Justice Committee on Sept. 19th, 2006

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

Minister, when Bill C-9 was tabled in the House of Commons, I had the opportunity to tell you that I was against the bill. Today, I will quote three figures, and I would invite your departmental officials to reflect on them before they go any further.

Fifty-five thousand people have avoided detention since 1996, the year when conditional sentences were established. I'll have a question on that later on. Based on 2002-2003 figures, the average annual cost of incarcerating a person in a provincial jail in Canada is $51,454, whereas it costs $1,792 to monitor an offender in the community. I think, Minister, that these three figures should give you pause, but I will go further.

I am speaking with all due respect for you and your knowledgeable background, Minister, because I know that you were the Attorney General of Manitoba when this case was heard before the Supreme Court and a decision was rendered. I am referring of course to the Proulx decision handed down in 2000, referred to in the Supreme Court decision 1 S.C.R. 61. So, if there are any more significant or more recent decisions to counter the Proulx decision, I would like your department to provide me with a copy of them.

The Supreme Court — and this hasn't been reconsidered since — established 12 principles for the imposition of a conditional sentence. The first is the following:

Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives.

As a defence counsel, I practised criminal law for 25 years. I was there when the conditional sentence system was first introduced and I appeared before various instances right up to the Court of Appeal on this matter. I can tell you — and you seem to have forgotten this — that when conditional sentences fail, that automatically leads to imprisonment until the sentence has been served, or to a review and stricter conditions.

I have two very specific questions to put to you. First, does the Department of Justice have statistics on successful conditional sentence cases? You cannot possibly not have those. We would like to have some information on these successes, that is, cases that did not result in a failure, in other words cases where a conditional sentence was imposed, the sentencing took place, and the offender completed the entire term of the conditional sentence. I would like to have these figures.

My final question has to do with your openness to possibly reviewing this bill. Have you considered conditional sentences for terms of up to five years less a day? On the one hand, that would serve as a counterweight to the ten years you are asking for. Moreover, we know that quite often people who receive five-years jail terms or less in penitentiaries get out faster than if they had been sent to a provincial prison where the sentences served are of two years or less. I could give you examples of this type of thing from here to Vancouver.

I hope you have understood my two questions.

[Vic Toews, Conservative, Provencher, MB]

Yes. I think they're both very good questions.

On the issue of 55,000 avoiding detention, this doesn't mean there was any success. I mean, 55,000 people avoiding detention.... It seems to me I hear the same thing about the incarceration rates now for the Youth Criminal Justice Act—that they are so much lower—and somehow trumpeting that as a success. That only says there are fewer youth incarcerated. It doesn't mean the kids are no longer stealing cars. The police tell me something quite different.

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

No, no.

[Vic Toews, Conservative, Provencher, MB]

I see we're on the same page in terms of 55,000 avoiding detention. I'd probably want to know how many of those are repeat conditional sentences. Are we actually talking about 55,000 people? I don't think so. I'm guessing, but we're talking about probably a third of that number, in terms of actual people. But I'm guessing here and I don't want to guess.

On the cost of incarceration, I think $51,000 is a fair number. You're saying it only costs $1,700 to monitor. That doesn't talk about the full cost to society. As I was told at the Vancouver Board of Trade, the average crack addict on the street steals $1,000 of product a day. That's $365,000 a year, because crack addicts don't take a day off. Their addiction doesn't allow that. They have to steal that product, that same amount, every day.

So you say $55,000 for incarcerating and $1,700 for supervising; they're still out there stealing. And that doesn't talk about the other social costs; this is direct economic cost to a business. The other figure I heard was that for every offender locked up for a year in a serious crime, 15 serious crimes are avoided. Again this gets back to how many people are actually avoiding detention, and deterrence—all those kinds of issues. We don't have the time to talk about that, but you raise very good points that maybe you can discuss as a committee.

Does the department have statistics in terms of success? I think we'll take a look to see what we can provide you on that. Now, on your last point, about conditional sentences being applicable to—

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

Conditional sentences.

[Vic Toews, Conservative, Provencher, MB]

Yes.

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

I'm sorry, Mr. Chairman.

My question was the following: have you considered conditional sentences for terms of five years less a day, in other words sentences to be served in penitentiaries?

[Vic Toews, Conservative, Provencher, MB]

I understand that. What you're saying is, instead of only being applicable to two years less a day, make it applicable to sentences of less than five years. If someone were convicted of manslaughter and, for example, got a four-year sentence, the court could then say we're going to imprison that individual in the community. I can tell you I'm not in favour of that. I think we have enough scope in terms of alternatives to sentencing in the under-two-years category. I would not be in favour of expanding that. I think we would just see a multiplication of more serious offenders being eligible for alternative....

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay. Thank you, Minister.

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Minister, for being before us today.

You may recall that in 2005 I had the pleasure of hosting you in Barrie, where we discussed conditional sentences. At the time our police chief, Wayne Frechette, who remains our police chief, expressed his frustration with the process, the revolving door. I hear that again and again from residents and from police officers. I certainly see this as a good sign to combat that concern with our justice system.

There are two things I wanted to explore with you, Minister. One is, are there any international examples you can share with us where the increase of custodial dispositions helps with deterrence? I think the general impression is that it does, but if there have been other examples in different communities I think they would help those who are uncertain with this legislation to see the real benefits of it.

[Vic Toews, Conservative, Provencher, MB]

My department can provide you with some of those statistics and some of those studies. Certainly the studies in Canada are not very clear on that. I think you're right to look for examples in other jurisdictions. That's something we will have to do. I don't think it's particularly clear from the evidence. For example, there are certain things I think we can say. I did note, for example, an individual stating recently in an interview following the very unfortunate incident in Montreal last week that she had noticed over the last 16 years that gun offences had gone down because of our laws. I also noted that would have been about the same time that mandatory minimum prison sentences for gun crimes were enhanced, which was well before the gun registry was brought in. The gun registry in effect only came into force in the last few years. It really has had no discernible impact in that respect.

I think if you look at the statistics on where we have gone and what has been effective in terms of dealing with gun crimes, there's a good solid argument to be made that mandatory prison sentences for those kinds of gun crimes have resulted in a reduction.

I was speaking to one of my staff who had spoken to prosecutors in the United States, and they talked about the benefits of mandatory minimum prison sentences in respect of certain types of offences. For example, the prosecutor he was talking to indicated that especially in the case of sexual predators the sentences are very effective, because in those cases, when you put one of those sexual predators behind bars, there's no one taking their place. So you will see an actual drop in crime by ensuring that individual is not out on the street. Again, this is anecdotal evidence.

We have studies. For example, I mentioned the study that showed that incarcerating a person for one year for a serious offence prevented the commission of 15 less serious offences that individual would have committed during that one year. We can argue about that, but I think generally speaking--and this is a point I want to make--it's not simply the elimination of conditional sentences, or mandatory minimum prison sentences. It's a combination of a number of issues that you have to bring together. It also involves alternatives to incarceration. Are there individuals we can deal with outside of the penal institutions? The Hollow Water situation may well be one of those examples. There are other examples.

I was involved as the provincial Minister of Justice, and I'm sorry to be always referring to that experience, but it is in a real way much more hands-on than being a federal Minister of Justice, in which case you're not actually involved in the day-to-day enforcement of the Criminal Code. In Manitoba the youth justice committees have been a tremendous success. I don't know how many are still running, but I know when I left that office we were running over 50 in Manitoba and they were tremendously successful, not just with youth, but also with adults, seniors, for example, who for the first time in their life were involved with the law. There was obviously something wrong in their lives. So we made provisions to allow those kinds of individuals to also benefit from the so-called youth justice committee. The theory was that we have a very young senior population in Manitoba. The point is that they were helpful in that respect.

So I think we have to look at it in terms of policing, law, and alternative programs, whether they're for youth or others.

The example I like to point out is New York, where the murder rate was brought down from a high of 2,200 a year to about 550 a year through effective enforcement and laws. That's still high, given the prevalence of guns in that society, but the point is that 1,700 more people were alive last year or the year before because of effective enforcement and tougher laws.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

Mr. Brown, thank you.

Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

Mr. Toews, in your remarks today you used different terms. I just want to clarify what you meant by them. You used the terms “house arrest”, “serving sentence in the community”, and “conditional sentencing”.

[Vic Toews, Conservative, Provencher, MB]

They're basically the same thing.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

They are all interchangeable.

[Vic Toews, Conservative, Provencher, MB]

That's right.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

You're not trying to send us a message that you want to tinker with conditional sentencing.

[Vic Toews, Conservative, Provencher, MB]

No. I've been criticized for talking about conditional sentences. No one knows what conditional sentences are. Effectively, they're house arrest.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay. I was looking for another subliminal message. It's not there, so that's great.

Secondly, the debate here, as I see it, is not about conditional sentencing because conditional sentencing is going to remain. Is that right? Do you regard it as a valuable part of the range of sentencing options out there for judges?

[Vic Toews, Conservative, Provencher, MB]

I don't regard it as being any more valuable than a probation order, in the context of a suspended sentence. But since we have it there, and I understand from some judges that there are additional conditions that you can attach in a conditional order, there seems to be some benefit. I don't understand why we had to establish a whole new regime to do it, but there appears to be some marginal benefit. For that reason I'm not advocating getting rid of the entire program.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That's fine. The challenge then is really to identify the specific offences that cause the public and the odd politician to react by saying that a particular conditional sentence does not import enough denunciation, or does not send the right message back to the community.

[Vic Toews, Conservative, Provencher, MB]

I think you've summarized that very well, Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

In a small community the perpetrator of a sexual assault could end up back on the street, across the street from the victim of the assault, after a time that some people regard as far too short.

Other than that, we're trying to identify the offences. The government bill here takes an easy approach. It just throws out a rule of thumb--anything that has a maximum sentence of ten years or more, and a few other bells and whistles. But that includes--

[Vic Toews, Conservative, Provencher, MB]

I think generally speaking--

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

That's what the government bill does. I agree there are some cases where conditional sentencing should be removed as an option, but I wouldn't have got the whole fishing net out and included everything above a certain threshold. As I pointed out at an earlier meeting, this includes unauthorized use of a computer, and theft over.... If somebody steals your car for five minutes, it's theft over--