Thank you, Mr. Chairman.
I move that clause 34 be amended by replacing line 8 on page 19 with the following:
742.3, if exceptional circumstances exist that justify the service of the sentence in the community or if
Standing alone, that may not make much sense, so let me just try to very quickly explain the rationale.
The whole approach here is to permit the sentencing judge to consider the imposition of a conditional sentence order, notwithstanding the restrictions in exceptional circumstances. The rationale for that is that by removing the possibility of a conditional sentence for so many types of offenders, it is expected that the judge may move towards what might be called the least severe sentence, whenever possible. Now, if a conditional sentence is no longer available, the judge may consider suspended sentences followed by a period of probation if incarceration is inappropriate. But in many cases, neither a suspended sentence nor a system of incarceration is appropriate.
To sum it up, judges, defence lawyers, and crown counsel may well face situations where a more reasonable and just result is simply unavailable. Now, given what might be called legislative creep and the erosion of conditional sentences, first in Bill C-9 and now in this bill, I am proposing—this is a recommendation that was made as well by the Canadian Bar Association and indeed is based upon their recommendation—that consideration be given to including safety-valve provisions, because in effect Bill C-10.... This is a specific case study that restricts and limits judicial discretion on sentencing. But that discretion has formed a fundamental part of our criminal justice system.
The U.S. experience with mandatory sentencing guidelines resulted there in a dramatic transfer of power from the judiciary to the prosecution service, which they are revisiting and reconsidering and are indeed moving away from as a result, in particular, of the U.S. Sentencing Commission report of just a week ago.
To sum up, Mr. Chairman, conditional sentences in Canada would give judges the capacity to shape sentences, based on their experience and the collective experience of other judges, for specific offenders who are convicted of specific offences. Any further limitations on that judicial discretion, regrettably, will tread too deeply into the important role judicial review plays with regard to the specificity of the offence, the specificity of the offender involved, and the ability to exercise that discretion appropriately, having regard for all the circumstances.
