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.

Criminal Code

[Sue Barnes, Liberal, London West, ON]

Mr. Speaker, it would be a lot easier if the government chose to do this after first reading. It clearly has that right. Because the Liberal government had a bill that would have tightened up some sections, Liberals believe parts of the bill have validity and we will take it to committee.

My suggestion is to deal with it properly in committee. We have probably less than three and a half weeks left in the House. The justice committee currently has business before it. When the House reconvenes in the fall, there will be ample time for the parties affected to do a lot of work for the government to put together its case properly.

I will not speak on behalf of everybody in my caucus, but at this point in time, as the justice critic, I personally intend to send it to committee so further work can be done. However, I will not accept the bill in its full form. I do not believe, for instance, that non-violent offences should be part of the bill.

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

Mr. Speaker, I hope that my colleague from London West will stay with us just a few moments more. I am pleased to speak in this House and I would like my colleague to know that over the past 26 years, I have been a legal aid lawyer as well as defence counsel in criminal law for the last 10 years. As a criminal lawyer, I regularly argued cases in court, trying to convince the court to accept my arguments. I will attempt the same here, Mr. Speaker. If I slip up, as I probably will, and call you “Your Honour”, please forgive me. I hope that my argument—and I believe it will indeed be an argument—will enable us to address this very important debate in the House today in an orderly manner, without the interference of court sanctions.

The Bloc Québécois finds it difficult to vote in favour of this bill. We will therefore vote against it, for a number of reasons I will explain. This is a very difficult bill that reduces the number of options available to the court when sentencing a person.

I have with me the bible that I kept with me every day I argued a case in court a while ago. I keep up to date on what is going on in criminal law, so I hope you will permit me to read section 718 of the Criminal Code. This section is clear about the objectives of sentencing, which are:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harmcom done to victims or to the munity; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The objectives and principles that a judge must be guided by during sentencing are clear. The judge must individualize the sentence. The individual that appears before him must receive a sentence adapted to the crime committed. This is not what Bill C-9 proposes. The bill would increase the length of imprisonment for dozens, possibly around one hundred new offences. One example comes immediately to mind. Someone charged with impaired driving causing bodily harm can be sentenced to a maximum of 10 years. Under Bill C-9, a prison sentence would automatically be imposed. This is unacceptable.

If my colleagues across the floor listen to my entire speech--and the brilliant interpretation being provided--they will understand that such a sentence is unacceptable for several reasons. First of all, in a number of major decisions, the Supreme Court has stated that the primary principle that must apply during sentencing is that of individualized sentencing. That would be lost with this bill. In fact, Bill C-9 would put an end to individualized sentencing.

I would go even further. Not long ago, the Supreme Court had to rule on conditional sentences. If the members across from me are listening carefully, they will recognize a decision handed down by the Supreme Court in 2000. It was a landmark decision that has been continuously applied by the courts ever since. It very clearly explains the criteria that must guide the court when it is about to impose a conditional sentence.

It should be noted that conditional sentencing is neither a policy nor an obligation. It is an additional power the court has when handing down a sentence. It is part of the wide range of sentencing possibilities the court has when it is judging an individual or handing down a ruling that will have a clear impact on an individual's life, family and associates.

The members opposite should listen carefully to what I am about to say. Everyone knows that a Supreme Court ruling is quite serious.

In R v. Proulx, the court said that:

—the provisions on conditional sentencing were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. A conditional sentence should be distinguished from probationary measures.

Probationary measures are sentencing measures with probation.

Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

That is the intention.

—conditional sentences should generally include punitive restriction of the offender's liberty. Condition such as house arrest should be the norm, not the exception.

Having been a litigator and defended clients in all sorts of cases, I can assure you that a sentence of detention in one's own place of residence is quite often more restrictive than a sentence of detention in a penitentiary or a provincial prison. For example, when an individual receives a conditional sentence, he generally receives calls at all hours of the day and night to check whether he is home. I will come back to that in a few moments. What is more, he is monitored regularly by the court.

That is what the Supreme Court had to say about it, again in Proulx, a very important case that my colleagues opposite and the hon. Minister of Justice have read. The Minister of Justice was Manitoba's Attorney General. I would be glad to discuss this case with the hon. Minister of Justice in this House. We talked about it last year, the hon. Minister of Justice and I, when we were both on the justice committee.

The Proulx decision states:

—the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.

The Court must ask itself this question.

—a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.

So said the ruling by the honourable justices of the Supreme Court. Generally, what this means—I have experienced this myself and my colleague the hon. Minister of Justice may perhaps also confirm it since this occurred in the province of Manitoba—is that the court first asks itself whether or not the individual is eligible. If a sentence of incarceration is required, then the answer is yes. The court then decides that the offence committed involves and requires incarceration. Then it asks itself if the incarceration must be served in a penal institution or if the individual may serve the sentence at home or elsewhere. It is at that point that it must pose the question.

Usually, the judge considers that the offence deserves a sentence of three years or 30 months; however, if he wishes the offender or the accused to serve the sentence in the community, he lowers it to two years less a day.

The Supreme Court ruling states, and I quote, “Two factors should be taken into account: (1) the risk of the offender re-offending;” This first factor bears the number (1). It is followed by factor number (2). I have never seen (2) precede (1). Thus, the first question that the court asks itself is whether or not there is a risk of the accused re-offending.

I continue to quote, “(2) the gravity of the damage that could ensue in the event of re-offence”. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals

The Supreme Court went so far as to state and repeat—and I will repeat here in this chamber— that there is an inviolable principle in our criminal law and that principle is the individualization of sentences.

This is not what the hon. Minister of Justice has in mind in introducing Bill C-9. I took a quick look at the crimes covered by this bill. There are about 100 in total, and all are punishable by 10 years in prison.

The case that comes to mind and the one I had argued, as I mentioned earlier, was impaired driving causing bodily harm. Under this bill, the judge will have no choice but to impose a sentence of imprisonment of more than two years, and that is extremely dangerous.

The Proulx decision is very important. I read it through, and I would again invite the hon. Minister of Justice to carefully reread this important decision. Here is another excerpt from the decision:

The [conditional] sentence imposed by a trial judge is entitled to considerable deference from appellate courts...Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Today, we are faced with an extremely important societal debate. The debate over Bill C-9 is a societal debate. This bill will be a catalogue of prison sentences. The crimes will be in the catalogue and will be punished accordingly. This is not what the Supreme Court intended. The Supreme Court, and society in general, want individualized sentences that take into account the individual's character, the risk of reoffending and the seriousness of the crime.

When these distinctions are made, then we must look at how the court will punish the individual.

Clearly, Bill C-9 is a move toward punitive justice, not rehabilitative justice. Today, sentences must be individualized. The Bloc Québécois believes in rehabilitative sentences much more than repressive sentences. Bill C-9 will create repressive sentences.

It is true that crime has increased in some major cities.

For the first time, however, since the introduction of conditional prison sentences in 1996, Statistics Canada did a study in 2003-2004, which showed that the total number of offenders liable to a new conditional sentence order had decreased, falling from 19,200 to 18,900, a decline of about 2%. Still, we must pay attention. In spite of this decrease from the previous year, the same study reveals that conditional sentences have a major effect on the rate of new detentions, which has decreased by 13% since the introduction of conditional sentences. As a result of this measure, some 55,000 fewer offenders were sent to prison.

With all due respect for the hon. Minister of Justice in this House, he cannot contradict this. Last year, he sat on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness as the Conservative opposition critic. When he tried to table this same bill, I asked him to provide us with figures showing that the crime rate had increased since conditional sentences began to be given. It was not so; the number of offenders had decreased.

I will go a bit further. This is a rather special sentence. The administration of these sentences, especially conditional ones, falls within provincial jurisdiction because they are sentences of two years less a day. So what will happen if this bill comes into effect? There will be an increase in prison sentences. And who handles sentences of two years less a day, to use the legal jargon? It is the provinces. It is obvious then that passing this bill will entail additional costs, an increase in the financial burden of the provinces. There are two problems. One, sentences are no longer individualized. Two, we switch from the possibility of rehabilitation to repression. Thus, we increase the financial burden of the provinces, which will have to deal with these prison sentences.

I will add something else. Bill C-9 implies the building of more prisons. It seems, however, that on an individual basis (the figures confirm this) it is much more costly to keep offenders in prison than to keep them under supervision in the community. We now have figures to support this. In 2002-03, the average annual cost for a prisoner in a provincial institution was $51,450, compared to $1,792 for supervision of an offender in the community.

I would still have lots to say, but I see that I have less than a minute left. So I will say this. We must at all costs avoid having this bill send the wrong signal. I understand the intention of the Minister of Justice to send a clear signal. With all due respect, I nevertheless think that this is not the right message.

We could send guidelines to the judges. Perhaps not enough prison sentences are given for different crimes. The appeal courts are there, however, to rectify what might be a “bad” decision or a decision that does not comply with the criteria of the Supreme Court.

The evidence may be seen in many cases. Mr. Brault has just been sentenced, and we have just seen that there are other sentences. In fact, the Court of Appeal of Quebec has just declared itself in favour of the fulfillment of prison sentences, when such sentences should have been handed down in the first instance.

Let our courts and judges do their job. They are quite capable. Let us give them some clearer guidelines, though.

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

Mr. Speaker, consultations have taken place among the parties and I believe you would find unanimous consent for the following motion. I move:

That the Minister of Justice be deemed not to have spoken to the second reading motion of Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment).

[The Acting Speaker, Royal Galipeau]

Does the hon. parliamentary secretary have the unanimous consent of the House to move the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Royal Galipeau]

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Acting Speaker, Royal Galipeau]

(Motion agreed to)

[Pierre Paquette, Bloc, Joliette, QC]

Mr. Speaker, I would first like to congratulate my colleague on his speech.

I was told that Bill C-9 was relatively complex and technical. From what my colleague says, the issues of the bill are very clear. I would like to speak to them, because he has made it clear.

The government is denying the judiciary the option of conditional sentencing: it is creating an arbitrary list of crimes that will automatically result in prison terms.

As my colleague put it so well, they are increasing punishment with little thought to rehabilitation. A society's prime objective should be to ensure the security of its citizens. We in the Bloc Québécois support this objective.

The government is also going to allocate more resources to this repressive system. The provinces will be obliged to invest more in building prisons. This, too, will be to the detriment of prevention.

Perhaps I could suggest to my colleague that there is a certain view of society behind Bill C-9? It is not unlike that of the current administration of the United States. According to this vision, security is achieved less by social programs, the fight against poverty and the creation of jobs than by repression, the construction of prisons and the establishment of police forces. In addition, the Conservative government is not only adopting this model for itself, but it is turning it into an instrument of partisan politics. The announcement of harsher sentences may appear very simple to the public, whose feeling of insecurity, however, is not supported by statistics, as my colleague pointed out.

So this is a sort of right-wing populism that spells extreme danger for the future of Canadian and Quebec democracy. I would therefore like to hear my colleague's comments in this regard.

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

Mr. Speaker, at the outset, I would like to say that I agree with the hon. member for Joliette.

As a legal aid lawyer having always argued for the defence, thereby coming into closer contact with citizens experiencing difficulties—the underprivileged—I have always sought, and I shall always seek individualization in sentencing. This seems to me to be essential. But that is not what this bill seeks to achieve. I think it focuses on the wrong message, and that it sends a very unclear message.

The legal community is deeply concerned about this. I attended the Conference of the Quebec Bar just two weeks ago.

I think that judges are doing exceptional work. Their job is to sentence individuals. They do not want to punch 742.1 into a computer that will spit out an eight-year prison sentence for the accused.

We must preserve the principle of individualization, but we must above all respect the goal to rehabilitate the individual, who will one day go back into society. Excuse me, Your Honour, but as I said to the judge, when my client re-enters society, will he be ready for it? If he is locked up for 10 years, he will not be.

My apologies for having given you a raise, Mr. Speaker. However, I must tell you that we must not do this. What we should do is provide the courts with guidelines acknowledging that sentences may not be severe enough, but that appeal courts exist to rectify them. Our job is to work on rehabilitation and to fight poverty, for what is crime? People commit crimes when they have a problem; our society is not full of psychopaths.

[Ron Cannan, Conservative, Kelowna—Lake Country, BC]

Mr. Speaker, I have some real concerns about the statistics in the member's presentation. It is easy to quote information and state data that might skew the information for the public. The latest national data showed that overall crime in 2004 dropped by 1%, but the murder rate jumped by 12% from the year before. We do not have to ask anybody in Toronto about that problem. It was particularly acute last summer when 52 people died as a result of gun violence.

I believe this is well thought out legislation with improvements to our sentencing laws that will ensure courts hand down meaningful sentences for firearms offences.

The member opposite made reference to house arrest. He said that conditional sentences were tougher than having to serve time in prison. I want him to realize that this proposal does not solve all justice problems in Canada, but it is a step in the right direction.

To clarify, I think the hon. member is stating that people would prefer to serve time in their homes, with luxuries such as watching their TVs and having privileges of freedom, rather than spending time in prison. He believes this is more reflective of the desires of Canadians rather than getting tough on crime.

On May 5 the Winnipeg Sun stated that this was the right message. He has said that it is the wrong message. The Ottawa Sun has stated “Hard line is the right idea”.

Could the member clarify his reference to the leniency and jail time versus house arrest?

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

Mr. Speaker, I can give my colleague the following very simple answer. My colleague has just provided the evidence that this is the wrong message. Yes, there may have been a rise in the number of homicides, but that is not what Bill C-9 is about. With all due respect for my colleague, Bill C-9 is about sentences of less than 10 years. Someone who is convicted of homicide is given life in prison, depending, of course, on whether it was manslaughter. In the situation we are addressing, Bill C-9 does not address that kind of crime. That is what I was saying.

I would also add that for nearly a decade, from 1996 to 2004, I had the opportunity to argue, and to become familiar with, a lot of cases, and I have seen my clients trying to deal with conditional sentences of imprisonment. I can tell my colleague that at present, someone who does not comply with each and every one of the conditions of his or her release or conditional sentence will be returned to prison and will serve the entire remainder of the sentence without possibility of parole. That is a considerable hardship.

I would therefore advise my colleague to be careful about some of the things being said. We have to look at the numbers. I would also say that conditional sentences of imprisonment are often very difficult to serve. Sometimes, I even told my clients to reject the Crown’s offer of a conditional sentence because they would be unable to comply with the conditions. Just try abiding by an order that you abstain from consuming alcohol at home—give me a call if it works. For example, I told one of my alcoholic clients who was being sent home under a conditional sentence with an order that he abstain from drinking that it would be preferable not to agree to it, and to serve his time.

What I said, and I will reiterate, is that we must continue to tailor sentences to the individual, and not switch into a repressive mode, which is what Bill C-9 is preparing to do.

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

Mr. Speaker, I rise today to speak to Bill C-9, which has been referred to as the amendment to conditional sentencing. It is important to appreciate some of the historical background behind this and why attention has been paid to this form of sentencing.

The original provision for conditional sentencing is relatively new to our criminal justice system, being only a little over nine years old. At the time it was introduced, it was a clear attempt on the part of the government of the day to reduce our prison population so individuals were not incarcerated for crimes that could have been better dealt with through rehabilitation, expression of denunciation by the state and justice for the victims. This would justify the use of conditional sentences as opposed to incarceration.

Conditional sentencing was used fairly slowly for the first few years. By the end of 2004, conditional sentences were being used across the land approximately 15,500 times. That meant fewer people were being incarcerated. The provision of the section is such that it is only used, whether it is now or subsequent to the proposed amendment, when the judge decides that the person in all other circumstances will be sent to prison. In these circumstances it would be better, for the reasons I have already mentioned, for the person to remain in restricted custody, but outside of full incarceration.

It is important to appreciate what has happened. Particularly in the last few years we have read on the front pages of our newspapers or heard on the national news cases involving criminals who were convicted of serious, violent crimes but were given conditional sentences. I do not know how many times this has occurred nor does the government. Some cases received substantial media notoriety. When these were investigated, extraneous circumstances justified the use of conditional sentences. However, this flew in the face of the original intent of conditional sentences, which were for non-violent crimes, not those that resulted in serious injury to victims.

A consensus built within the legal community and the legislators in the House that this issue had to be revisited. We had to address the point of when it was appropriate to use conditional sentences. If there were cases when it was inappropriate to use conditional sentences, we had to see if amendments could made to the section that would prohibit judges from using them.

The former government brought forward a bill toward the end of the last Parliament that attempted to address the issue. It reflected, to some degree, some consensus that had been built by all four parties. It did not get to second reading and died after the election was called.

This bill has taken a significantly different and more punitive approach to the issue of conditional sentences. The most important part is to look at the provisions of the section. It basically states that conditional sentences would be unable to be used in cases of a crime that had maximum penalties of 10 years or more.

We have to appreciate as well the impact of the amendment. If it were to go through, and I am cautiously optimistic that it will not in its present form, all these sentences would be served in provincial jails, not in the federal system. One of the other provisions already in the section is that it is not used unless the sentence to be imposed is two years less a day. If it is two years less a day, the person would spend the time in a provincial jail. All the individuals sentenced under this would be individuals who would normally end up in our provincial jails.

It is quite a lengthy list of where it would be prohibited to use this section. Forty-two sections of the Criminal Code have maximum terms of 10 years or more so conditional sentences could no longer be used. The difficulty I and my party have with this is a number of these sections are for crimes that are not of a violent nature, where an individual victim would not be assaulted or injured in a minor or serious way. We would classify approximately 20 sections as property offences, some quite minor. We sometimes wonder why there is even the possibility that somebody would get 10 years or more for that kind of an offence.

The first on the list is property theft over $5,000. It does not take many pieces of electronic equipment stolen from a house or a retail store to amount to over $5,000. It could be a first offence, but a conditional sentence would not be considered for the individual.

I will go through them. We have cattle theft, theft or forgery of credit cards, unauthorized use of a computer, breaking and enter with intent to commit an indictable offence, being unlawfully in a dwelling house, house breaking and possession of instruments, disguise with intent and possession of stolen property over $5,000, theft from mail, bringing into Canada property obtained by crime, false pretense of property over $5,000, obtained credit by false pretense, forgery, utter forged documents, fraud over $5,000 where a testamentary document is altered, false prospectus, personation with intent, wilful mischief over $5,000, wilful mischief of other property and arson for fraudulent purposes.

There are about 20 offences, all of them property crime. We question why some would even have a maximum penalty of 10 years. Nobody ever gets that kind of a penalty for those kinds of crimes, but they are all included in Bill C-9. The effect of the bill is to exclude anybody convicted of one of those offences from being treated by way of a conditional sentence.

When I saw the bill, my initial reaction was this. Our Crown attorneys will take a look at it and will immediately make deals with defence counsel. Of the 15,500 cases each year, somewhere around 5,300 to 5,400, or one-third, will be excluded. The statistics I am giving are from the Department of Justice. I am not making these up.

One thing that could happen is that crown attorneys would plea bargain deals with defence counsel and some criminals would still get through in other ways. The parliamentary secretary mentioned that one way would be to allow for suspended sentences. I do not see that as a good alternative to dealing with this type of crime.

With suspended sentences, a judge has no ability to put restrictions on the person convicted. The judge basically decides not to proceed with a conviction and no penalties but if the person commits another crime and comes back before the court the judge can sentence the individual. That is how suspended sentences work. It is not a good alternative in terms of rehabilitation or an expression of denunciation from the state. It is not a good alternative to conditional sentences for that kind of crime.

However, we will get some of them out. I am guessing that at least 1,000 or so a year will be taken care of by some other kind of plea bargain but that still leaves 4,000-plus cases.

When officials from the Department of Justice came to me for a briefing I asked them what it would cost and, more important, what it would cost the provinces because all these sentences would be served at the provincial level. It costs about $125 a day to keep somebody incarcerated in our provincial system. It varies from province to province but that is a mean average. If we were to do the math, the operational cost for each convict who goes into the system would be in the range of $200 million to $250 million per day. All provinces will need to build additional cells to provide sufficient capacity to handle these prisoners.

It was interesting to hear the Minister of Public Safety say publicly that the money has not been specifically earmarked but that it has been set aside in the budget. This reflects the Conservatives' lack of understanding of what they are really getting themselves into. That money will be more than used when we get to the next bill, Bill C-10, on mandatory minimum sentences.

The Minister of Public Safety figures that the government will need about $250 million to $300 million. I think those were the figures he used. However that will be used up when we get to Bill C-10 and the number of additional people we will put into jails for longer periods of time at the federal level. Therefore, there really is no money in the budget. If the government is serious about getting both Bill C-9 and Bill C-10 through, there is no money for the provinces. All of that money, and a lot more quite frankly, will get used up in the federal system if Bill C-10, the mandatory minimums, gets through as it is presently drafted. I assume we will get to that bill some time later in the week.

The government has slapped this bill together in a slipshod manner more out of ideology and philosophy of how it would like to see society function than any reality of how it does. It brought forward this section and could not care less about what it will cost the provinces. After talking with some of the attorneys general, I know there has been no specific discussion of how much this will cost and no assurances or guarantees from the government that it will fund it. What it is doing is downloading this cost of its ideology onto the provinces.

We are not talking peanuts. We are talking operational dollars of $200 million to $250 million a year if this goes through and substantial additional capital. The best estimate I can give, since the government does not have one, is somewhere between $200 million and $500 million for the additional prison cells that will need to be built to accommodate the additional 4,000 to 4,500 prisoners at the provincial level.

The other negative byproduct of this approach to criminal justice by the government is that conditional sentences have been used in a significantly higher percentage among first nation peoples than it has for criminals in other sectors of society. I will give one example.

In Saskatchewan, where conditional sentencing has been used, and arguably more extensively than any place except the province of Quebec on a per capita basis, 64% of the conditional sentences are for individuals who come from the first nations, Métis and Inuit population.

A number of years ago the province of Saskatchewan, probably around the same time as the conditional sentences were working their way through, made the conscious decision to reduce its prison population and to specifically target first nations because first nations population members make up almost 80% of the prison population at the provincial level in Saskatchewan. It has had a significant impact in Saskatchewan of reducing that population, of keeping them in society, of keeping them in their communities and of rehabilitating them at a much more effective rate.

We all know, and no one in the House should delude themselves otherwise, that the longer someone is in prison the higher the rate of recidivism and the more people are kept our of prison the lower the rate of recidivism.

Saskatchewan is saying that it has a major problem. Is the province able to get around it? If it can, why are we bothering with this bill? The real possibility is that Saskatchewan will not plea bargain a little bit. It may plea bargain a lot.

We need to appreciate that the alternatives to probation and suspended sentences are nowhere near as effective as the tools we get from conditional sentencing. The judges have a much broader scope of the conditions that they can impose on the convicted criminal under this section than the authorities have under the probation provision or the judges have if they were to impose a suspended sentence.

We are doing one of two things here. We will either end up with more people in our provincial prisons, which means the provinces will carry that bill, and, as a result, our first nations people in particular will be targeted, or the same number will be kept out but under suspended sentence or maybe probation where they may receive a short sentence period and then a long probation period. However the tools we will now have under the suspended sentence provision or probation will be much less effective than under a conditional sentence.

We need to understand the history here. Judges had begun to use the conditional sentencing concept and in a number of cases they imposed conditions. We heard the Bloc member say that one of the conditions is the person could not consume alcohol in his or her own home. A number of provisions, such as that one, were challenged under the charter and the higher courts ruled that a judge did not have the authority because it was not provided for in the Criminal Code or other legislation.

What happened is that this provision was put in. The judges then said that they now had the tools and, in cooperation with the prosecutors, the police, the defence counsels and the criminal himself or herself, that they would develop a specific set of conditions applicable to that person to control his or her behaviour and make a serious attempt at rehabilitation.

One of the concerns I have with the government jumping ahead as it is right now is that there are no studies. I have checked throughout the private sector academia and there are no good studies on just how effective the conditional sentences have been. There is a fair amount of anecdotal that they have been and we know we have substantially reduced our prison population at the provincial level. It has been effective from that perspective which is one of the major things it was to do. However, on the rate of recidivism we do not have that and we should have that before we proceed with this legislation.

I believe all parties recognize that there are certain cases of serious violent crimes for which conditional sentences should not be available. My belief is that when the bill comes out of committee we will see that section amended to the degree where at least that will be covered. I believe the concerns we have heard from society will be addressed but we will not have to go any further and eliminate a tool that has been a very effective one for our judges and our prosecutors.

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

Mr. Speaker, people have honed in on various offences that are covered by Bill C-9. Some of the ones which members opposite have referred to as being less serious are break and enter with intent to commit indictable offence and being unlawfully in a dwelling house. Those two provisions, at the discretion at the prosecutor, can be pursued by way of summary conviction or by way of indictment. If a prosecutor, in his or her discretion, were to decide to pursue them by way of summary conviction, a conditional sentence would still be available.

I take issue with the comment that theft over $5,000 and possession of stolen property over $5,000 are less serious. I think Canadians sent a pretty clear message that property crimes are crimes against people. There are victims to property crimes, not only the ones the government is targeting that deal with physical injury to a person, such as torture, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage taking, all these heinous crimes are covered by Bill C-9.

Is it not necessary to, not only on crimes that involve physically injuring another member of society but also on serious property crimes, send a message that Canadians no longer want to be victims of these crimes and that as a government we take them seriously, that we also take the principle of denunciation and deterrence seriously and that, in many cases, conditional sentences would be inappropriate even for serious property crimes?

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

Mr. Speaker, my house has been broken into on three different occasions over the last 15 years, so I do not need to be told by the parliamentary secretary how people feel as victims of crimes that are not an assault on the body. I understand what it is like to be a victim. I also understand how the system works.

If the crime is committed by a repeat offender that person is not going to be considered for conditional sentencing anyway because that repeat offender will be going down for longer than two years. That criminal will not even get through the initial screening. What the government is doing is allowing this section to be used in a scattered approach, depending on what a prosecutor wants to do in his or her area versus what is done in a neighbouring county or province. The federal government is responsible for criminal law. We need one pattern for the whole country, not mixed ones province by province or region by region.

This section leaves it open for abuse if we allow discretionary calls by prosecutors. Some will use the conditional sentencing quite extensively and others will try to avoid it. The ones who want to avoid it will simply lay the higher charges and get themselves out of the conditional sentencing provisions.

It comes back to using the tool effectively and as much as possible and recognizing that it not be used for serious violent offences. That is one of the things that really bothers me about the approach the government is taking to criminal law. It is running on anecdotes, on the odd case where a judge made a mistake. The government is trying to pass laws to take care of the few mistakes. If it does that, we are going to end up with many more ruined lives because more hardened criminals will come out of the system.

The United States has the highest prison population rate in a western democracy by far. It is six to seven times our prison population rate. The U.S. incarceration rate is running at about 700 per 100,000. Ours is at about 115 or 120 and most of western Europe is below 100. If it worked, the violent crime rate in the United States would be seven times lower than in western Europe and Canada. We all know that the violent crime rate in the United States is four to six times higher in spite of all that incarceration.

Incarceration is not the answer. We are trying to avoid recidivism. We are trying to rehabilitate and yes, we are trying to protect society. The greatest way to protect society is to make sure that the person who has committed one offence does not commit another one. Sending a person to prison is rarely the answer to guaranteeing that the person is not going to commit a crime again. My family and I would feel a lot safer if conditional sentencing was used rather than the alternative being proposed by the government.