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.

[Pierre-Paul Pichette, Assistant Director, Service Chief, Corporate Operations, Canadian Association of Chiefs of Police]

Thank you, Mr. Chairman.

I am Assistant Director of the Montreal Police Service. With me today is Mr. Clayton Pecknold, Deputy Constable of the Saanich Police Service, in British Columbia.

We are appearing before you today as representatives of the Canadian Association of Chiefs of Police. We are both Vice-Chairs of the CACP's Legislative Amendments Committee.

I also want to take this opportunity to convey greetings from our President, Mr. Jack Ewatski, who is the Chief of Police for the City of Winnipeg.

The Canadian Association of Chiefs of Police represents the leadership of Canada's law enforcement agencies. Ninety per cent of its members are directors, assistant directors or other senior officers with a variety of municipal, provincial or federal police forces in Canada.

Our Association's mission is to promote effective enforcement of Canadian and provincial laws and regulations for the purpose of protecting the safety of all Canadians. Thus we are regularly called upon to take a position on legislative reforms. We are always enthusiastic participants, along with government officials, in consultations concerning criminal law reform, just as we are doing today before this Committee.

I will now turn it over to my colleague, Mr. Pecknold, to present our views on Bill C-9. He will be making his comments in English. Following that, I will have some closing remarks.

[Graham Stewart, Executive Director, John Howard Society of Canada]

Thank you, Mr. Chair, for the invitation to come and speak to you about Bill C-9. I'm happy to be here.

First, I'll give you a bit of background. The John Howard Society is a national charity made up of organizations that work with offenders to help them reintegrate into the society as law-abiding citizens. We have about 12,000 members across Canada who are engaged with us.

I'd like to acknowledge that the debate with respect to conditional sentencing is an appropriate one. It's very important for Parliament to be actively engaged in decisions about the use of discretion, and particularly judicial discretion, in sentencing. And the second point is that we're pleased to see that the bill before us, while it tries to restrict the use of conditional sentence, does not challenge its purpose or its objectives.

The question before us, as we see it, is a fairly simple one. The question is whether it is ever justified to give a conditional sentence for an offence where the maximum prison term permitted by the Criminal Code is ten years or more. If it is justified, then Bill C-9, which precludes conditional sentences in every such case, is excessive.

I'd like to talk to the question of the justification, and will do so, but I'd like to begin by just pointing out that over the last 30 years Canada and the United States have been engaged in a very substantial experiment in justice. Thirty years ago, in 1974, the incarceration rate in Canada was 90 per 100,000, and in the United States it was 149--very similar. Thirty years later, the incarceration rate in Canada is 108, up slightly, while the incarceration rate in the United States is 749. It's a 600-times increase in incarceration.

Over those years, crime has gone up and crime has gone down in both countries, largely in unison. In fact, if you look at murder, which is the best recorded, the murder rate in both countries has gone up and down dramatically over those 30 years at the same time, in spite of the fact we've got very different criminal justice systems.

No one benefits from inflated incarceration rates. Canada is much better off than the U.S., where enormous resources are diverted to maintain an inflated rate of imprisonment, while factors relating to their higher violent crime rates have largely gone unaddressed. The reason for Canada's lower incarceration rate is largely sentencing policy that guides sentences so they are proportional to the gravity of the offence and the degree of the responsibility of the offender, and are based on a presumption that the least intrusive measure will be used.

This raises the question: why have a principle of least intrusive measures? The reason is that no other principle makes sense. I had a conversation with one of the past commissioners of the Correctional Services of Canada, who was telling me of a situation in which their principle of using no more force than necessary was being questioned as to whether it was too soft, and his response was to say that we could change that, we could change it to use just a bit more force than necessary.

When we don't have the notion of the least intrusive measure, then we inevitably start moving towards a chaotic system. Least intrusive measure is not the same as popular levels of intrusive measures. When the level of intrusiveness satisfies everyone, then the harshest penalties become the norm.

The implications of least intrusive measure, if we're to have sentencing based on that principle, is that each case must be assessed individually before a sentence is passed; and secondly, options must exist that are less intrusive than is the norm for such offences generally.

Bill C-9 attacks these notions directly by precluding conditional sentences where the maximum term is ten years or more, and in so doing it precludes individualized assessments in the least serious cases or where the mitigating factors are strongest.

Secondly, it really prevents the courts from being able to justify and explain the sentences they pass, other than with reference to the legislation. The existing legislated limitations on conditional sentences, along with the substantial direction from the Supreme Court, are serious limitations. These limitations are reflected in the fact that only 6% of all convicted cases receive a conditional sentence. The existing restrictions effectively avoid the use of conditional sentences in clearly inappropriate situations, while avoiding rigid and arbitrary measures that conflict with the principles of sentencing.

Today, conditional sentences are being used cautiously and in appropriate cases. More than 50% of the cases are summary offences, only 47% are indictable, and the terms of sentences for conditional sentences are double those of prison terms that people might get. So they're being used cautiously. They're also being used in conjunction with penalties that make them very firm and punitive.

Finally, where cases arise that seem to be inappropriate, we have an appeal system of courts right to the Supreme Court. They have been active, they have reversed decisions, and they've added considerably to the limitations that are placed on conditional sentences. It's a system, I think, that works; it's also open and visible.

Our courts have acted responsibly, but our courts can not speak for themselves. Courts do not engage in public debate about their sentences, and therefore I think are easy targets. Bill C-9 promotes distrust in our judiciary, and that has serious consequences that must also be considered. If we cannot trust the courts with conditional sentence decisions, then where can we trust them?

Using a ten-year maximum term as the point of ineligibility will only introduce new areas of unfairness, without an appeal process to address those circumstances. The Canadian Sentencing Commission characterized the maxima in criminal justice as “unrealistic” and “disorderly”. They went on to say, “Little guidance for anyone can be expected from these maxima.” Presumably “anyone” includes Parliament.

Is it really that hard to imagine situations where a conditional sentence is appropriate for a theft over $5,000, for the theft of computer services, for theft of a credit card, for a break and enter, possession of break and enter instruments, or theft from the mail? Could we not imagine some circumstances where those would be appropriate?

In brief, it is our view that the purpose and principles of sentencing found within section 718 of the Criminal Code are substantially correct and should not be ignored or interfered with. The sentencing courts, with reviews through appeal up to the Supreme Court of Canada, are competent and the only bodies capable of establishing appropriate and just sentences.

Public confidence in conditional sentencing can not be achieved over the longer term through measures that depend on arbitrary and rigid sentencing rules such as those proposed by Bill C-9. Further, it's our view that research over many years has demonstrated that the deterrent effect of higher penalties is very unlikely to have a significant impact on crime rates generally, and particularly unlikely to have an impact on those who are typically being given conditional sentences.

The impact of Bill C-9 will be disproportionately felt by vulnerable people, based on income, class, ethnicity rights, and other factors beyond their control. The public perception of the justice system will be distorted by having discretion moved from the courts and judges to the prosecutors, for the decisions will not be apparent and will be melded into plea bargaining situations that are already viewed critically by many in the public.

Court proceedings and trials will become very expensive, consuming a great deal of time. Prison costs will go up substantially, particularly for provincial and territorial institutions, with estimates of as many as 4,000 or up to a 20% increase in provincial incarceration rights, in institutions that are probably the worst institutions in Canada. They're the most crowded, they have the fewest programs and services, and are the most dangerous in many respects. Many don't meet the minimum UN standards on the conditions of imprisonment.

Equally troubling is the substantial amount of money that would be spent with respect to this bill that represents lost opportunities in other areas, such as prevention and treatment, where it could be spent much more effectively to reduce crime generally.

It's our position that sentencing is an individual process that must reflect the specifics of the offence and the offender. The courts must have a full range of options available and the discretion to choose those that are most appropriate.

Conditional sentences cannot be applied fairly or appropriately under the restrictions proposed by Bill C-9. While some direction on the use of conditional sentences is appropriate, those limits should not undermine the good purposes of conditional sentences or unreasonably restrict the courts from using this option in appropriate situations in order to remain consistent with the fundamental principles of sentencing.

We do not believe that inflexible sentencing provisions can make the system more appropriate, effective, or principled. Our recommendation, therefore, is that Bill C-9 be withdrawn or, in the alternative, that measures intended to give greater guidance to the courts in the use of conditional sentence be consistent with the fundamental principles of sentencing. This would mean that the guidelines would be presumptive or advisory, but not mandatory.

Thank you.

[The Chair, Conservative, Art Hanger]

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

We are continuing our debate on Bill C-9, an act to amend the Criminal Code on conditional sentence of imprisonment. We have before the committee witnesses from three different organizations. They will testify and we will have the opportunity to question them.

From the John Howard Society of Canada we have Mr. Graham Stewart. Welcome.

From the Canadian Association of Chiefs of Police we have Pierre-Paul Pichette. Welcome to the committee. I see you have the Deputy Chief of Central Saanich Police Service, Mr. Clayton Pecknold, with you. Welcome.

From the Canadian Resource Centre for Victims of Crime we have Krista Gray-Donald. Welcome to the committee.

I will ask Mr. Stewart to start the process. Please keep your remarks to about ten minutes, and that will allow time for questioning from the members here.

Opposition Motion--Status of Women

[Myron Thompson, Conservative, Wild Rose, AB]

Mr. Speaker, I hope I can do it in 30 seconds.

The member talked about violence against women and children. Since 1993 I too have been pushing hard in this House to bring in some tough legislation to deal with men in particular, because the majority of them are men, who would dare seriously assault women and children. It makes me very angry when they do that.

I have seen in the last 13 years that we have come to some fairly decent decisions to now where I have seen grain farmers go to jail for selling their grain, an elk poacher go to jail for shooting an elk and in the same week, two cases of serious abuse and assault on a child and one on a woman, and the perpetrators receive house arrest and community service. Out of these cases, a very large majority, it was reported to the justice committee last week, are getting house arrest and community service.

I am suggesting that the member, based on her speech, is prepared to support this government's Bill C-9. Is the member going to support the bill that would put those people in jail? Serious crime deserves serious time.

[Tony Cannavino]

When we're talking about the way criminals exploit the system and the flaws in the system, it's unbelievable. They're experts in that. Plus they have the defence attorneys. They pay big money just to make sure that.... I'm sorry Mr. Lemay isn't here, because he was one of those strong defence lawyers. You too? I'm sorry. But the thing is, that's their job, to find some flaws in the legislation or in the Criminal Code and exploit it. They're entitled to a defence, and that's their job.

I'll give you an example of a case we had here in Canada, the Erez case. That person was convicted of trafficking drugs in the United States and got 15 years. Here, the maximum was 10 years. So he asked to come and serve his sentence in Canada. When he came here, because it's considered non-violent here and the time he spent in the United States was considered, he stayed here two months. Two months, and then he was released because it was considered a non-violent crime. One month after he was released, he got shot in a hotel in Toronto, during a drug deal at the Harbour Castle.

That's one case. There are a lot of those cases. That's the example. Bill C-9 for us is one good step in the right direction. We're not here advocating that there should never be any conditional sentencing. The only thing we want to make sure of is that.... The ones included in Bill C-9 we think are very good, and we suggest legislators also add some more, considering what kind of crimes they are. That is the way we see Bill C-9, as the first good step in the right direction, even though in 1996 the intentions were good from the House of Commons.

The other point about how much it costs for monitoring or supervising those people, which I think is $1,700, is that it's a multi-pronged approach we need to have there. It's not only adding or doubling the amount; they have to have more resources. As I said, when you call one of them, you don't have a clue where they are, because of the transfers of calls. They could be anywhere in Canada or in the United States. Why? Because you transfer your house phone to your cell number, and they'll never know that it was a transfer of a call. So you would think he's at home and he'll probably say yes, he's at home, he's in his living room, because he knows you're not going to knock at the door. It never happens, or it happens once in so many times that he's going to take the risk.

The other thing is that they have to go every Friday and sign in at the police station. It takes about 30 seconds. He goes there. He's still in the area, so he signs in, as it was indicated in the sentence that he has to go to the police station.

So those are things that I think we have to review. That's why we're asking. I talked to the public safety minister maybe two weeks ago, saying we're hoping that this review will be announced very soon, because it is serious. And I think it goes in the way that we see with Bill C-9 and other bills, talking about mandatory minimum sentencing. So as I said, it's multi-pronged, but it's step by step. We need many tools.

[Myron Thompson, Conservative, Wild Rose, AB]

I've had to laugh at that since 1993.

I'm wondering if Mr. Elliott would agree that if we did indeed have zero tolerance, maybe we could put people who have drug problems into an institution where they could get some genuine help. But putting a drug addict into a penitentiary today is like sentencing my Uncle Henry, who is an alcoholic, to the wine cellar for the next 20 years. It makes no sense. I think we really have to start buckling down and asking if it makes sense.

I had a personal case of a break and enter, a theft. All I was told to do was report to the insurance company. I'll bet you that happens thousands and thousands of times. That's not what law enforcement is all about.

What we're getting down to with Bill C-9 is that we're trying to create something that addresses the big problem that people see out there, as victims. I really personally get tired of constantly saying, “What about the offenders?”

As for sexual assaults and other sexual offences, I'd like to have a stat some day about what I think is a humongous number of people getting conditional sentencing for those crimes, and I'll bet you a lot of those are against children. We don't know that. But people see it. They see a crime against a child, and they see the guy walk with a conditional sentence for sexual assault. Then on the same day they see a guy who shoots an elk out of season go to jail for five years. That's what's not making sense. I think what Bill C-9 is trying to do is make sense of the purpose of conditional sentencing, recognizing that the punishment must fit the crime.

If you want to comment on what I said about what your statements were, please do, and I'll be quiet.

[Tony Cannavino]

Mr. Murphy, that's what we see here. We're not against conditional sentencing, even though it seems that we feel strongly about certain crimes that are included in there that we think should not receive conditional sentencing. That's why for certain crimes we also asked the government to come up with mandatory minimum sentencing. Why? It is because we have to go that way. There has to be a deterrent.

The other thing is that of course we would like to invest...we think that education and prevention are very important. That's why we have asked the former government and this government to come out as soon as possible with a national drug strategy. It is because we see the link between a lot of crimes and the drug problem. That has to be pivotal. It is the cornerstone of the other approach of education, prevention and treatment; it is to help the people.

I know you're all willing to help people who are struggling with that problem. What we would like to see added to Bill C-9 is certain crimes that we believe should not receive conditional sentencing. We don't have a problem with the rest. It's all the other ones. What happens in court is that they get conditional sentencing and then we struggle with it. It's not only us. It's our job to arrest criminals. We see a lot of victims and we want to help Canadian citizens, we want to protect them. That's our job. That's why we need your support.

We come here maybe not with all the statistics you would like--it's not our job to bring the statistics--we're here because we're the national voice of front line police officers. We're here to tell you what they are telling us is happening in the streets and in their communities. That's why we're here with a brief that gives you an indication of where we would like you to support us, and by supporting us you will support Canadian citizens.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

First of all, I want to thank you all for being here today. Mr. Cannavino, I see you have not changed and that you are quite able to defend your positions.

I will start with a brief introduction and then I will ask a question of Mr. Cusson and Mr. Altimas, who will undoubtedly be able to answer.

I am certain you saw as well as I did yesterday on TV that the Pierre-Elliott-Trudeau International Airport in Montreal is literally a funnel for drugs and that personnel there, police officers and civilians, are being bribed. They are afraid of drug pushers. You seem to have a positive view of conditional sentences. We know that airport staff are afraid of drug traffickers.

Could you explain to me why correctional services officers who on a daily basis are responsible for supervising people involved in the drug trade, hard drugs and otherwise, are being bribed? Perhaps they are afraid. You have no statistics on that.

The only thing we do know is that it costs approximately 20¢ an hour to monitor drug traffickers outside of jail. Drugs, on the face of it, are not dangerous, but let us not forget that in Columbia and Afghanistan, growers are gunned down with machine guns because we buy drugs. That is the “not in my backyard“ effect. We must put an end to it. It is not because the issue is not serious here that it is not elsewhere. Today, in Venezuela and in Afghanistan, people are getting killed because we are buying their drugs. That is just not right.

I learned one thing from my practice, which I would like to share with you. In Mr. Elliott's brief, which was read earlier on, we see that 40% more drugs are making their way into the jails. Imagine what it is like when you are not in jail! When you are not in jail, how many drugs are getting in? That is what I would like to know from you.

We are close to our constituents, we work for good honest people, people like you and me, and for the victims, because we all have family members who were victims. Is it normal to imagine that for serious crimes, when someone is behind bars... There is already a 40%t higher probability that drugs are going to get in, but it is not 100% more, because the people who are monitoring these offenders, that we have been referring to from the beginning, do $1,792 worth of monitoring per year, in other words 20¢ per hour. If you think that these people are not afraid of drug dealers and that there is no chance of their being bought, you are living in some alternate reality. At the Pierre-Elliott-Trudeau International Airport in Montreal, they make approximately $30,000 per year, they have a few duties to carry out, they are being bribed and they are afraid.

I would like to know your position on this. How can you try to convince me to accept your position rather than that which is set out in Bill C-9?

[Tony Cannavino]

I'd like to give an example, if I may.

Before parole is granted, the level of dangerousness of individuals must be assessed in order to determine whether or not they should remain in prison and serve their whole sentence. Parole has become almost automatic. We have seen several cases where people were sentenced to imprisonment for sexual assault and murder and were granted parole. I could give you several examples of cases, for example that of Brassard, who was granted parole and then committed aggravated sexual assault and killed his victim. He went back to prison and was released again. This happened three times. There are many cases like that. Why? Because the exception ends up becoming the rule over time. It is then incumbent upon us to emphasize the exceptional nature of this rule and to attempt through all possible means to keep these people inside. That is our problem, our burden.

We agree with the principle of Bill C-9. We would simply like to add other cases.

[Tony Cannavino]

In our brief, we also call upon the government to include in its bill certain offences or crimes which would otherwise be beyond our reach if Bill C-9 were adopted. We also talk about the people who will not be affected by the 10-year threshold, those who receive a sentence of less than 10 years.

Let me give you an example...

[Réal Ménard, Bloc, Hochelaga, QC]

But let me move to my second question, because we have no statistics here. So, you can't come before parliamentarians and tell them to do away with this tool used by judges because of a public safety issue, when you have no figures on conditional sentences. That has already been mentioned.

We have no statistics on recidivism. More specifically, there is a missing piece to the puzzle, which is not your fault or mine. It means that we will not be adopting this bill quickly, and that we will be asking for studies to be carried out, for instance on rehabilitation.

So I move to my second question. How do you feel the judiciary has used this tool of conditional sentences? For instance, one of the recommendations made by the Canadian Police Association is to include within Bill C-9 all offences which are not covered. You would like us to add child luring, the removal of a child from Canada, and other offences to Bill C-9?

[Richard Elliott, Deputy Director, Policy Unit, Canadian HIV/AIDS Legal Network]

Thank you, Mr. Chair and members of the committee.

I want to thank the committee for giving us the opportunity to comment on Bill C-9.

I'm here speaking today on behalf of the Canadian HIV/AIDS Legal Network. You may be wondering at first glance why it is that an AIDS organization is concerned about this legislation. I hope that by the end of our time today you may have some sense of why we think this is a dimension of this legislation that the committee needs to grapple with as you go forward in your deliberations.

First, briefly let me tell you about our organization, the Canadian HIV/AIDS Legal Network. We are a national non-governmental organization, one of approximately 10 in this country that work in partnership with the federal government and other orders of government to respond to the AIDS epidemic in Canada. Over 14 years we've become one of the world's leading organizations working on legal and policy issues related to HIV.

We have over 200 members across the country and some internationally, many of them AIDS service organizations that are based in the community and are working on the front lines of the response to the AIDS epidemic. It's because of that particular expertise and those particular concerns that we're here today.

In brief, we're concerned that there may be some unintended consequences—or we would hope they are unintended consequences—of this legislation that need to be considered as it moves forward. We are concerned in particular that Bill C-9 may in fact be counterproductive and may undermine some of the efforts to respond to the HIV epidemic among some of those Canadians who are most vulnerable to HIV—who are most vulnerable in the sense of being socially and economically marginalized and who will, we fear, because of that, as I will explain in a moment, bear the brunt in particular of this kind of legislative approach.

For many years now, Canada has recognized in its stated policy that the issue of problematic substance use is a health issue first and foremost rather than an issue to be dealt with via the criminal law and law enforcement.

Unfortunately the rhetorical commitment to dealing with this as a health issue, which has also been accompanied by a rhetorical commitment to dealing with HIV through measures that are shown by the evidence to be effective and in ways that actually respect and protect human rights, has not always been reflected in the actual practice, certainly at the federal government level, in the response to drugs in Canada.

It's particularly the application of Bill C-9 to drug offences that we are speaking about today; we're not offering any comment on any other aspects of this legislation.

When I say that this stated commitment to dealing with substance use as a health issue rather than a criminal law issue has not been reflected in the practice of the government's response, I want to recall to you that a few years ago, in 2001, the Auditor General issued a report on the spending at the level of the federal government in response to drugs, which was around $500 million. She reported at that time that almost 95% of that money was spent on law enforcement and criminal justice expenditures, notwithstanding the fact that Canada has repeatedly said we have a so-called “balanced” approach to responding to problematic drug use in Canada that includes not only law enforcement as one of the four pillars, but the three other pillars of measures to prevent drug misuse, to provide treatment for those with addiction and other problematic substance use, and to adopt proven and well-studied harm reduction measures, including things such as needle exchange programs.

Unfortunately now, in our view, with this legislation we are not moving in the right direction. We are in fact risking exaggerating the existing imbalance within the federal government's response to drugs. I want to urge upon this committee that you take some time after the comments you hear today to think about how this legislation may play out in the context of drug offences, and about what ultimately that means in terms of impact upon the health of some of Canada's most vulnerable and marginalized people and the public health more broadly.

Before this legislation was introduced, when it was something being contemplated, we put out a briefing paper that speaks in general terms of the notion of mandatory minimum sentences being applied to drug offences. We have tried to highlight why this is not necessarily good justice policy or good public health policy, particularly with a focus on an effective response to the HIV epidemic among people who use drugs. That briefing paper, I believe, has been shared with committee members. If it has not yet, we will make sure that it is. But since the bill was tabled and we've seen the actual provisions in the bill, we've prepared the additional brief that you have before you today, which looks specifically at how Bill C-9 will apply to offences under the Controlled Drugs and Substances Act.

In our view, Bill C-9 is a form—it's a variant—of mandatory minimum sentences; that is, Bill C-9 does not specify that if you commit x offence, you must spend a minimum y number of years or you must be subject to such and such a minimum sentence. It does, however, say in its removal of the availability of conditional sentences for some of the Controlled Drugs and Substances Act offences that if you commit those offences, a conditional sentence will no longer be an option if the sentence imposed is a term of imprisonment; that is, it mandates that a sentence of imprisonment be served in a correctional facility rather than a conditional sentence. So it mandates a certain minimum level of harshness of penalty, if you will.

There are two things I want to say specifically about how the legislation will apply to drug offences.

The first is a positive feature of the legislation, although I think it's really more a happy happenstance of the legislation in the way it's drafted. Simple possession offences under the Controlled Drugs and Substances Act would not be covered by Bill C-9, and therefore, conditional sentencing would still be an option available to the court, assuming of course that the other criteria set out in the Criminal Code have been satisfied. This, in our view, is the silver lining in legislation that is, on balance, problematic.

Let me give you another example of how this legislation will apply to drug offences and why we think it's particularly problematic, and that is specifically the question of the offences of trafficking and possession for the purposes of trafficking. Why is it that we say that it would be problematic to apply Bill C-9, that is, to withdraw conditional sentences in the event of someone charged with a trafficking offence under the Controlled Drugs and Substances Act? There are a number of reasons for this.

The first is that, although it might be tempting to pretend that we can fairly simplistically target just so-called drug dealers and somehow not bring to bear the full weight of the criminal law against people who are simply drug users and who are dealing with addictions, and to think that therefore this is consistent with the notion that we deal with drug offences and drug misuse as principally a health issue rather than a criminal issue, it's not that simple to actually differentiate. In fact, the way the legislation is drafted right now, it would mean that someone convicted of trafficking any quantity of, for example, heroin, even someone who is in possession of a fairly small amount and is perhaps sharing that with someone else in their drug-using network, would not be able, if a sentence of imprisonment is ordered by the court, to serve that sentence in the community.

We're mandating sending people to prison for offences that are not necessarily a violent offence and that involve perhaps trafficking even very small quantities. In fact, there is evidence, including Canadian evidence from the largest cohort of injection drug users who have been studied over many years in Vancouver, to show that a significant number of people who are users by injection of certain controlled substances have also in fact engaged in small-scale, street-level dealing, often to support their habit. It's those people in particular who are going to be most easily targeted for law enforcement efforts and most likely to be caught up and charged with trafficking offences. They would also be the people who would therefore be most likely to be sentenced to spend time in prison if a conditional sentence were not available for someone convicted of trafficking. It would be rare that in fact it is the real profiteers, those who are engaged in very large-scale trafficking of drugs--criminal organizations and so on--who would actually be caught by the trafficking offences.

What we've seen amongst drug users in the Vancouver cohort, for example, is that a significant number of them have engaged in direct selling of small quantities of drugs, again to support a habit, or they've engaged in what's called “middling”, that is, carrying small quantities, or what is called “steering”, that is, directing someone to a dealer where they can purchase the drugs they're needing. Those kinds of things could all fall within the definition of trafficking of a controlled substance under the CDSA, and as a result, given that the penalties for trafficking set out in the Controlled Drugs and Substances Act would be caught by this 10-year threshold in Bill C-9, we would lose the opportunity for conditional sentencing of those cases.

I think it's also very important to understand that of those people who use drugs, who have also engaged in these “trafficking activities”, it's predominantly those who have the highest levels of addiction who have been involved in these things.

The study that will be published fairly shortly from Vancouver finds that the involvement in this small-scale, low-level street dealing of drugs has been associated with the frequency of heroin or cocaine injection, binge drug use, borrowing and lending of syringes, accidental overdose, and recent incarceration. All of those are markers of a higher intensity of addiction, so in effect we're talking about targeting people who are users, many of them with addictions, with this kind of legislation.

I'm not suggesting that's necessarily the purpose behind this legislation, but it is a consequence of this legislation of which the committee should be mindful.

I mentioned that incarceration was one of the factors associated with those who had engaged in small-scale street-level trafficking, and that leads me to a point about why it's bad public health policy to actually be incarcerating people who are drug users. No one, including Correctional Service Canada, disputes that drugs are in prisons. This is a reality in every country in the world, and there's no dispute that prisoners are injecting drugs in prison.

Over a decade ago, Correctional Service Canada reported that 40% of federal inmates admitted using drugs in prison, 11% of them by injection. What we also know, of course, is that there is little or no access to sterile injection equipment in prison, so we're sentencing people with addictions to drugs, many of them who use their drugs by injection, to a setting in which they're engaged in drug use in one of the riskiest ways possible because they can't actually get sterile injection equipment, even though we've had very successful needle exchange programs operating across Canada for over 20 years now. Time and time again, in Canada and around the world, every single study that has looked at needle exchange programs has concluded that this is one of the most important interventions in responding to HIV and the spread of other blood-borne diseases among people who inject drugs.

[Patrick Altimas, Director General, Association des services de réhabilitation sociale du Québec Inc.]

Mr. Chairman and members of the committee, thank you for this invitation and the opportunity to share our thoughts with you.

I welcome the opportunity to discuss Bill C-9 with you. Thank you again for the invitation.

The Association des services de rehabilitation sociale du Québec represents over 50 community organizations actively involved in crime prevention and working with adult offenders in most regions of Quebec.

We want to ensure that a fair balance is struck between the needs of victims in our communities and those of offenders. The association has been in existence for over 40 years, as have some of our organizations. Over fifteen organizations are currently involved in monitoring conditional sentences in the community. We therefore have direct experience with this particular clientele.

The ASRSQ is working with the Elizabeth Fry Society of Québec and Canada as well as defence counsel associations in Montreal and Quebec City to consider the issues raised by Bill C-9. We are pleased to share with you the fruit of our considerations. You have them before you. I will not read the brief in full, but I would like to draw your attention to a few points.

Our brief focuses on the fact that Bill C-9 wants to limit eligibility to conditional sentences despite the fact that there is no evidence today to show that that is needed. Conditional sentences seem to work. Judges seem to respect the provisions of the Criminal Code and the limits imposed therein.

Second, access to conditional sentences is being limited based on one sole criteria, in other words maximum sentences provided by the Criminal Code. Very different type of crimes would be treated in the same way. For instance, the possession of counterfeit currency and incest would be treated identically. This would involve one sole criteria, and the use of only one criteria goes against the very principles of sentencing within our justice system.

Third, we believe that conditional sentences are severe. Fourth, they are safe. Fifth, we consider them to be consistent and preventative, and so does the Canadian public in general.

No evidence has been put forward to suggest that the problem the bill aims to correct is widespread. There are no serious studies to show that conditional sentences are a problem today nor that there has been an increase in crime and recidivism.

Sentencing judges must consider the relative seriousness of an offence. They must also consider the dangerousness of the individual. Even though some offences may seem violent, judges must consider both the offence and the offender.

Bill C-9 strays from fundamental Canadian sentencing principles such as the use of incarceration as a last resort, proportionality of sentencing based on the seriousness of the offence, the degree of responsibility and the need to tailor sentences to individuals.

The bill could reduce the period of time during which offenders are being monitored. Some studies show that, in some cases, conditional sentences lead to longer prison terms than if the judge had decided to impose a custodial sentence.

Take, for instance, a person who is in prison for one year. Under the law they are released without being monitored after having served two thirds of their sentences.

Conditional sentencees, however, must complete the entire year of their sentence and the monitoring period lasts twelve months.

By providing identical treatment for offences like the possession of counterfeit currency and incest, as I stated it earlier, the bill contributes to a growing sense of confusion about the notions of seriousness and dangerousness. We do not believe that reducing access to conditional sentences will make our communities safer. On the contrary, over the medium and longer term, the safety of our communities could be jeopardized.

Allow me to explain. Some people today could be entitled to a conditional sentence, but would not be under Bill C-9. The economic and social impact of that would be significant. Jobs could be lost, families could be shattered, etc.

We therefore believe that this bill is unnecessary. We do however believe more studies should be undertaken on conditional sentences since their inception. This will allow for better understanding of the issue and an accurate assessment of the effect of conditional sentences over the last few years.

According to the experience of workers within our community network, the conditional sentencees they work with are not necessarily violent people. They successfully complete their conditional sentences and, when they do not, it is because of breach of conditions rather than recidivism.

So, what is the problem? That is the question we have been asking ourselves. We believe that further study, or even larger studies than those we currently have access to, should be carried out before any changes are made to the system.

Thank you, Mr. Chairman, and members of the committee, for having given me this opportunity to speak to you.

[Tony Cannavino]

Thank you. Mr. Chairman, members of the committee, good afternoon.

The Canadian Police Association welcomes the opportunity to appear before the House of Commons Standing Committee on Justice and Human Rights concerning Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment). The CPA is the national voice for 54,000 police personnel serving across Canada. Through our 175 member associations, CPA membership includes police personnel serving in police services in Canada's smallest towns and villages as well as those working in our largest municipal cities, provincial police services, members of the RCMP, railway police, and first nations police associations. Our goal is to work with elected officials from all parties to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

For over a decade, police associations have been advocating reforms to our justice system in Canada. In particular, we have called for changes to bolster the sentencing, detention, and parole of violent offenders.

The Canadian Police Association has been urging governments to bring an end to Canada's revolving-door justice system. Chronic and violent offenders rotate in and out of the correctional and judicial systems, creating a sense of frustration among police personnel, fostering uncertainty and fear in our communities, and putting a significant strain on costs and resources for the correctional and judicial system. We believe that a positive first step to addressing these concerns is to eliminate access to conditional sentences for certain criminals.

Conditional sentencing was introduced in 1996 to bridge the gap between probation and incarceration for less serious, non-violent minor offences. The application of the law by the courts has in fact permitted offenders convicted of serious and violent crimes to avoid incarceration and serve their sentences in the community.

Bill C-9 amends section 742.1 of the Criminal Code. It provides that a person convicted of an offence prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more, is not eligible for a conditional sentence. Although we support the objectives set out in Bill C-9, we are concerned that the maximum term of imprisonment of 10 years or more would leave out certain offences that should not be eligible for conditional sentencing.

The current law is inadequate. Canadians are acutely aware that current sentencing and parole practices are inconsistent with public expectations, which undermines public confidence in law enforcement and, more particularly, our entire justice system. Canada's front line police officers interact with members of the public and victims of crime on a daily basis. They understand and share in their sense of frustration. People who are introduced to our justice system as witnesses or victims of crime are frequently at a loss to understand the principles and processes applied in sentencing convicted offenders, how the sentences are served, and the opportunities available for early release. We believe that offenders should be held accountable for the offences they commit.

Each victim is equally important. Unfortunately, the current sentencing and conditional release provisions do not recognize this principle. CPA members are very concerned that court decisions applying to current legislation have permitted offenders to receive conditional sentences of imprisonment for crimes of serious violence, including manslaughter, sexual assault offences, driving offences involving death or serious bodily harm, drug trafficking, major theft, and theft committed in the context of a breach of trust.

Canada's police officers are frustrated, and they have lost confidence in a system that sees violent offenders regularly returned to the streets. We need to restore meaningful consequences and deterrents in our justice system, which begins with stiffer sentences, real jail time, and tougher parole eligibility policies for repeat and violent offenders. We raised this issue with the Minister of Public Safety as recently as this month.

These are the recommendations that have been consistently advocated by CPA: first, Parliament should convene an independent public inquiry into Canada's sentencing, corrections, and parole systems for the purpose of identifying measures to provide meaningful consequences for offenders, reinforce public safety, and instill public confidence; second, in determining the level of security for serving sentences, an offender's criminal history in crimes for which he or she is sentenced should be the predominant factor; third, give victims greater input into decisions concerning sentencing, prison classifications, and parole and release; and fourth, tighten our laws and prison policies to protect Canadians from violent criminals.

On limiting access to conditional sentencing, the CPA contends that persons convicted of violent sexual offences or crimes committed where the potential for violence exists should not be given an opportunity to be considered for conditional sentencing. We maintain that sex offences, especially those offences involving children or violence, should be banned from conditional sentencing. For example, criminals convicted of the following offences would not be covered by Bill C-9 in the present form: luring a child via the Internet, removing a child from Canada, abduction of a person under the age of 16.

On public safety offences, the CPA is further concerned that offences committed against those sworn to protect our communities, such as the crime of assaulting a police officer, and offences that have serious police officer and public safety consequences, such as flight--failing to stop a motor vehicle while being pursued by a peace officer--are not covered by Bill C-9. This is because the maximum sentence for these offences falls short of the proposed 10-year minimum.

We acknowledge that the current sentencing regime contained in the Criminal Code is at times contradictory and illogical. This serves to further support our contention that the sentencing regime should be reviewed, along with the current corrections and parole systems. We further submit that Bill C-9 should be amended to prohibit conditional sentences for the offences of flight, assaulting a police officer, disarming a police officer, and participation in activities of a criminal organization. We contend that any person who chooses to assault peace officers in the lawful performance of their duties or to jeopardize their safety and the safety of others by engaging police in a motor vehicle pursuit should be barred from receiving a conditional sentence.

In addition, Bill C-9 does not capture offences involving weapons where the Crown chooses to proceed summarily, such as possession of a weapon for a dangerous purpose, possession of a weapon in a motor vehicle, possession of a restricted or prohibited firearm with ammunition, and possession contrary to an order. We contend that a conditional sentence is not an appropriate disposition of a charge involving unlawful possession of a weapon or firearm.

Non-violent offences. The arguments against limiting the use of conditional sentencing for serious non-violent offences are misguided at best. As front-line professionals, police officers see firsthand the far-reaching impact of minimizing the seriousness of property crimes and other so-called non-violent crimes.

The penalties for serious property crimes have become so trivialized, with an absence of meaningful and proportionate consequences, that criminals have come to understand and work within the system, committing more criminal acts. Whether they steal a vehicle or commit a break-and-enter into a home, they know that should they get caught, they will be back out on the street in no time. The lack of meaningful consequences has become so obvious to organized crime that they use it as an effective recruiting tool. The impact on families victimized by such offences is marginalized as it is expected that insurance will cover the monetary costs. Too often, however, the deeper emotional trauma of having a home burglarized, an identity stolen, or a family heirloom taken, are overlooked. In fact, property crimes have become so trivial for criminals and the justice system that police departments have reduced and often cut resources for officers to investigate property crimes, and resources are transferred to the priorities.

A glaring example of this situation is auto theft. Young offenders and car thieves know that there are no meaningful consequences for car theft. They steal cars for cash with little fear of apprehension and even less fear of consequences from the courts.

What is certain, however, is that having someone violate your privacy and having your precious possessions stolen out of your own home is not something trivial for the victims of these crimes. Victims will never feel completely safe in their own homes or in their community from that point on.

Property crimes are often linked with other serious criminal behaviours and social issues, including drug trade, organized crime, and white-collar crime. These are interconnected and cross-cutting issues that cannot, and should not be neglected. Unfortunately, drug trafficking and production offences also fall within the category of “non-violent” offences, which totally ignores the tragic consequences of drug abuse in our communities, and the inextricable link between gang violence and the drug trade. Drug lords and grow operators avoid meaningful consequences through conditional sentences and accelerated parole provisions; provisions originally intended for non-violent crimes. We have seen examples of captured drug traffickers apprehended in the United States seeking extradition to Canada, to take advantage of these lenient sentencing and parole provisions.

Level of supervision. According to the Library of Parliament's legislative summary on Bill C-9, the Canadian Centre for Justice Statistics reports that the annual cost of supervising an offender in the community is $1,792. We are concerned that these costs are woefully inadequate given the nature of offenders being released into the community. We would estimate that the current level amounts to less than one hour per week for supervising offenders serving conditional sentences in the community. We contend that the probation and parole officers serving in our communities are seriously understaffed and overworked, minimizing the effect of supervision.

In conclusion, the experience since conditional sentencing was introduced in 1996 demonstrates that the application has far exceeded the intent. Bill C-9 is a required measure to tighten these provisions and exclude application to more serious crimes.

We contend that limiting the use of conditional sentencing reduces the risk for communities that continue to be victimized by violent criminals, sexual offenders, and serious invasions of their privacy and intimacy through property crimes. We do, however, recommend that the bill be strengthened by addressing crimes of violence, sexual offences, and serious risks that are not presently contained in the proposed legislation.

In order to provide consistency and balance to this legislation, we would urge Parliament to bring changes to Bill C-9 that would reflect the seriousness of certain violent and sexual offences that do not have a maximum term of 10 years or more, while keeping the option of conditional sentencing for less serious crimes for which an alternative sentencing mechanism is appropriate.

Bill C-9 is a positive first step to address the revolving-door justice system and instill meaningful and proportionate consequences for serious and violent crimes. The Canadian Police Association supports the bill in principle and urges Parliament to amend and pass this legislation without delay.

I thank you for your attention. I welcome, also, all your questions.

[The Chair, Conservative, Art Hanger]

I call the Standing Committee on Justice and Human Rights meeting to order. Of course, on the orders of the day, the topic of discussion and debate here is Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment).

We have a good array of witnesses to testify before us today. Given the fact that there are three of you representing three different organizations, I would ask the witnesses, first, to be sure to put your points forward in short order so the members here will have an opportunity to question you. That's our regular process. The time is going to be broken down into seven or eight minutes for the first round, and then it diminishes thereafter.

I will go according to the order in which the witnesses are listed on my sheet. The Canadian Police Association, Mr. Tony Cannavino, president....

I understand, Mr. Cannavino, you're accompanied by David Griffin.