--as is the man who proceeds to what we used to call a rape of the 18-year-old secretary in the parking lot.

Not all cases of impaired or dangerous driving causing bodily harm are equal. The elderly man who backs up on the shoulder of the road and kills the motorcyclist is not in the same category, perhaps, as the wanton and the reckless disregard shown by a raving drunk who takes the wheel and seriously injures his partner for life.

Not all frauds represent the same degree of premeditation or the same extent of tragic loss. A $1,000 loss to a bank is serious; a $100,000 loss of life savings is serious too.

Some of the offences targeted by BIll C-9 can be proceeded upon only by indictment. Others may be taken as summary or indictable. The crown will make those decisions. What kind of burden are we putting on our crown prosecutors? They are salaried employees of the state, often overwhelmed and overworked, and not individuals named, as are our judges, with guarantees of independence and impartialit. Should it be up to the prosecutor to decide whether the accused has a chance at a rehabilitation program in the context of a conditional sentence of imprisonment? What pressure are we allowing to be put on these officers of the court to eliminate the conditional sentence of imprisonment, when the police or the public clamour for them to charge the more serious offence?

I'm sorry; I guess I'm speaking too fast?

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

Mr. Speaker, Bill C-23 is a good clean-up bill because it takes care of a lot of loose ends. The Department of Justice should be complimented on its good work.

However, I cannot say the same about the justice minister's implications in this bill. The bill was the fruit of the good work of the Law Commission, which has been eradicated. One of the first steps of the Minister of Justice, through the government purse keepers, the Minister of Finance and the President of the Treasury Board, was to cut the Law Commission.

Would the minister agree that the government was hasty in completely gutting the Law Commission?

The second point I would like to make is that the new Official Languages Commissioner, Graham Fraser, before the official languages committee said that he would be in favour of keeping the court challenges program.

The minister will know, at least I hope he knows, that the battle and struggle for language rights in this country has been in part as a result of successful court challenges applications and the testing of municipal and provincial laws and even, in some cases, federal laws to ensure that francophones across the country have the rights that have been improved in Bill C-23 but were in fact instituted by court challenges. Will the minister reconsider the efficacy of the court challenges program?

Finally and briefly, the imposition of a fine up to $10,000 on summary conviction offences from $2,000 is certainly to be lauded. This is a modernization of the reality of the effect of crime and the willingness to pay and the capacity to pay which must be judged by a judge. The judge's judicial discretion in deciding up to $10,000 in the capacity to pay area is something that acts totally against what the government has done to the judiciary. It was held up, I learned today, and it completely delayed bringing back the discussion in the House of the pay packages for our judges, ripping them of their discretion when it comes to Bill C-9 and Bill C-10, and yet in this case lauding the fact that we are increasing the discretion to $10,000 on summary conviction offences when in fact every other step of the government and the Minister of Justice has been an attack on the judiciary and its wise use of discretion.

Those are three little questions on which I will await the minister's response with apt attention.

[John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness]

Thank you, Mr. Hanger.

Thank you, committee members, for allowing us to appear on Bill C-9.

I should tell you a bit about ourselves. I'm a recently retired 30-year veteran of the Toronto police service. I left there at the rank of detective sergeant, and in my last posting I was in charge of the major case management section and the retroactive DNA section at the homicide squad.

Before that, I spent six years on secondment or loan to the Ontario Office for Victims of Crime, which provided advice to a succession of attorneys general about public safety and support for crime victim issues.

I've volunteered for the CCAA for the last several years and upon my retirement took on the full-time position of director of public safety.

The Canadian Centre for Abuse Awareness has been in existence since 1993. It's an organization that survives solely through charitable donations; we accept no government funding.

The organization has raised awareness about the true cost of neglect through its support of the victims of child abuse.

It's based in Newmarket, Ontario, north of the city of Toronto, and it's powered by a committed group of staff and volunteers who provide support to 70 partner agencies—whether it's fulfilling a child's dream wish, assisting crime victims and adult survivors of abuse, developing abuse prevention programs and resources, or more recently advocating publicly for legislative change.

The CCAA is committed to ending child abuse.

We also have a report. It's called the Martin's Hope report. It's named in honour of Martin Kruze, who was the first survivor of the Maple Leaf Gardens child sex abuse scandal to courageously come forward and publicly disclose.

Convictions were registered in his case against the offender for numerous child sex abuse offences. Only four days after one of the accused, a man by the name of Gordon Stuckless, was sentenced to just two years less a day, Martin tragically took his own life. Although it was too late for Martin, Mr. Stuckless' sentence was increased to five years on appeal.

This proved to be a turning point for the CCAA. Afterwards, the centre conducted ten round tables around the province, and we think this is what's important about our organization. Following those ten round tables, where we spoke to 150 front-line criminal justice professionals, crime victims, and survivors, the CCAA completed the Martin's Hope report, which makes 60 recommendations for change--39 of them directed at the federal government.

We cover a wide variety of areas, including but not limited to the reform of sentencing, parole, and correction laws; the DNA databank; the age of protection; child pornography and the Internet; and children in the sex trade.

One of our recommendations, which is contained within several recommendations about sentencing, is actually about conditional sentencing.

When we spoke to the people around the province at the ten sites, despite the wide variety of voices heard, there was a significant commonality in what was said, with certain themes enunciated at pretty much every site.

When it came to complaints about the justice system, without a doubt the prevalence of conditional sentencing was at the top of the list of those complaints. We suspect that if the same kind of survey was done of those kinds of people in other provinces across the country, we would receive similar complaints.

As all of you here today know, conditional sentences of imprisonment—and that's what they're called—as a sentencing option came to be in 1996 as part of a renewal of sentencing law. The intention was to divert minor offenders from the prison system. In fact, the debate around the amendments at the time—and I remember them—included the fact that it was not intended to be used for serious or violent offences. Ten years of jurisprudence suggests otherwise.

Understand that the CCAA supports targeted and appropriate diversion of offenders from the prison system for less serious crimes. In addition, we support the use of effective restorative justice programs, as part of an overall strategy to reduce recidivism and, if we can, make offenders healthy and whole.

But we and many others believe the expanded use of conditional sentencing for a wide variety of serious offences and offenders has done more to bring the administration of the criminal justice system into disrepute than any other single measure.

Conditional sentencing has been routinely used by judges across this country to sentence literally thousands of serious offenders. Its use is widespread, and Regina v. Proulx at the Supreme Court of Canada has made it clear that there is no presumption forbidding the use of conditional sentencing. It's effectively carved in stone.

Despite the fact that probation orders exists in our sentencing regiment for up to three years, Parliament previously saw fit to add this new option—something that in theory would provide an option between actual incarceration in a correction facility and probation.

What hasn't been confronted in the debate about this, and what I suspect many of your witnesses on Bill C-9 will not confront, is that there is little that resembles prison or incarceration when an offender is provided a so-called conditional sentence of imprisonment or “house arrest”, as it is often referred to. Anyone who—and I know many of you have—has spent time in a courtroom knows that when an offender is about to be sentenced, and he bends over to talk to his defence lawyer, he is not pleading with counsel to implore the judge not to sentence him to “house arrest”. There isn't an offender, except for the most institutionalized of recidivists, who pleads for two years less a day in the nearest provincial jail, when staying at home is a possibility.

Let's be honest, there isn't much about staying at home, watching television, surfing the Internet and having the odd drink, along with the usual handful of caveats that allow travel in and out of the house as necessary, that remotely resembles prison. Quite frankly, it is a fraud that has been foisted on the Canadian public—this notion that these sentences are removals of liberty, worthy of being called imprisonment.

It should also be understood that the police aren't monitoring, and the probation service isn't visiting these offenders. Quite frankly, communities don't know what these offenders are doing, or if they are abiding by the conditions as set out in their orders. Justice this isn't, and enhanced public safety this isn't either.

We note that from the legislative summary provided on www.parl.gc.ca, there is little in the way of research on the effectiveness of conditional sentence orders. One notation does jump off the page, though. In a survey attributed to Professor Julian Roberts, he indicates that the successful completion rate of conditional sentences was 63% in 2000-2001, falling from 78% in 1997-98. The note makes the point that the failure rate was largely attributed to breaches of the increasing number of conditions placed upon offenders, rather than allegations of fresh offending.

That is no doubt the case, but one is left wondering if it has to do with the ever-increasing number of dangerous and serious offenders who have been placed on conditional sentences of late. In any event, the fact that the most recently published successful completion rate is at just 63% is quite extraordinary, when one considers that the police and probation are not proactively monitoring these offenders. The bottom line is that it appears that these orders may have a very significant failure rate, minus any kind of ongoing proactive monitoring. How bad would the rate be if they were being properly monitored? This is more then a little bit troubling.

Regarding the offences identified by Bill C-9, as I indicated, CCAA's Martin's Hope report supports the calls from many organizations to repeal the conditional sentencing provisions of the code. We were heartened when the mandatory minimum sentences were recently passed for a variety of child sex offences, with the net result of a repeal—that conditional sentences could no longer be given for those particularly serious crimes perpetrated against children. One of my past co-workers appeared on that bill.

With respect to the current list of offences, as proposed for exclusion by Bill C-9, with a maximum of ten years or more where the crown proceeds by indictment, we see this bar as being placed sufficiently high.

Although our organization has as its mandate the protection of children, we find it difficult to fathom the outcry over some of the offences included on the list. The property crime rate has more then doubled since the 1990s—that's the crime rate, notwithstanding the fact that many people just don't bother reporting offences, due to a loss of faith in the justice system. How much higher would the rate be if people actually reported all of these crimes?

For many people, the kinds of crimes represented—including break and enter, frauds, and for that matter, cattle rustling—all have a significant impact on lives. Many people suffer lifelong trauma after having their home broken into and ransacked and their keepsakes stolen. Fraud artists victimize the trusting and the vulnerable. Often the elderly are targeted, leaving them destitute and broken.

As for cattle theft, we understand it has been a topic of debate at this committee. It might not track so well here in the cozy confines of Ottawa, or in The Beaches, the tony neighbourhood where I live in Toronto, but for ranchers in British Columbia and Alberta who don't have insurance, it's serious business that impacts on their lives and their livelihood.

As an aside, when I travelled through the beautiful Chilcotin region of B.C. a few years ago, I saw a full-sized billboard that said, “We don't call the RCMP when folks steal cattle around these parts”. I'm not countenancing that behaviour, but the message is clear: they've given up and lost faith in the criminal justice system; they're taking care of business themselves. That's not a good thing, folks.

In any event, we think that the fact of the crown having to proceed by indictment for those offences hybrid in nature and the opportunities that currently exist for accelerated parole review, guaranteeing release after one-sixth of a sentence by paper review for certain of these offences, have not set the bar too low for those concerned about these proposed appeals. In fact, we have one area of concern with respect to the bill, and that is in regard to offences committed against children not being included. Specifically, these offences are assault, assault causing bodily harm, and sexual assault, when the crown proceeds summarily. When a child is the victim, these cases are serious matters, and we would encourage the committee to consider a simple amendment that would include those offences when a child is a victim.

A couple of questions have been raised. If the crown doesn't like a conditional sentence, why don't they just appeal it? Crown appeal divisions are overworked and understaffed, as are the appellate courts. We see this as an entirely inappropriate solution; the law has been identified as problematic; Parliament needs to intervene.

Would Bill C-9 interfere with restorative justice initiatives? Absolutely not. In the vast majority of cases, there are multiple opportunities to engage in restorative justice long before reaching the point at which a court sees fit to sentence an offender to a period of incarceration. In addition, for those offenders who do end up incarcerated, we would encourage you to focus on enhancing in-custody restorative justice initiatives, and in cases in which offenders have had some success as a result of restorative justice, to tie these successes to earning parole, rather than providing automatic release--i.e., accelerated parole review or statutory release. The end result would be that an offender would receive the dual message of denunciation and deterrence as a result of being incarcerated, coupled with effective restorative justice initiatives tied to earning parole.

Will the police or crown overcharge so as to avoid conditional sentences? Again, we find this hypothesis unrealistic. The crown has the ability to amend charges that the police lay and does so all the time. Crowns make decisions every day about how to proceed, and BillC-9 does not remove that discretion.

In conclusion, although the CCAA would have preferred more extensive amendment of the conditional sentencing provisions of the code, we support the proposed legislation and welcome the direction this government has taken. As indicated, our voice is that of front-line criminal justice professionals, crime victims, and survivors. Additionally, we believe that hard-working and law-abiding Canadians by and large support these kinds of targeted amendments. We do not see this legislation as being driven by ideological considerations, but rather by a concern for enhanced public safety and proportionality in the justice system that recognizes the impact on individual crime victims, communities, and societies at large.

The CCAA supports speedy passage of this legislation as written, and would encourage this committee to consider the additional amendments we have suggested with respect to inclusion of assault, ABH, and sex assault for the hybrid offences by summary when a child is victimized.

Thank you for the opportunity to participate in this most important democratic process.

[Adrian Brooks, Member at large, National Criminal Justice Section, Canadian Bar Association]

Thank you, Mr. Chair.

Conditional sentences at the present time are for those individuals a judge has decided do not need to be imprisoned for rehabilitation or for purposes of community safety. Bill C-9 will put some of these people in jail; therefore, without making the community safer, more people will be in jail, and when they get out of jail the risk to the community may well be higher. For this reason, the CBA does not support Bill C-9 yet will make a submission to you that recognizes the significance of serious violent crime.

First with regard to conditional sentence orders, these clearly have a proper place in sentencing. They have dealt with all manner of issues and all manner of sentences. The benefit to society of keeping an offender employed and with their family is too obvious to dispute. Yet at the same time, conditional sentence orders have been significant in the onerous terms that are put on individuals. Individuals may indeed find serving a shorter jail sentence, followed by parole, easier than a conditional sentence order.

Criticism of conditional sentence orders is often centred on the nature of the offence, but conditional sentence orders, it should be remembered, are based on many factors, not just the nature of the offence. They are based on the circumstances of the particular offence and the particular offender, so that any legislation must keep in mind the myriad factors that go into a just sentence. That is why the CBA supports “a more refined tool”, as that term is used on page 4 of the English edition of our brief, page 5 of the French edition.

Because conditional sentence orders provide that much-needed intermediate step between jail and probation, any bill should be slow to restrict the use of conditional sentence orders. Bill C-9 has chosen the Criminal Code's use of maximums as the line between conditional sentence orders being available or not. That line is flawed, for two reasons: one, it is too broad; two, it is not based on a coherent principle.

It is too broad because it will sweep up offences for which there is no reason not to have a conditional sentence order, at the very least as an option. Unauthorized use of a computer or mischief causing damage over $5,000 are examples of some situations in which a conditional sentence order might be best left to a judge. We say it is not coherent to use maximums also because they were never intended to create this kind of black-and-white dividing line.

The current sentencing regime allows a good deal of judicial discretion, and it is important to maintain as much judicial discretion as possible. That is so in order to recognize the very broad range of circumstances that can occur in any particular case, and that it is appropriate that the judges have that discretion. They have the expertise, they listen to both sides, and they make those hard decisions that at the end of the day must be made. If the discretion of judges is limited, what is it to be replaced with?

Bill C-9 gives a broad “one size fits all” substitute that is not a useful substitute; again it is not a refined tool. One example may suffice.

We know that conditional sentence orders are used at different rates in different provinces. Clearly, the judges have used their discretions in different provinces to make the decision as to what their community needs. Bill C-9 will end that, so that individual regional differences will be run over, for in excess of 100 offences.

Bill C-9 as it currently exists is inconsistent with the proportionality principle of sentencing. The proportionality principle creates respect for the law. Bill C-9 removes, for a broad range of offences, that proportionality of sentences for an individual and for an individual circumstance.

I ask you to consider how Bill C-9 will play itself out. Here is an example of an individual who would be sentenced for a counterfeit $20 bill and would not be eligible for a conditional sentence order under Bill C-9.

Judges may well say, in their reasons, that they would not otherwise be sending the person to jail. The judge would say there is no value in taking away the offender's job and the offender's time with family, yet would say that Parliament has left no choice. The judge may well say that an individual ought not to be in jail, wasting taxpayers' money, yet he or she has no discretion to do otherwise. That is why we say, in page 4 in the English version and page 5 in the French version, that this approach can foster disrespect for the law. We say that using proportionality and restraint is not being soft on crime; it is being smart about crime.

Serious, violent crime, nevertheless, is a significant issue. The problem is a limited one and easily identified, and that makes the broad sweep of Bill C-9 unnecessary. Our submission accepts that the problem of conditional sentence orders for violent offences can be dealt with by legislation, and we offer three alternative options. They are found on page 6 of the English version and page 7 of the French version.

In conclusion, it is our position that Bill C-9 will put people in jail who ought not to be there. It will not increase public safety; indeed, it may increase the risk of reoffending and thus make our communities less safe. A more focused piece of legislation can deal with the problems of serious offences; Bill C-9 is not that focused piece of legislation.

Thank you.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association is very pleased to have an opportunity to present its views to you today on Bill C-9. The CBA is a national voluntary organization comprising lawyers, law professors, law teachers, notaries, and law students from across the country. The submission you have before you today was prepared specifically by the criminal justice section.

Just a word about the section: it is unique amongst criminal justice organizations within Canada in that its members comprise both crown and defence attorneys, and the submission you have before you marks the consensus of those two groups coming together.

I have with me today Mr. Adrian Brooks, who is a member of the executive of the section. I will ask him to address the substantive areas of the bill.