Evidence of meeting #13 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was serious.
A recording is available from Parliament.
3:55 p.m.
Conservative
The Chair Conservative Art Hanger
The Standing Committee on Justice and Human Rights is now called to order.
On our agenda today, pursuant to the order of reference of Tuesday, June 6, 2006, is the debate of Bill C-9, an act to amend the Criminal Code on conditional sentence of imprisonment.
We have before the committee the Honourable Vic Toews, Minister of Justice. We also have Catherine Kane, who is the senior counsel with the Department of Justice and the director of the Policy Centre for Victim Issues.
Welcome.
3:55 p.m.
Conservative
The Chair Conservative Art Hanger
Just before we get into your presentation, Minister, would it be possible for you to extend your time before the committee, given the matter here? We have started a little late, so that would be advantageous.
3:55 p.m.
Conservative
3:55 p.m.
An hon. member
Indeed....
3:55 p.m.
Some hon. members
Oh, oh!
3:55 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Minister. Even an additional half hour would be advantageous.
3:55 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you.
If you would begin your presentation, then that would be fine, thank you.
3:55 p.m.
Conservative
Vic Toews Conservative Provencher, MB
Thank you very much, Mr. Chairman.
During the election campaign, our party made a firm commitment to protect families and Canada's way of life by cracking down on guns, gangs, and drugs. Since assuming office, we have taken leadership in tackling crime, with measures to strengthen communities and assist millions of ordinary, hard-working Canadians. It has been one of our five key priorities, along with helping Canadians get ahead by cutting taxes, including a cut in our GST, and introducing a real child care plan. Parents have already begun receiving child care cheques worth $1,200 a year for each child under six. We're also moving towards a patient wait times guarantee and restoring Canadians' faith in accountable, responsible government by introducing the most sweeping accountability measures in our country's history.
As Minister of Justice, I am pleased that we have followed through on our commitment to tackle crime with tough new measures. We are ensuring that criminals are no longer coddled, and the voices and rights of victims are respected. This is what Canadian families and taxpayers expect, and we are delivering results for them.
I am pleased to meet once again with the members of the justice committee, this time to discuss one of those strong new measures, Bill C-9, an act to amend the Criminal Code on conditional sentence of imprisonment.
As you know, a judge may impose a conditional sentence for house arrest provided that the sentencing judge finds that permitting the offender to do so would not endanger the safety of the community, and would be in accordance with the fundamental purpose and objectives of sentencing. The Criminal Code also forbids the use of this type of sentence where the offender was found guilty of an offence that is punishable by a minimum term of imprisonment, or where the offender was sentenced to a term of imprisonment of more than two years. Bill C-9 would add a fifth prerequisite that would prohibit conditional sentences, essentially house arrest, for offences punishable by ten years or more that are prosecuted by indictment.
As we had the opportunity to hear during second reading debate on this bill, the government's move to reform the conditional sentences is aimed at limiting those sentences to the cases for which they were originally intended to apply. Conditional sentences were never designed to be used for the most serious offenders, a point made repeatedly by members of the Liberal government of the day when they brought forward the concept of house arrest. This is why this government promised to prohibit the use of conditional sentences for serious crimes, including designated violent and sexual offences, weapons offences, major drug offences, crimes committed against children, and impaired driving causing bodily harm or death.
To quote from a paper entitled “The Conditional Sentence of Imprisonment: The Need for Amendment”, prepared in June 2003 by the Alberta justice minister and attorney general on behalf of British Columbia, Manitoba, Ontario, and Nova Scotia:
Allowing persons not dangerous to the community, who would otherwise be incarcerated, and who have not committed serious or violent crime, to serve their sentence in the community is beneficial. However, there comes a point where the very nature of the offence and the offender should result in actual incarceration. To do otherwise brings the entire conditional sentence regime, and hence the criminal justice system, into disrepute.
The options to reform the conditional sentence of imprisonment put forth in that paper included the implementation of a prohibition against the use of conditional sentences for serious crime.
I am aware that members of the opposition are concerned about the scope of Bill C-9. The ten-year maximum sentence threshold represents a clear and straightforward message that serious crime will result in serious time.
I am open, ladies and gentlemen, to considering reasonable amendments that will improve this bill and ensure its early passage. However, in shaping these amendments, we must take into consideration the commitment of this and previous governments that conditional sentences are not to be used with respect to serious crime. Crimes against the person that are prosecuted by way of indictment, offences like breaking and entering and home invasion, are plainly serious offences in the eyes of many Canadians.
An important aspect of Bill C-9 is that it targets only offences prosecuted by indictment. For instance, a conditional sentence would still be available for assault causing bodily harm, provided it is prosecuted by summary conviction. As I said during debate in the House, in order to ensure that the sentence is proportionate to the gravity of the offence and to the degree of responsibility of the offender, the justice system will have to rely on the discretion of prosecutors and police to charge an offender appropriately, using summary conviction charges in minor cases only.
Another important aspect of this bill is that while many offenders who would have been eligible for a conditional sentence order will in future serve their sentence in custody, not all will. It is anticipated that some will receive a suspended sentence with probation. Some offenders who would now be eligible for a conditional sentence order will likely get a prison sentence that is shorter than the conditional sentence it replaces, followed by a period of probation of several months.
Mr. Chairman, some have expressed concern that this bill would potentially increase the overrepresentation of aboriginal offenders. However, when considering this, we should also note that aboriginal Canadians are also overrepresented as the victims of crime. Bill C-9 is aimed at providing protection to those victims and their communities.
A report released on June 6, 2006, and prepared by the Canadian Centre for Justice Statistics found that aboriginal people were more likely to be victims of crime than were non-aboriginal people. It states that 40% of aboriginal people aged 15 and over reported that they were victimized at least once in the 12 months prior to being interviewed. This figure compares with 28% of non-aboriginal people who did so. Restorative justice is an important tool for aboriginal offenders, but aboriginal victims are as deserving of protection and safety as every other Canadian. Bill C-9 is a step to delivering that protection.
In terms of breakdown by type of offence, the study reports that out of 22,878 violent incidents reported to police on-reserve in 2004, 20,804 were assaults, representing 90% of violent incidents reported to police. Common assault, if prosecuted by indictment, is punished by a maximum sentence of imprisonment of five years, pursuant to section 266 of the Criminal Code, and therefore would not be caught by Bill C-9. The CCJS study found that aboriginal people were twice as likely as their non-aboriginal counterparts to be repeat victims of crime, and three and a half times more likely to be victims of spousal abuse. Finally, the study reports that between 1997 and 2000, the average homicide rate for aboriginal people was 8.8 per 100,000 population--almost seven times higher than that for non-aboriginal people, which is at 1.3 per 100,000 population.
Mr. Chairman, considering these statistics, I believe Bill C-9 is a necessary step to protect aboriginal victims and aboriginal communities in a manner that closely aligns with the purpose and principles of sentencing as set out in the Criminal Code.
Drug offences and drug-related violence remain a growing threat to our communities and to our Canadian way of life. As I stated when I appeared before this committee on the main spending estimates of the Department of Justice, the number of marijuana grow ops has increased dramatically in Canada, spreading into suburban and rural communities. The production and distribution of drugs such as crack cocaine, methamphetamine, and ecstasy have increased as well. Bill C-9 will help to ensure that serious drug offences will result in greater punishment.
This bill applies to the Controlled Drugs and Substances Act, as well as the Criminal Code, by prohibiting the use of conditional sentence for drug offences prosecuted by indictment and punishable by a maximum sentence of ten years or more. Consequently, a conditional sentence order will not be available for trafficking or producing a substance in schedule I or schedule II--except for cannabis--or for trafficking or producing a substance in schedule III if prosecuted by indictment. It would not be allowed, either, for importing or exporting a substance in schedule I or schedule II, or for importing or exporting a substance in schedule III or schedule IV, if prosecuted by indictment.
Mr. Chairman, I would now like to refer to some court cases and submit to this committee that the conditional sentences handed out in these cases were simply unacceptable.
In Regina v. Wong, from the British Columbia courts, the offender, a 42-year-old man and a father of two, pleaded guilty to trafficking in a dial-a-dope scheme involving three sales of cocaine to an undercover police officer. A dial-a-dope operation is a drug enterprise with a certain level of sophistication that permits people at home to order drugs via phone. The drugs are dropped off at a specific location, often at the buyer's home. These types of dial-a-dope operations often involve large amounts of narcotics.
The offender had a previous criminal record at the time of these offences and was under a conditional sentence of imprisonment for related drug offences. Despite the aggravating factors, the court sentenced the offender to two years less a day, to be served in the community--in other words, house arrest.
In Regina v. Kasaboski, an Ontario decision, the 22-year-old offender pleaded guilty to one count of trafficking in methamphetamine and was also charged with trafficking and possession of ecstasy. The facts of this case established that the offender had trafficked 500 tablets of methamphetamine and was later discovered with 200 tablets of ecstasy. The offender had no prior criminal record, but after committing the offences I just mentioned, he was found guilty of failing to attend court and of possessing property obtained by crime.
In sentencing the offender, the court found that he had made substantial efforts to change his life, he had been clean for 17 months, he had held a job in a brewery for 16 months, and his parents were in support of his efforts. The court also said the following:
Both ecstasy and methamphetamine are dangerous drugs. While the nature of the overall organization with which Mr. Kasaboski was associated is not clear from the facts presented to the court, it is plain that he was well up in the distribution chain. These were not street-level transactions and small amounts, but rather substantial sales for substantial amounts of money. The motive, I infer, was for profit.
The court found that both denunciation and deterrence could be achieved by a conditional sentence of two years less a day.
Another example can be found in Regina v. Basque. In the recent decision of the B.C. court, the offender, a 22-year-old, was found guilty of possession and trafficking in cocaine. The offender operated along the lines of what I described earlier as a dial-a-dope dealer. In reaching its decision, the court found the guilty plea entered by the offender, the fact that he had no prior criminal record, and the fact that the offender was trying to avoid his former lifestyle, to be mitigating. However, the court found the following to be aggravating, and I quote:
The aggravating circumstances in this case are: (i) the Dial-A-Dope circumstances; (ii) the fact that the drug purported to be trafficked was cocaine; but the most aggravating is the fact (iii) that this offence took place while Mr. Basque was on an undertaking with respect to virtually the same offence.
Even though these circumstances were present in that case, the sentencing judge sentenced the offender to 12 months imprisonment to be served in the community--again, house arrest.
I submit to the members of this committee that these types of sentences for these types of drug offences are inappropriate. Such cases are not rare. They demand that action be taken by this Parliament to ensure that serious drug crime results in actual incarceration.
Canadians are concerned about sentencing in crimes of violence, as well. It is clear from the case law that house arrest is not a rare occurrence in these cases, either. For example, from Calgary, a Michael John Wilson, age 25, was convicted of manslaughter. Wilson was given a two-year conditional sentence for an incident in which his infant daughter's spine was snapped and her aorta torn, causing her death.
In Toronto, Scott Carew was sentenced to two years of house arrest and 240 hours of community service after pleading guilty to an aggravated assault that left his five-month-old son permanently brain damaged.
In Cayuga, Ontario, James Peart, convicted of ten counts of indecently assaulting boys as young as eight over two decades, was given a conditional sentence or house arrest of twenty months.
In Peterborough, Ontario, Fred Cole, 58, convicted of raping a young girl, was given a two-year house arrest sentence.
R. v. J.G.C., a 2004 case, is a stark example in which the offender, a man in his late thirties, pleaded guilty to sexually assaulting two boys under the age of 14 on several occasions. He used inducements such as video games, candy, cake, and money to gain the trust of one of the boys. The second victim was a cousin of the first. In sentencing the offender to a nine-month house arrest period, the court stated that such a sentence was appropriate because the offender did not represent a threat to the community, did not use force to sexually assault the two boys, and had attempted suicide, which showed a certain degree of remorse.
I personally find the sentences reached in these cases unconscionable, and I'm sure that many members of the public do too. The sentences in these cases do not properly reflect the principles of denunciation, deterrence, and proportionality. This bill will ensure that the sentencing objectives and principles are better reflected in sentences handed down in cases such as these.
I would like to conclude by saying that Bill C-9 is a necessary step toward more just sentences that will protect not only our communities and our children, but also our Canadian values. It will ensure that conditional sentences remain available for those who commit minor crimes and, in all the circumstances, merit the opportunity to serve their sentences at home. But when a criminal commits a serious criminal act, it will ensure that the sentence will be served in custody. The appropriate use of conditional sentences will strengthen confidence in our criminal justice system.
Thank you.
4:10 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you very much, Minister. The committee and I appreciate your presentation, and I know there are many questions to be forwarded to you.
I will begin a seven-minute round of questioning with Ms. Sue Barnes.
4:10 p.m.
Liberal
Sue Barnes Liberal London West, ON
Thank you very much.
I appreciate the fact that you were here before on estimates and said you would be back with supplemental September priorities because you couldn't answer some of the questions we had then. I'm sure you'll have the answers when you appear before us soon.
I look at Bill C-9, and our party is interested in having some form of restriction on conditional sentencing, so it is a question of what, to what degree, and how we choose the offences that should be there.
We're going to hear a lot of evidence, and we'll have to make our final decisions based on the evidence that's educed before this committee, and our best judgment around the table. But there are a number of issues on which my colleagues and other members will question you.
I note your examples. I also note for the record that the crown could easily appeal those sentences, and I'm sure that they should have or would have in some of those cases. But the fact remains that I thought your presentation today should have included something to do with the costing, because this is going to affect the situation in the provinces and territories throughout the country.
I would like to see tabled before this committee some idea of the projected costing and some acknowledgment or discussion of where you are with your consultations with those who could be most affected in those jurisdictions, because we all know that these sentences will be served at that level and not in federal penitentiaries.
You've also talked about the aboriginal community, and I think it is very true that aboriginal communities are over-represented not only in our penal system, but among the victim community. I agree with that.
It is the amendments that are going to be the work in progress here, Minister. You have now come before this committee twice to say you are amenable to amendments. Are your bureaucrats in the Department of Justice willing to work with the parties, or will we just go through our normal amendment process? In other words, I've noted throughout the summer that in your speeches you have dropped mention of those sections that deal mainly with property. You've been talking about the serious injury parts and the serious crimes, and I think we can come to an agreement on those areas.
There are other things I want to discuss with you, but I will let you give your views and tell us whether the government is going to be amending its own bill.
4:10 p.m.
Conservative
Vic Toews Conservative Provencher, MB
Thank you very much.
First of all, I would prefer that you work with members of the committee rather than bureaucrats. You are the elected members, and I hope, after hearing the evidence, you can determine what you think is in the best interest of the Canadian people. I can tell you that my department is more than willing to work with you.
But I want to point out that there are many property offences that pose a great deal of concern to Canadians. For example, some of the attorneys general are concerned about auto thefts, about the skyrocketing auto thefts. In the city of Winnipeg alone there'd be 9,000 auto thefts in one year, often committed by the same individuals over and over again, with people still getting conditional offences. In terms of other property offences, the Vancouver police related to me that an individual convicted of 124 offences was still receiving conditional sentences.
So the issue of property offence is not something that we should simply dismiss, and say that they're not serious. In fact, the evidence is very clear that violent crimes often begin with property offences. One concern I have is about breaking and entering. What is the difference between a break and enter into a residence and a home invasion? The problem is that you'll see a person in that home invasion. So a break and enter has the potential of being a very serious offence.
I'm trying to meet all of your points here; they're good points, and I appreciate your willingness to work on this bill, because we do need your support in a minority government.
You mentioned the issue of appeal. I was just looking through a newspaper and saw that, for example, the Manitoba Court of Appeal routinely hands out conditional sentences for drug offenders. I'm talking about production of and trafficking in drugs. Quite frankly, I don't see that as appropriate, and yet the courts of appeal in this country are the last resort. There is no further appeal in matters to the Supreme Court other than on a matter of law. It is very rarely granted that a sentence of appeal could ever go to the Supreme Court. So we have inconsistencies right across the country in terms of what is an appropriate sentencing for trafficking.
With regard to your point on the costing, first of all, this costing will be discussed at the attorneys general and Minister of Justice meeting in October. I have been holding individual conversations with provincial attorneys general, who, I might add, are generally supportive of the reforms as set out in this bill. Provincial and territorial officials are developing a paper outlining their views on the cumulative impact on not only Bill C-9 but also Bill C-10, and mandatory minimum sentences for serious drug offences. This paper has not yet been finalized, but it will be discussed at that ministerial meeting.
The increase in operational correctional costs will depend on the proportion of ineligible offenders who will receive a jail sentence and the average length of those sentences. Our estimates indicate that there could be additional jail sentences amounting to 443 prison years, which equates to an annual national expenditure for these sentences of approximately $21.7 million. This represents 1.7% of the present annual operational expenditure by jurisdictions on adult corrections. I look forward to seeing the provincial estimates on that.
4:10 p.m.
Liberal
Sue Barnes Liberal London West, ON
Mr. Minister, a lot of other costs would go up with increased incarceration--for instance, the legal aid costs required. Usually in criminal legal aid, potential incarceration is the factor that most determines whether somebody's legal aid certificate is granted. They are underfunded right now.
In our last meeting on estimates, you again didn't have an answer on the situation with legal aid. Where are you now?
4:10 p.m.
Conservative
Vic Toews Conservative Provencher, MB
Where we are on the issue of legal aid is that we extended the agreement for one year so that there would be something in place when the government changed and there wouldn't be a hole in that legal aid funding.
But just on the issue of costs, as you know, estimating future costs--the impact, the benefits--is a very difficult thing to do. Of course, as you will recall from your own gun registry, you had estimated $2 million in total costs, but as I understand it from the Auditor General, it's approximately $1 billion. So the costs that you estimated in that case were a little off, and I'm saying that I want to get all the facts before I start giving cost estimates. You can appreciate that sometimes there are difficulties in giving cost estimates.
4:20 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
Thank you, Mr. Chairman.
Minister, I do not feel that you have fulfilled the task of convincing us to support your bill. It is far too easy for you to come before this committee, refer to six random cases and to say that at the end of the day, the judiciary didn't do a good job.
I have a specific question for you and I would appreciate a specific response. When we met with your officials, they informed us of the fact that for the year 2003-2004, the last year for which figures are available, 15,493 people had received conditional sentences. According to your department's data, how many people received conditional sentences for violent crimes? That is the real burden of proof you must discharge. You cannot simply use two or three examples from case law.
When Bill C-41 was passed, the goal was to free up prison space to make sure that real criminals, in other words those who commit violent crimes, would be behind bars. On the list of offences for which people would no longer be able to receive conditional sentences — our research service provided us with a list of a hundred — some do not involve any violence at all. Obviously, each case must be assessed on its merits, granted. However, I would expect you to be more rigorous when it comes to the figures you are providing for us.
I hope that within the Department of Justice there is some kind of system which allows you to know how many people out of these 15,493 committed violent crimes and received conditional sentences.
That is my first question. I have three others and so I would appreciate short replies.
4:20 p.m.
Conservative
Vic Toews Conservative Provencher, MB
I can indicate that CCJS will be presenting those statistics; I don't have those statistics.
I just want to correct one statement about you indicating that the legal system isn't doing its job. That's not what I said. My concern is with the law that Parliament passed. There were assurances made to the Canadian people that these amendments would not be applied in the case of serious or violent offences. That was an undertaking made to the people of Canada. What I was doing, by bringing forward those examples--