Evidence of meeting #7 for Bill C-2 (39th Parliament, 2nd Session) in the 39th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was offenders.
A recording is available from Parliament.
November 15th, 2007 / 9:25 a.m.
Conservative
The Chair Conservative Rick Dykstra
Now that the amendment has been defeated, I would move to Mr. Ménard's original motion, that the Department of Justice be asked to table all available legal opinions relating to the constitutionality of Bill C-2.
There will be a recorded vote.
(Motion negatived: nays 6; yeas 5)
NDP
Conservative
The Chair Conservative Rick Dykstra
Mr. Keddy was allowed to vote. He was not allowed to vote in the first round of voting on the amendment. He had not submitted his papers with respect to substituting to the committee. But by the time we had our second motion to vote on Mr. Menard's original motion, he had substituted back into the committee. So his vote is official.
Mr. Landreville, we welcome you to, as you can see, a very energetic and focused committee. Some may say strongly opinionated. I would say otherwise.
I would like just quickly to let you know that you have 10 minutes for your opening remarks. We'll then turn to the committee, and the first round of questioning will be seven minutes. Each party will have the opportunity to question you for seven minutes. The rounds following the first round will be five minutes in length. We might go a little bit further than 10 o'clock, but we're going to try to get at least 35 to 40 minutes of questioning in.
I appreciate your coming this morning on short notice, because the committee was struck fairly quickly and witness lists put together fairly quickly. We certainly appreciate your being here this morning.
I'll turn the floor over to you.
Pierre Landreville Emeritus Professor, School of Criminology, Montreal University, As an Individual
Thank you, Mr. Chairman. I would like to thank committee members for allowing me to express my viewpoint on Bill C-2.
I am professor emeritus at the University of Montreal School of Criminology and a Research Associate at the International Centre for Comparative Criminology, the ICCC. I have taught penology and correctional policy since 1970 and have conducted research in those fields for more than 40 years.
My brief will focus on the section of Bill C-2 concerning Bill C-27. I would address two points regarding the bill in succession: first, clauses 40 to 51 concerning dangerous offenders and, two, clauses 52 and 53 on the recognizance to keep the peace.
I will start with the issue of dangerous offenders. The purpose of this part of the bill is to create a measure to neutralize multiple re-offenders. This is not a new concern. In 1908, England passed the Prevention of Crime Act respecting habitual criminals.
In 1947, Canada also passed an Act respecting habitual offenders or “habitual criminals”, which is very much based on the English act which had already been repealed. An offender determined to be a “habitual criminal” could be detained for indeterminate period. The Criminal Code provided that:
[...] an accused is a habitual criminal, a) if, since reaching the age of 18, he has previously, or on at least three separate and independent occasions, been convicted of an indictable offence for which he was liable to a term of imprisonment five years or more and continues to lead a criminal life, [...]
Clauses 40 to 51 of Bill C-2 are also similar to a more recent series of acts, passed in the United States in the early 1990s, commonly called “three strikes” laws, the best known and most used of which is that of California, which was passed in 1994. It is in fact a two—and three-strike Act. Briefly stated, it provides that, in the event of a second felony conviction, the sentence is twice the sentence that would have been imposed for that offence and that for a third felony conviction, the sentence is 25 years to life. On March 31, 2007, 41,503 offenders were imprisoned under that act. Over 90% of all convictions under the “three strikes” laws in the United States have been in California.
Habitual criminal legislation has failed for five reasons: first, it does not distinguish between those offenders who present a real threat to society, since it applies to a considerable number of non-dangerous offenders; second, it is not applied uniformly, thus causing serious fairness problems; three, it applies in a discriminatory fashion against minority groups; four, it has no significant impact on crime; and, five, it can result in a considerable increase in the prison population, particularly the population of older offenders.
Let me reiterate the first point. It does not distinguish between those offenders who present a real threat to society, since it applies to a considerable number of non-dangerous offenders.
In Canada, the Ouimet Committee (1969) examined the cases of 80 “habitual criminals” sentenced to “preventive detention” in penitentiaries in February 1968.
The committee first observed that:
The average age of the 80 offenders at the time they were sentenced to preventive detention was 40 years.
They concluded on this point that:
These figures tend to support the finding that one of the weaknesses of the application of this legislation is that it appears to be most often invoked against offenders at an age where violence is no longer part of their usual behaviour.
The committee also stated that:
Nearly 40 % of those sentenced to preventive detention appear not to have presented a threat to the safety of others; 2. Perhaps one-third of persons incarcerated as habitual criminals appear to have presented a serious threat to the safety of others [...] The Committee finds that, although the statutory provisions concerning habitual criminals were enforced to protect the public from certain dangerous offenders, they were also applied to a considerable number of multiple repeat offenders who may constitute a serious social embarrassment, but not a serious threat to people's safety.
Similar observations have been made about England's preventive detention and California's “three strikes” legislation.
Moving on to the second point, it is not applied uniformly, thus causing serious fairness problems. Once again, in Canada, the Ouimet Committee found in its study on 80 “habitual criminals” that:
45 [...] were sentenced in British Columbia and 39, that is virtually half the total number of those so sentenced, in the same city (Vancouver). The Committee feels that legislation the application of which is likely to vary to that degree should not be part of a rational correctional system.
The committee also observed the same disparity in the application of the dangerous sex offender law which existed at the time. Current dangerous offender legislation may also deserve the same criticism. In April 2006, 42% of criminals found to be dangerous offenders were in Ontario, compared to 9% in Quebec and 22% in British Columbia. California's “three strikes” legislation is not evenly applied either.
Moving on to the third point, it applies in a discriminatory fashion against minority groups. In Canada, we have no data on the application of habitual offender legislation to aboriginal persons, but we do know that they are over-represented at all stages of the correctional process, including in the application of the dangerous offender law. This state of affairs raises major issues and is of concern to all those who attach importance to the values of justice and equity. We know that aboriginal persons represent approximately 3% of the Canadian population, that they form 18% of persons admitted to penitentiaries, that they are even more over-represented in certain provinces. In 2003-2004, they represented 54% of persons admitted to Manitoba penitentiaries, and 63% of those admitted in Saskatchewan. Aboriginal persons also represented, in 2005-2006, 23% of offenders sentenced to life imprisonment or given indeterminate sentences. This over-representation of aboriginal persons in penitentiaries, combined with the fact that they enter penitentiaries at a younger age than non-aboriginals, means that they would be even more often affected by the measures under Bill C-2 concerning multiple re-offenders. It will be readily understood that the younger members of a group are when they enter a penitentiary, the greater chance they have of being convicted a third time.
Now, turning to the fourth point, this legislation has no significant impact on crime. Since they are rarely enforced in ordinary circumstances, habitual criminal laws cannot have an impact on crime. However, even where they are used on a broad scale, as in California, they have little or no measurable impact. Even though, in the 1990s, the crime rate fell more sharply in California than the U.S. national average, researchers who conducted a survey of the literature came to the conclusion that the drop cannot be attributed in any significant way to the “three strikes” law.
That takes us to the fifth point. This legislation can result in a considerable increase in the prison population, particularly the population of older offenders. If applied on a broad scale, multiple re-offender laws inevitably cause an increase in the aging of the prison population. On the one hand, longer sentences result in a rise in the prison population...
Conservative
The Chair Conservative Rick Dykstra
Mr. Landreville, I'll ask you to wrap up in about 15 or 20 seconds. We're just over the 10-minute mark.
Emeritus Professor, School of Criminology, Montreal University, As an Individual
As regards recognizance to keep the peace, the bill sets out four new conditions: that the defendant participate in a treatment program; that the defendant wear an electronic monitoring device; that the defendant return to and remain at his or her place of residence at times specified in the recognizance; and that the defendant appear before correctional authorities.
While these provisions may seem warranted in certain cases for convicted offenders, we consider them excessive for individuals who have been convicted of no offence.
Thank you very much.
Conservative
The Chair Conservative Rick Dykstra
Thank you, Mr. Landreville.
Mr. Bagnell, you have the first seven minutes.
Liberal
Larry Bagnell Liberal Yukon, YT
Thank you.
I understand that what you have said suggests that this law would treat aboriginal people in Canada in heavier quantities, probably, than they are in the population, as they already are in the prison system.
In the California experience, are the other ethnic races overrepresented compared with the general population—first of all in the criminal justice system; but second of all, is there even worse overrepresentation at the dangerous offenders level?
Emeritus Professor, School of Criminology, Montreal University, As an Individual
Yes. In most countries, ethnic minorities—or racial minorities in certain cases—are over represented in the prison population. In the United States in particular, we know that blacks are over represented in the prison population, as they are among people convicted under the “ three strikes law”. In California, for example, Afro-Americans make up 28% of inmates in prisons, but they make up 34% of people convicted after two strikes and 44% after three strikes. In California, they truly are harder hit, generally speaking, by incarceration, but even more so under the two strikes and three strikes principle.
Liberal
Larry Bagnell Liberal Yukon, YT
My understanding of what you said is that the law in England is for offences that are punishable by five years, whereas here I think it's two years. Would this make it such that this law would catch even more people who are less dangerous, more people who are not dangerous, and that more minor offences would be caught by this law in Canada than even by the English law, which is for offences for which the penalty is five years?
Emeritus Professor, School of Criminology, Montreal University, As an Individual
I did not reference British law directly, and I do not fully understand your question.
Liberal
Larry Bagnell Liberal Yukon, YT
I'm sorry. I thought you had made reference to it at the beginning.
I have another question, then.
I think the minister would argue that the judge has discretion; he doesn't have to give an indeterminate sentence, but it does have to be based on the evidence of the trial. For you, does this make this law acceptable? The judge still has the same discretion and could actually give nothing extra for a dangerous offender, if he felt that was appropriate.
Emeritus Professor, School of Criminology, Montreal University, As an Individual
In actual fact, as regards sentencing, judges currently have rather broad discretionary power. The same is true for the Crown, and you realize that despite or because of this discretionary power—which I would not want to discuss—aboriginals are over represented at all stages of the correctional system. The same is true in terms of parole. Parole board members have discretionary power to release aboriginal persons, yet they are released on parole less frequently than non-aboriginal inmates.
In this case, two reasons explain why aboriginal persons are—and I would assume that they still are—over represented. On the one hand, they are incarcerated more frequently than non-aboriginals. The probability of their being incarcerated for second or third times is therefore higher, all the more so since they are incarcerated at a much younger age than non-aboriginals are. For example, 25% of aboriginal persons entered penitentiaries when they were under the age of 25. In fact, there are many more aboriginals in the segment of the population under the age of 25 than there are non-aboriginals. I am not saying this is due to decisions made by certain people: the problem is systemic.
Liberal
Larry Bagnell Liberal Yukon, YT
I know you weren't finished your remarks. If there's anything else you want to say, you can use my last two minutes, or you can tell me whether the crime level is higher in states where they don't have a law like this, unlike California—where they don't have three-strike legislation.
Emeritus Professor, School of Criminology, Montreal University, As an Individual
As a matter of fact, both the incarceration rate and the crime rate in the United States vary a great deal from one state to another. About 25 or 30 states—I do not know the exact number—use “three strikes laws”, but there is no relationship between that use and the fact that the crime rate has decreased or not. In the United States as in Canada, moreover, crime rates have decreased considerably since 1990-1991, but the decrease is not at all linked to the “three strikes” or to incarceration. That is a very important fact.
A very enlightening comparison can be made. In United States, violent and non violent crime rates have decreased significantly since 1990. The same is true in Canada. Studies have showed that the decrease followed the same curve, in other words, the percentage was more less the same. However, in the United States from 1970 to date, the incarceration rate has gone from 215 to 750, which is not the case in Canada, where the incarceration rate remained quite stable over that period. It varied only from 10 to 15 out of every 100,000 inhabitants. Consequently, incarceration cannot, generally speaking, be considered responsible for reducing crime rates in United States. In fact, Canada experienced the same type of decrease without an increase in the incarceration rate.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chairman.
Mr. Landreville, I am pleased to participate in this exchange with you. In recent years, I have heard many good things about you from professors at the Université de Montréal like André Jodoin and others. They praised your learnedness. I regret your having to witness this demonstration of authority by the government, but rest assured, the opposition is keeping an eye open for problems.
Having said that, I think you did a very good job of clarifying—
Mr. Chairman, I would like to be able to live my life as I see fit.
Conservative
The Chair Conservative Rick Dykstra
Mr. Ménard, there's a lot of latitude here for discussion, but let's try to stay focused on Bill C-2 versus your opinions on the government. Thank you.
Bloc
Réal Ménard Bloc Hochelaga, QC
As for you, Mr. Chairman, you are not authoritarian.
Mr. Landreville, I was in the process of paying tribute to your learnedness. What really pleased me was the link that you very clearly identified. You compared American society, which has relied on incarceration and has crime rates that have not declined as a result, and Canada. You did not provide statistics per 100,000 inhabitants for Canada, but we have heard that it ranges from 115 to 123.
I would like you to explain yourself very clearly. If I understand correctly, you are inviting us to reject Bill C-2. Based on my understanding, you say that it is not effective in terms of its objectives. I would like you to tell us more clearly why it is not effective and what legislative measures you would like to see adopted so that we can meet those objectives, in other words, making communities safer, while keeping in mind that the violent crime rate is not on the rise.
Emeritus Professor, School of Criminology, Montreal University, As an Individual
In terms of drawing comparisons between the United States and Canada, the situation is truly ideal. We live in the same environment, everyone knows that. Our socio-political and economic environments are the same. We clearly have different crime rates. In the United States, crime rates are generally higher. On our side, our incarceration practices have been quite different since 1970.
I am going to give you some more statistics. In 1970, the prison population in the United States was almost twice as high as ours. At present, it is more than seven times higher than ours. Our prison population is 105 for 100,000 inhabitants, whereas it is 750 in the United States. The Americans have a much stricter incarceration policy that cannot be considered responsible for reducing the crime rate. Other sociological factors, including demographics and economic growth, are the cause. They are important factors.
As regards special legislation, I said earlier that in the United States, about 25 or 30 states have been using “three strikes” laws since 1993 or 1994. Most states make little use of these laws. In fact, 90% of people convicted were in California, where that type of legislation is used very widely. More than 40,000 people, in other words, more than the entire prison population in Canada, are incarcerated there. Studies have not really shown that these laws have had a significant effect.
There was a second part to your question.
Bloc
Réal Ménard Bloc Hochelaga, QC
Indeed. The major issue with which were are struggling on this committee is that nobody seems able to tell us exactly what it is that is not working with our current system of offender designation. Our researchers tell us that 333 people have been designated as being dangerous offenders. We are trying to determine whether there are arguments to support an automatic reversal of the burden of proof. As a highly esteemed, moderate and centrist intellectual, are you aware of particular problems with the current system for designating dangerous offenders?
Emeritus Professor, School of Criminology, Montreal University, As an Individual
As I said, the special legislation on dangerous offenders is ineffective because it is difficult to pinpoint which offenders will end up causing serious harm to others. When I say special legislation, I am thinking of the time when Canada had both legislation on habitual offenders and legislation on dangerous sexual offenders.
Part of the problem is that we do not know exactly whom we should target. Furthermore, when very harsh legislation is introduced, such as the act providing for indeterminate sentences, there is sometimes resistance within the criminal justice system itself to using them. That explains, to a degree, the huge disparity and the way different provinces apply such legislation. The way it is applied essentially depends on the attorney general and certain prosecutors. It seems also true of California, where a single prosecutor is said to be responsible for a huge number of convictions.
To my mind, the current dangerous offenders legislation has its shortcomings. However, it is not widely applied, and I am glad of that. That being said, I believe that it is both flexible and stringent enough to pinpoint those multiple repeat offenders who are likely to commit serious crimes against persons in the future.
As a general rule, statistically speaking, these laws primarily affect people over 40. Indeed, most people who go to prison are over 30 years of age. By the time they get to their third conviction, especially if they are convicted of a violent offence, they will generally be over 40 years of age due to the length of time they will have spent serving their first two sentences. Yet the vast majority of these offenders do not commit violent crimes after the age of 40.
I therefore believe that the current legislation is both flexible enough and stringent enough to deal with those exceptional cases where prosecutors and specialists have reasonable grounds to believe that an offender will commit a serious crime.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
Thank you for being here, professor Landreville.
I am going to ask my questions in English. I would prefer to ask them in French, but I want to make sure that I express myself accurately.
You described the regional disparity between British Columbia and the two central provinces. Do we see disparity in any of the other prairie provinces, in the western provinces?
Emeritus Professor, School of Criminology, Montreal University, As an Individual
My remarks actually concerned three pieces of legislation. 80% of the cases decided under the former habitual offenders legislation were in the Vancouver region. There has also been disparity in how the dangerous offenders legislation has been applied; nowadays, it is primarily used in Ontario. I can get you some statistics to back that up. I said earlier that 40% of all dangerous offenders are designated as such in Ontario, but only 9% are designated as such in Quebec.
I also have figures on the other provinces. 403 criminals have been designated as being dangerous offenders since 1978, 168 in Ontario, 90 in British Columbia, 31 in Alberta and 29 in Saskatchewan. Obviously, we could calculate the percentages, but the important point is that Ontario has the most and Quebec the least.