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.

[Prof. Gary Mauser]

I apologize. I will go more slowly.

My remarks are directed to the question of whether or not incarcerating serious or violent offenders is effective in protecting the public.

My reading of the criminological research suggests that imprisoning serious offenders is indeed effective; that increasing the number of offenders who are incarerated acts to reduce violent crime rates. This effect is especially pronounced with homicide rates. This research supports the wisdom of imprisoning those who have been convicted of serious offences; that is, those punishable by prison terms of ten years or longer.

Some Canadians have a bias against anything American, but to reject American research studies simply because they are American runs the risk of ignoring potentially effective solutions to serious Canadian problems; thus I believe responsible Canadians should examine U.S. justice policies in order to emulate their successes and to avoid their failures. The U.S., being so much larger than we are, simply has a wider and deeper bank of information from which we can learn.

The facts indicate that violent crime rates have fallen faster in the U.S. than they have in Canada. I've had some charts distributed that illustrate this. Between 1992 and 2004, for example, the overall violent crime rate fell 38% in the U.S., but only 13% in Canada. This precipitous drop is even more evident in homicide rates. During the same time period, the homicide rate in the U.S. fell by 41%, while in Canada it only fell 26%.

Criminologists have been studying this drop, which was completely unexpected, with some attention over the past decade. The results of this attention are now becoming clearer. There are literally hundreds of studies. I will limit my discussion to the most important ones.

Especially illuminating is the research conducted by Marvel and Moody, who are among the most respected criminologists in the world. In their time series studies, they found strong results at the national level affirming that expanding prison populations is convincingly tied to reducing violent crime rates.

Marvel and Moody's 1997 research demonstrates that for every 10% increase in the prison population, homicide rates drop 13%. In their studies, of course, they controlled for a wide range of other variables, such as inflation, unemployment, demographic trends, socio-economic factors of a wide variety.

Marvel and Moody found similar but weaker relationships for assault and robbery. They speculate that this weaker statistical relationship is most likely due to the lower quality of arrest data for crimes other than homicide.

Marvel and Moody's results were quite robust, and their research findings have been replicated by other researchers. One study in particular, by Kovandzic and his colleagues in 2004, deserves mention. They not only confirmed Marvel and Moody's earlier findings but also examined the effect on violent crime rates when offenders get out of prison. They found that there was no evidence of a significant positive relationship between prison releases and homicide rates.

Many researchers have observed that prisons are expensive. That's true; however, who ultimately bears the cost of crime is a question of more importance than the cost itself. Yes, prisons cost taxpayers more than does probation or house arrest, but the costs of criminal violence are paid for by the victims—their lives blighted, the lives of husbands, wives, or children lost to criminal violence.

When serious offenders are allowed to escape serious jail time, they are free to commit more violent crimes. Individual Canadians bear these costs.

To take only one example, Jane Creba, who was killed in Toronto on Boxing Day last year, might still be alive had the previous government acted to keep serious offenders in jail longer. Other examples of questionable sentencing decisions are frequently reported in the media.

Research in both the U.S. and Canada suggest that those in social minorities are the victims of violent crime at higher rates than other citizens; thus it follows that increased prison terms will be especially effective in reducing victimization rates among minority members. In Canada, aboriginal victims disproportionately bear the costs of violent crime; thus aboriginal people will be among the primary beneficiaries of a program that incarcerates serious offenders.

Before I conclude, I would like to say a few words about the tendency of some people to refuse to believe statistical studies that do not conform to their previous beliefs. Such a position is buttressed by the cynical claim that statisticians can obtain any results they wish by simply massaging the data.

Such cynicism justifies laziness and ignorance. Certainly, liars and sophists use statistics. Liars misuse words, too, but that does not mean we should give up on language.

In conclusion, despite what you may hear from special interest groups who cherry-pick data, the criminological research is quite clear: longer prison terms for serious or violent offenders has been important in the dramatic fall in violent crime in the U.S. These results support the logic behind Bill C-9, that of incarcerating those who have been convicted of serious offences.

Thank you for your attention.

[The Chair, Conservative, Art Hanger]

I would like to call the meeting of the Standing Committee on Justice and Human Rights to order. The orders of the day are for the study of Bill C-9, an act to amend the Criminal Code for conditional sentence of imprisonment.

We have four presentations today: the first from Mr. Gary Mauser, a professor at Simon Fraser University of British Columbia; the second from the Canadian Bar Association; the third from the Canadian Centre for Abuse Awareness, Mr. John Muise; and fourth, from Ms. Isabel Schurman, a lecturer at McGill University.

I'm going to go in the order set out in the notice of meeting. We will start with Mr. Mauser. I would ask that the presenters keep their comments down to ten minutes.

Mr. Mauser has to leave a little early. We appreciate your attendance. I know you're under pressure to get moving; I know the members have some questions for you. So we will ask you to begin, Mr. Mauser.

An Act to Amend Certain Acts in Relation to DNA Identification

[Rob Moore, Conservative, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, the thoughtful speech of the hon. member for Fundy Royal is correct in saying that we on this side of the House are taking justice issues seriously. We have listened to Canadians.

We are busy in the Standing Committee on Justice and Human Rights, of which he and I are both members. By way of example, we are dealing with Bill C-9, which deals with conditional sentencing and ending the possibility of conditional sentences when a serious crime is involved, with Bill C-10, which deals with mandatory minimum penalties for gun crimes, and with Bill C-19 on street racing, which I and the hon. member spoke to yesterday. We are going to be dealing with other issues that deal with protecting Canadians.

I am proud to say that we are backing up our legislative action with resources. Our budget provided funding for 1,000 new RCMP officers. We are providing funding to train and hire new municipal police officers. They are the essential resources that must be in place to add teeth to our legislative agenda.

In light of the fact that the hon. member does support Bill C-18 and improvements to the DNA data bank and recognizes the importance of the DNA data bank, will he work within his party to move Bill C-18 along as quickly as possible? Recognizing that we are busy in the justice committee, will he take steps within his own party to see that Bill C-18 moves even straight through to the Senate considering that many of the issues dealt with in Bill C-18 have already been debated?

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Prober.

Are there any other questions from the members?

I would like to thank you very much for your appearance here and your presentation. This has added a substantial amount of information for us to examine, and I look forward to seeing what the results are overall. The debate we've had here this afternoon is going to contribute a great deal to Bill C-9.

Remember, you're still just a small part of the overall number of witnesses we have appearing. I want to thank you for staying as late as you have, and also the committee members. Thank you.

The meeting is adjourned.

[Prof. David Paciocco]

I don't take the view that deterrence should never be considered, because our courts have told us that for some offences it is a primary goal of sentencing and it is a reality of our criminal justice system.

The key message is you cannot expect to affect crime rates by making changes in the sentences for offences that are already carrying serious penalties. In other words, people don't commit offences because they think they might get a conditional sentence. I am just submitting to you that it would be unrealistic for you to think that if Bill C-9 passes, you're going to have a safer society, because you are not--not based on deterrence thinking.

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

Thank you.

I'll be fairly brief. I want to apologize for missing part of the hearing. Mr. Moore and I were in the House, disagreeing on things.

I want to thank you for what I've heard. I'll ask some fairly short questions.

At the risk of agreeing with Mr. Thompson, I have a hard time understanding that the church--the one I belong to anyway, the Catholic church, probably doesn't get out of the foxhole of morality too often into the secular world, unless it's perhaps for gay marriage issues. But I don't think I could say that this is the position of the Catholic church, could I? I think what you're saying--correct me if I'm wrong--is that the churches that are listed are saying that they're for the concepts of restorative justice, that they're for the concepts of forgiveness and rehabilitation. I'm sure that's where they are, but you can correct me if I'm wrong.

Does the Catholic church support Bill C-9? I don't know if they've made a position known on this. I'd like to know, because sometimes--

[Myron Thompson, Conservative, Wild Rose, AB]

I just wanted to know the size of your board that would sit down and make the decision on Bill C-9. I expect it's a handful of people, representatives of these--

[Myron Thompson, Conservative, Wild Rose, AB]

I didn't realize that connection between you and the minister, but I didn't get an answer. I was wondering, what group of people decide on the recommendations you've made on Bill C-9?

[Myron Thompson, Conservative, Wild Rose, AB]

But I want to stress this: the thing that sparks this debate out there in this huge country to do something with the justice system is when things happen such as in one week, the one week I'll never forget, the one week that the perpetrator kidnapped, you may remember, Melanie Carpenter. The prison guards and the caseworkers phoned me and said he was going to be paroled; this man should never be out; why are they doing it? There was a big argument, but they let him out, and within a short time, Melanie Carpenter was found dead.

The same week, a poacher of an elk went to jail. In the same week, fourteen farmers went to jail for selling their own crops across the border without a permit. In the same week, a five-year-old girl was brutally attacked, her throat was cut, she was raped and was found in a garbage barrel, and it wasn't too long until that person was put on a conditional sentence for one of the worst, most heinous crimes.

Does that not draw a picture to any of you, or to all of you, as to why the public out there has been signing millions of petitions over the last few years? Something has to be done. And if you agree with that statement, then I hope you will understand that this government is determined that we're going to make some significant differences to try to improve the justice system, and Bill C-9, we believe, does.

Unfortunately, discretion of the judges is causing more grief. If you want to hear a comment after a judged case, the comment practically anywhere is “What in the world was that judge thinking of?” Maybe his decision was right and maybe it was wrong, but the people are not genuinely satisfied with leaving it in the hands of a judge. That's the impression I get.

So there are my words, and anything you want to say in regard to what I ask, I'd like you to respond.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you, Mr. Chair, and thank you all for your presentations here and your time today.

I want to say to Ms. Prober, from Beyond Borders, that in 1993, when I first came here, one of my main personal objectives was to do everything I could to get rid of this child pornography and other things that are destroying and hurting the lives of our kids. It has been a constant battle.

I'll be honest with you. For thirteen years I have not been able to understand why grown-up men and women, including judges in the courts who make certain decisions, cannot arrive at something that would really help in that area. But we always seem to run into this idea of having to be careful because it probably won't pass the charter test. In other words, the rights of some people are more important than the protection and the safety of our children. That's the way it has always come across. I don't know how we're ever going to defeat that, but that has to be done sometime in the future, because that is now a multi-billion-dollar industry. And what a shame that it has grown to that extent over these years.

So I really appreciate your work, and you keep it up. I want to state that right off the bat.

I want to say to the Church Council, I'm not sure how you arrive at your decisions and your recommendations regarding Bill C-9. I looked at the list of founding churches, and I happen to belong to one of them. I don't believe that the church I belong to, which is very huge in membership, would agree with anything you said today. I have received a lot of petitions over the years, particularly from certain church groups, that are pronouncing the very things that I think Bill C-9 is promoting. That's the part I want to get to.

When the Beyond Borders lady said you cannot rely on criminal justice statistics alone, I agree with that, but one statistic that you can rely on is the fact that, I know now, after a 2,500,000-person petition tabled in 1994, led by Priscilla de Villiers and a victim's group, and in addition, all the petitions that have been occurring over the last ten years...we're into several millions of petitions demanding that something be done with this justice system. That's from the people who pay for it, and they deserve to be safe under it.

So I'd like to know how you arrive at a decision when I really have a tough time understanding from this list that you have that much support from the group.

James, you're stressing the importance of a voice of the victims. I couldn't agree with you more. The victims are not involved in there enough.

I appreciated David's proposal, but I'll be honest with you. All the people in my riding who signed these petitions, and all that, really wouldn't quite understand where you're coming from. I would suggest that you wouldn't make a presentation like this in my riding, which is heavy cattle country, if you get my point.

[Rosalind Prober, President, Beyond Borders Inc.]

Good afternoon.

My name is Rosalind Prober. I'm the president of Beyond Borders, which is a volunteer, non-profit organization dealing with global child sexual exploitation.

Beyond Borders is part of a multinational NGO, a non-governmental organization, called ECPAT, End Child Prostitution, Child Pornography and Trafficking of Children for Sexual Purposes. ECPAT is based in Bangkok, Thailand, and I'm on the board of directors.

To be transparent, a criminal lawyer with the same last name as mine has been ultra-vocal in the media, ranting against a fellow Manitoban, Vic Toews, and this legislation. That would be my husband. We disagree when it comes to “home sweet home” jail sentences. Incidentally, I'm not a lawyer, but I'm not apologizing for that.

I'm here today to speak on behalf of children who are sexually victimized by adults. Holding perpetrators accountable is certainly not easy for children. Many abused children do not live in Canada. Many are victims of Canadian child sex tourists. Many are totally incapable of withstanding punishing cross-examination on the intimate details of their sexual victimization in our “win at all costs” adversarial system. Many are found to be not credible.

As we all know, sex crimes can be life altering, and they have a heavy impact, especially on the most vulnerable in society, who are the easiest to abuse, in many cases. The disconnect between victimization statistics and criminal justice statistics shows all too clearly that most sex crimes are not reported.

On behalf of these children and children who do manage to successfully prosecute abusers, Beyond Borders supports Bill C-9. We support the removal of conditional sentencing for sexual assaults or other sexual offences against anyone under eighteen when the state has prosecuted by indictment for a crime that carries a maximum sentence of ten years or more.

Tough laws on paper are nothing more than lip service when they are constantly ignored. This is an egregious violation of children's rights to justice.

Should Canadians be reluctant or hesitant to use the justice system to denounce sex crimes against children? In Beyond Borders' view, the answer is a clear no. Society has a right and a duty to children, as documented in all the international conventions and protocols we sign, to condemn conduct that it finds intolerable. Surely sexual activity with children is such conduct. Surely the message from the justice system to the public should be that these crimes are abhorrent and very serious.

Has the judicial branch failed in its duty to protect the most vulnerable in society by giving slap-on-the-wrist sentences for serious sex crimes against children? Yes, it has. Conditional sentencing has been abused and overused. The fundamental principle that a sentence must be proportionate to the gravity of the offence has gone out the window.

Aside from leaving the age of consent at fourteen, Beyond Borders supported Bill C-2, which was brought in by the previous government. That bill imposed on the judiciary mandatory minimums for those convicted of sex crimes specifically against children. Bill C-9 will ensure that those who sexually assault children, commit incest, and so on, will not escape incarceration. It should be pointed out, however, that unlike Bill C-2, which imposed specific minimum sentences, this bill still leaves the door open to judges to impose suspended sentences and probation for sex crimes against children.

Is jail in the community, or house arrest, equivalent to incarceration in prison? Clearly not. Crime victims have the right, especially children, to be treated respectfully in the court and told the truth about sentencing perpetrators. A person's home should never be equated to jail; that is preposterous. Sex offenders against children who get house arrest are going home to their own beds. Because there are so many sex offenders against children from upper-income brackets, many return to luxury. It is not credible to refer to homes as jails. It is disrespectful of everyone to pretend that going home after being sentenced is the equivalent of real jail. House arrest is an undeserved soft touch; if it weren't, it would not be so sought after by criminals.

In 2001, a young 12-year-old first nations child in Saskatchewan had the enormous misfortune of being spotted by three adult men. When any 12-year-old ends up hysterical, dead drunk, and has to be hospitalized due to clear evidence that she was sexually assaulted, one would think that a sentence of house arrest for a perpetrator of this crime would be impossible. However, not only did Dean Edmondson get house arrest, he also became the victim in this case as the 12-year-old was portrayed as not just a consenting and willing participant but as a sexual aggressor as well. As precedents go, this is one Canadians should not look to with pride.

Sex crimes against children are often premeditated, with some involving elaborate planning and manipulation of not just the kids but their parents as well. Sex crimes can leave long-term scars and, as we all well know, can lead to destructive lifestyle choices and suicide.

There are strong societal sanctions against sex with children. Millions of tax dollars are sadly going into teaching kids how to protect themselves. So when an adult chooses to cross that barrier into behaviour that harms society's most vulnerable and cherished members, he or she should have no possibility of what is in reality just an inconvenient curfew. House arrest should not be an option in sentencing child sexual exploiters.

Bill C-9 closes that option, is in the best interest of children, and should be supported by this committee.

Thank you.

[James Loewen, Coordinate, Mennonite Central Committee Canada]

Thank you very much.

My names is James Loewen, and I come from the promised land of Langley, British Columbia. I'm glad to come all this way. It's lovely here.

I'm here on behalf of the Mennonite Central Committee Canada. It is the service, development, and relief agency of the Mennonite and Brethren Churches in Canada. There is a family of MCC organizations in Canada with provincial offices in five provinces. Collectively, we have a wide range of programs that include walking with aboriginal people, helping refugees resettle, supporting people with mental illness, working with victims and offenders involved in the criminal justice system, and working directly with people in poverty. This diversity has helped shape the brief on sentencing issues that we share with you today. I want to acknowledge immediately that the brief associated with this presentation and this presentation do not directly address the insights and concerns that reflect aboriginal wisdom and experience. I do know that this wisdom and experience is important and ought to have a place here.

One part of MCC Canada's work involves the development and support of restorative justice programs across Canada. We take an interest in not only the practical grassroots development but also on creating a sustainable environment of growth for restorative justice programs. Currently, MCC Canada has a network of over 35 restorative justice programs, ranging from well-established internationally regarded programs to cutting-edge pilots seeking to increase their capacity.

It is with this foundation that MCC Canada and its network come before you with this brief. We appreciate the opportunity to be heard and to have a voice in this discussion of Bill C-9. In particular, we will speak to the concern that serious crimes be dealt with seriously, the concern that victims have more input into the justice process, and the concern around the effects of the increased use of incarceration.

In particular, we are recommending that the government expand the use of conditional sentencing. In this it will be necessary to expand the role of the victim throughout the justice process and expand the resources available to victims and to the programs that provide necessary justice processes, such as restorative justice programs. As this bill responds to issues raised in the news media, I thought it would be helpful to reflect on these issues in the context of a story. The following story can be found on the CBC website.

In August 2001, Michael Marasco was attacked in a case of mistaken identity. His attacker, Erron Hogg, beat Marasco into unconsciousness with a metal rod. After undergoing extensive brain surgery, 25-year-old Marasco now suffers speech and memory impairments and has had to give up his dream of becoming a lawyer. Queen's Bench Justice John Scurfield gave Hogg, who is also 25, a conditional sentence of two years less a day and ordered him to write an apology to Marasco. He must complete 400 hours of community service and abide by a strict curfew. His sentence would be followed by three years of supervised probation. The victim's sister, Maria Marasco, says her family was shocked by the sentence. She read her mother's thoughts: "This experience has left my family with a shattered belief in the Canadian justice system. It is solely based on money and politics. The justice system has wasted our time, not to mention taxpayers' money, over the past two and a half years that it took to come, finally, to a decision to let this criminal go free."

As you may know, this sentence was appealed and overruled, with Hogg being sentenced to a three-year term of incarceration.

On the surface, this story seems to support the approach of Bill C-9, as there were no further cries of injustice from the Marascos or the Ministry of Justice in Manitoba regarding the sentencing. However, if we look deeper into stories like this, we begin to see common themes. It seems clear that one key problem with this sentence and other conditional sentences involving more serious crimes is that they convey a message that these crimes are not taken seriously. Another issue is that victim input and consideration in the sentencing process is inadequate, to say the least. There is also concern that the conditional sentences are not a useful deterrent. The obvious assumption here is that crime plus time equals justice. Anything less is soft on crime and lenient.

Bill C-9 is an attempt to respond to stories like the Marascos'. MCC Canada fully affirms the view that serious crimes need to be dealt with seriously and that victims and communities ought to feel safe.

We agree that there have been conditional sentences that are disturbing; however, they are disturbing primarily because victims were disempowered and further harmed by the way that conditional sentences were handed down. The primary concern here is not with conditional sentencing per se, but with the failure to respond meaningfully to victims' concerns and issues. This failure is endemic to the system and is a natural outcome of an adversarial system of laws, one which has little room for the victim or their painful experience and complex needs. This reality is recognized in many reports, one even pointing out that justice professionals recognize and recommend more involvement of victims in decisions that affect them.

If we are to take serious crime seriously, then we need to take the needs of its victims, all of them, seriously. As studies have shown, these needs are complex and variable and often have little to do with incarceration for the sake of incarceration.

With regard to victims' needs, the National Consultation with Victims of Crime has illuminating insights, some of which are relevant to Bill C-9. One is the need for victims' rights to be elevated in importance to at least parity with offenders' rights. Another is input into decisions that affect them, such as plea bargains, charges, sentencing, and parole. A key need is respect, something that is occasionally experienced as a result of individual efforts of staff but is not present at a systemic level. A significant and primary need is for safety and reduction of fear associated with the offender and potential reprisals.

Bill C-9 only superficially responds to two of these needs, one for respect and the other for safety. This bill appears to send a message of respect, of hearing and taking seriously the needs of those victims who have experienced conditional sentencing as a travesty of justice. However, this bill does not address the needs of victims who support the conditional sentence given to their offender, those who believe the reports of the ineffectiveness of incarceration, and those who understand that the true travesty of justice is a failure to attend to the needs of the victim.

Bill C-9 does seem to offer temporary safety to the victims by removing the offender from the community. Sadly, as has already been mentioned, this is not the case. Bill C-9's efforts at change end up providing for neither the increase of respect for victims within the system nor for their safety in the medium or long term. This bill only responds to the surface needs of a few and does not take the stories of anger and betrayal as an opportunity to look deeper and address root concerns. Ultimately, then, by failing to respond to the known substantive needs of victims, we fail to protect and respect those who cry for change.

This bill will likely diminish our already limited ability to provide meaningful justice options for Canadians. The significant increase in resources that provincial jails will require will, of necessity, reduce opportunities for justice.

The CCJA brief clearly indicates that any restriction of conditional sentencing will, of necessity, restrict the restorative opportunities available to offenders and victims. An offender who stays in the community has an opportunity to maintain an income, a portion of which can be used for restitution towards the victim. As there are few unlimited resources for victims from government, it is doubly damaging when extra resources are used to incarcerate an offender.

It is worth noting that restorative justice has been mentioned quite a few times in relation to conditional sentencing. Let me assure you that conditional sentencing is not necessarily restorative justice; it is not consistent with restorative justice to order someone to apologize or to serve time. Offenders best understand and value the consequences of their crime when they have worked through the impact of their behaviour in mutual processes with the victim and the community impacted. Conditional sentencing merely removes some of the barriers that incarceration puts up.

One of the claimed justifications of incarceration is that it provides specific safety for communities and victims. There are, however, significantly less expensive and highly effective alternatives to incarceration even in cases of high risk, an example of which are circles of support and accountability. Circles of support and accountability have been so successful at reducing recidivism of high-risk offenders that they have proliferated across Canada and have begun to appear in other nations, including the United Kingdom, with increased interest from the U.S. I can refer you there to a report of a circle of support and accountability in Toronto.

[Prof. David Paciocco, Professor, Ottawa University, As an Individual]

Thank you, Mr. Chair. It's a privilege to have the opportunity to address this committee.

I am in a bit of an awkward position because I have sympathy for the ultimate goal of the government in Bill C-9. There's no question that the imposition of conditional sentences for extremely serious crime has a dispiriting effect on public confidence in the administration of justice. On the other hand, I'm here to urge that Bill C-9 not be passed in its current form, and I say that for three reasons.

First, this bill is too blunt. It is going to prohibit not only inappropriate uses of the conditional sentence but also the application of conditional sentences in cases where it is not only appropriate but the preferred response for the criminal justice system. Secondly, it will add appreciably to the financial costs of the administration of justice, and it will do it without reducing the amount of crime that occurs in Canadian society. Thirdly, and I say this based on my experience both as a defence lawyer and as a prosecutor for more than seven years, part-time and full-time here in Ottawa, strategies will be adopted by judges and lawyers that will avoid the rigidity of Bill C-9, and I'll give you some illustrations later.

If this government chooses to act on its perception or conviction that conditional sentences are being applied inappropriately, I don't want to come empty-handed. I'm offering two alternative methods of attempting to deal with this difficulty. The first is to create an additional prerequisite for conditional sentencing that would make it appropriate solely in those cases where priorities should be given to rehabilitation or restorative justice. Secondly, I would encourage the government to provide a presumptive provision. It could identify offences that are most troubling, such as sexual assault or causing serious bodily harm, and in those circumstances it can be presumed that priority in sentencing should be given to denunciation and deterrence. I'll speak more about these at the end of my presentation.

In theory, conditional sentencing is treated as a jail sentence. Its virtue is that it does reduce reliance on imprisonment and it does, according to the theory, decrease the risk of reoffending by some offenders. I'm urging this committee to accept the validity of both of those propositions in appropriate cases. Imprisonment is far more expensive than the administration of a conditional sentence, and as Ms. Berzins has explained, locking offenders up together with those who are criminally disposed in a criminal subculture tends to make many offenders worse, not better. To the extent that we can assist in rehabilitating Canadian citizens, we know we can do it far more effectively when they're not incarcerated.

Having conditional sentences in appropriate cases makes both common sense and financial sense. It makes sense where appropriate principles are respected. I would put forward three principles where conditional sentencing is an appropriate response. The first is where leaving the offender in the community will not pose an appreciable risk to the community. The second is where the offence is not so serious that permitting the offender to remain in the community provides an unjust response to the offence. The third is where priorities should be given to rehabilitation or restorative justice.

The current law is appropriate with respect to ensuring that dangerous offenders are not released into the community. As the committee I'm certain is aware, judges are not empowered to give a conditional sentence if in their judgment the offender poses a risk to the community if allowed to serve the sentence in the community. It would be inappropriate, in my respectful submission, for the government to assume that judges cannot make that determination at the same time we're putting forward a bill to allow judges to use their discretion to declare offenders dangerous on the basis of evidence and to lock them up indefinitely. It's quite clear that mistakes can be made in the exercise of discretion, but the alternative to removing discretion entirely and having fixed sentences or removing sentencing options is to result in erring on the side of incarceration, which, in my respectful submission, is not an appropriate response.

If there is a problem with conditional sentencing, it relates to the second two principles I have identified. The reality, in my opinion, is that we tend to overestimate the denunciatory and deterrent effect of a conditional sentence. This is because of what I would consider to be a questionable assumption that is made in the case law dealing with conditional sentencing. That assumption is that a conditional sentence is more like a jail term or a period of incarceration than it is like a period of probation.

In my respectful submission, this inflates the impact of a conditional sentence. Individuals subject to conditional sentences certainly have the stress and impact of being under a court order, but that stress is certainly far less than actual incarceration, and the deterrent impact has to be, to the extent that deterrents may exist, less if an offender is permitted to serve the sentence in the community.

I think if there is a difficulty with the conditional sentencing, it's in the tendency to overestimate the deterrent or denunciatory impact of that particular provision, and that's why I'm putting forward the principles that I am.

There's a related concern, and that is that sentencing does so many different things. We sentence people to try to accomplish protection of the community by deterring offenders. We sentence people trying to achieve justice. We sentence people in order to try to restore them or reintegrate them into the community. Those objectives are often at opposition to one another in a particular case, so the priorities a judge gives in a particular sentence are going to have a huge impact on the way that judge chooses to impose conditional sentences.

What I'm going to ultimately suggest is that if there is a problem, it is in the tendency to overestimate the deterrent and denunciatory effect, and the proposals I put forward address those specific problems, rather than the blunt tool in Bill C-9. Bill C-9 is blunt because it would remove conditional sentencing as an option entirely for offences with a maximum sentence of ten years or more.

The fact of the matter is that our Criminal Code is not a coherent instrument. We've never had a scientific study of the seriousness of offences. It is historical accident as to whether a particular provision in the code carries a maximum sentence of ten years or more. It not only includes the offences that we as a society are most afraid of; it also includes things like theft of cattle, theft of a credit card, unauthorized use of a computer, possession of house-breaking instruments, uttering forged documents, uttering counterfeit money. None of those things are acts that flatter the offender, but I doubt that Canadians would identify them as being among the more serious or more feared offences in our community.

The second problem is more profound, and it is that the seriousness of offences depends far more on the circumstance of the offence than on the specific offence in question. Sexual assault, for example, can include everything from an unwanted kiss to the most reprehensible violation. A break and enter can be a young person committing a home invasion under very dangerous circumstances or it can be an estranged spouse violating a court order giving possession of the home to another party by going in to try to reclaim what they think are their goods.

It is inappropriate and wrong, in my respectful submission, to have a lumped-in category of offences and assume that should be the break-off for conditional sentencing.

Conditional sentencing is cheaper than incarceration, and it would not be, in my respectful submission, appropriate for the government to act on the assumption that if we remove conditional sentencing it will deter offenders and that will reduce the costs of incarceration.

I'm not going to get into the studies that have been referred to by the previous speakers, but I ask this committee to approach this as a matter of common sense. How realistic is it to think that people who choose to drink and drive or break into homes or commit sexual assaults do it because they know they have a chance at perhaps getting a conditional sentence if and when they're apprehended? All of those offences carry very heavy penalties. Do you really think that's going to be the difference in their decision as to whether to engage in criminal conduct?

Secondly, what we do know about deterrents is that if an individual doesn't know what the sentence is, they're not going to have any way to measure the cost-benefit analysis. This is a complicated piece of legislation. Are offenders really going to understand what the impact of this particular bill is, and will they take that into account before they engage in their conduct?

If this committee decides to recommend or the government decides to act on this legislation, it must be in the firm appreciation that it will increase the costs of the administration of justice, not decrease them.

Finally, history teaches us that when the law becomes rigid, lawyers find their way around it, and so, too, do judges. If this bill is passed you are going to see probationary sentences given in cases that now attract conditional sentences. In other words, inappropriately lenient sentences will be imposed in an effort to get around these restrictions. In addition, you will see tokenistic periods of incarceration followed by probation where a conditional sentence would have been used in the past. So in some respects it's going to backfire.

It's going to give prosecutors tremendous power, because, as you know, this bill applies only where the prosecution elects to proceed indictably, and they can therefore remove a sentencing option from a judge. Sentencing decisions should be made by judges, where they are reviewable, rather than in the unreviewable discretion of prosecutors.

The solution I'm putting forward focuses on the very problem that I think I have identified with conditional sentences. Some judges think they are far more deterrent or denunciatory than I think they are. Our Supreme Court of Canada authority reinforces this characteristic of conditional sentences consistently.

I would ask that the committee consider recommending, and the government consider acting, on different principles. Add an additional prerequisite if you feel the need to deal with conditional sentences. Make sure that those conditional sentences should be ordered solely where the sentencing priority is rehabilitation or restorative justice. If you do that, you will save this vehicle for cases where it is needed, and where you do have a real need for deterrence or denunciatory sentencing, it won't be an appropriate sentence.

Add to that a presumption that in cases where there is sexual violation or serious bodily harm--or even, if you feel the need, significant property damage or interference with property rights--the appropriate sentencing priorities are denunciation and deterrence. If you do it in the form of a presumption, that puts the onus on the accused to show some special circumstances as to why a conditional sentence is appropriate in that case, whereas it may not be appropriate in typical applications of those same principles.

It will also provide an error of principle if a judge who believes in or articulates or recognizes an important need for deterrence and denunciation chooses to try to express that through a conditional sentence. It would be grounds for appeal.

I'm asking the committee to take a hard look at Bill C-9. While the objective behind it is understandable, this is a blunt tool. It is not an effective and, in my respectful submission, carefully tailored way to deal with the problem that I think the government is trying to identify.

[The Chair, Conservative, Art Hanger]

I know you're prepared to discuss both Bill C-9 and Bill C-10, but I would like you to keep your comments to Bill C-9, because this is the bill that is before the committee right now. Bill C-10 is coming up at a later date.

If you could separate that information from your presentation, I'd appreciate it. Your time is running out, so I encourage you to put your conclusion forward.

[Lorraine Berzins, Community Chair of Justice, Church Council on Justice and Corrections]

My name is Lorraine Berzins and I've been on staff with the Church Council for 22 years. Before that I worked for 14 years in federal corrections. When I worked in federal corrections I was the victim of a hostage taking. I say that because I really want to impress upon you that the issues coming before you today, while they may seem a mere matter of words, matter a great deal to the people whose lives are going to be affected. They are going to affect people in several communities whom I know very well. So I bring a real, personal commitment to trying to let you know what we know because we are there with people in the community.

I want to make three particular points about the two bills. We will be discussing Bill C-9 and Bill C-10 together because both bills propose changes that are going to affect judicial discretion, and that's the most important issue for us. They're going to result in greater limits on a judge's ability to impose sentences that fit the specific circumstances of a crime and the offender regardless of actual risk assessment in a particular case and regardless of the real interest of the victim and the community as a result of a particular criminal incident. These changes would tie a judge's hands. They would enforce some new mandatory minimums and they would remove the possibility of a conditional sentence that exists for many offences, even though conditional sentencing is already specifically designed to allow only offenders who do not pose a danger to serve a prison sentence in the community. Any such decision that is deemed inappropriate can be appealed. We believe judicial discretion in sentencing is too important to let this happen. I'm going to come back to this at the end of my remarks.

The second point is about the research evidence about harsher sentences. The design of the changes proposed by both bills shows they are based on the belief that harsher sentences will keep us safer from crime. We acknowledge the real need to protect ourselves from certain offenders who pose immediate risk to the community. But harsher sentences do not translate into increased public safety. Research has clearly shown for years that imprisonment as mere punishment, regardless of actual risk, just to send a message to other potential lawbreakers, is clearly ineffective as a deterrent. The level of recidivism for specific offenders is actually higher if they go to prison. Nor do harsher sentences meet the needs of victims for healing and safety in any individually meaningful way.The changes proposed, upping the tariff of the punishment regardless of individual circumstances and needs, is going to make that courtroom experience for victims even worse by making the legal system even more adversarial than it already is in ways that can deal very hurtfully and disrespectfully at a very highly vulnerable time for a victim. That's the way it works. That's not likely to change.

We agree with the conclusions of credible scholars like Doob and Webster who state that despite a minor study or two that may appear to show signs of some small area of controversial findings in this field, the support for the proposition that harsher sentences work is very weak. Canada's public policy should be based on reflective experience and sound research and not on any single study that is contradicted by a host of other better studies. To do otherwise is irresponsible, and this is especially the case when we can also anticipate the new laws are going to result in higher correctional costs and in more prison time for our most vulnerable groups, like first nations people, other visible minorities, people with psychiatric disorders, and members of the poorest sectors of society. Women, particularly, are going to be affected by a lot of these changes.

Finally, we are particularly distressed about the inconsistencies in the proposed legislation. One example of the inconsistencies in mandatory minimum sentencing provisions proposed, Bill C-10, is what could happen as a result of what's proposed. For example, an individual can rob a corner store, while armed with a fully loaded long gun, such as a shotgun. Let's say he or she has a lengthy criminal record, including numerous prior convictions for other firearms-related offences. He or she faces a mandatory minimum sentence of four years, as proposed. Another individual commits a robbery under similar circumstances but is armed with an unloaded handgun. He or she is a first-time offender with no criminal record. He or she faces a mandatory minimum sentence of five years, as proposed. The same would apply in several other kinds of cases.

In other words, the length of the mandatory minimum in the proposed legislation is based on the legal status of the firearm in question rather than the extent of the actual danger to the public presented by the situation. An unloaded handgun is more serious than a loaded long gun, regardless of the actual circumstances of the crime and the offender or the actual harm done and victim considerations.