Justice Committee on Sept. 19th, 2006

[The Chair, Conservative, Art Hanger]

Keep comments directed to the minister, please.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Minister, you introduced Bill C-9, and I'd like to know what the intentions were with respect to violent versus non-violent crimes. There seems to be a problem here. Some crimes might not, at first sight, seem violent. However, when individuals commit these crimes, it leads to more violence toward children, young women, be it sexual assaults, incest or other offences. I would like to hear your comments on this.

[Vic Toews, Conservative, Provencher, MB]

I think, Mr. Petit, you've made a very good point. The distinction between violent and non-violent is very difficult to make in practice, because, yes, in certain cases where you have someone getting hit over the head with a baseball ball, that's a violent crime. But the situation that you pointed out, drug peddling, for example, then leads to some young man or young woman being addicted and then having to steal or rob in order to support that habit. So the violence leads from the one crime. These are all interconnected, so it's very difficult to say we can only deal with violent crimes, but property crimes aren't really significant. I think we have to look at it from the point of view of the victim.

I want to commend you for bringing that perspective here so that we balance the criminal justice system, because it's not all about rehabilitating an offender. It's also about protecting victims and keeping young children out of a life of crime. The intent was to ensure that where there are serious or violent crimes, these conditional sentences are no longer applied. I recognize in some cases there would be a suspended sentence and probation orders, and again, as I have said, I have a preference for those kinds of orders for a number of very practical reasons.

We chose that ten-year or more criteria as being indicative of a crime that Parliament considered to be very serious. Mr. Lee has pointed out that in downtown Toronto cattle rustling is not that serious. It may well be, though, that in Mr. Thompson's riding or in my riding it is a significant issue. When farmers are struggling to make a life and somebody is stealing their livelihood, it is a serious issue, and one that needs to be punished very appropriately. In some cases maybe a probation order is acceptable, but quite frankly, if Parliament determined that ten years or more was a serious offence--and I consider ten years or more to be a serious offence--we've chosen that.

Are there issues that Mr. Ignatieff or Mr. Bagnell or Mr. Lee have raised? Is it too inclusive because of that too general a rule? I'm willing to deal with that, but I would urge the committee in its dealings not simply to think about the perpetrator of the offence, but also the victim, and I'm pleased to see that there will be consideration to that end because of the comments that you have made, Mr. Petit.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Ms. Barnes.

I'm going to just advise the committee that I've cut a lot of slack with respect to time for everyone who has asked a question. I'm going to tighten it up now in this next round.

[Sue Barnes, Liberal, London West, ON]

That's fine. Thank you very much.

One of the things that Bill C-70 did in the last Parliament, when we tried to address this matter before Parliament fell, was not only to have the serious personal injury offences included, but also those areas such as terrorism offences and criminal organization offences, and then there was a special designation for those offences for which, on the basis of the nature and circumstance of the particular offence, the expression of denunciation was the uppermost consideration.

Now we know that section 718, the proportionality test that's in the code and our sentencing principle since the 1995-96 time period, sections 718 to 718.2 are still going to be here. One of the concerns this bill brings in a very real manner, Minister, is you talked about the police and the crown having discretion on how they're going to charge, and that brings up another issue of whether they'll be overcharging or undercharging to get around some of the lack of discretion that's going to be in the courtroom.

One of the people the discretion is really taken from is the sitting judge, the judge who hears the facts, the judge who knows the law and the range. My issue here is we have principles of sentencing set out in the Criminal Code that have not been altered, and you have a judge who is dictated to by our Parliament to impose a proportionate sentence when they feel--and it's a two-step process--that a conditional sentence is appropriate. Yet, in essence, if we went forward with this bill as is, there are going to be many situations where that sitting judge does not have the discretion any more.

The way that was dealt with in the prior piece of legislation was having a small out: there was a presumption against having the conditional sentence, but if a judge felt very strongly in that particular fact situation or those particular extenuating circumstances, whatever they would be--and these are circumstances that we have embedded in the Criminal Code itself, which they're supposed to listen to and are supposed to follow the case law that's been enunciated over time on these principles--it's going to be taken away.

Now, I think of things like.... And you downplayed that this is an appropriate vehicle, Minister, and said it's not that important. Treatment orders, for instance, Ms. Kane will tell you are an important part of conditional sentences for many situations in Canada right now, and it's very difficult in other sections to bring into effect.

Where do you, in your own mind, reconcile a sitting judge's discretion and the principle of proportionality and looking at the responsibility of the offender in the code?

That has nothing to do with whether it's victims or police or all of the partners in the justice system--and it is the taxpayer, too. So it is down specifically to the laws we have, because you have not altered those sections. Those sections are fundamental, and there is a way here that we are just.... I'm suggesting to you that maybe it is having the judge do those written reasons in exceptional circumstances, like a presumption against conditional sentences but in exceptional circumstances he or she would have the ability to sit there. We've all seen cases where it doesn't fit the norm.

I'd like your thoughts on that, Minister.

[Vic Toews, Conservative, Provencher, MB]

Thank you.

The concern I had with Bill C-70 is the small out that you identified, because in my experience, those small outs grow into large manholes through which cases drop regularly. It reminds me, eerily, of the faint hope clause, which was to be used so rarely and of course was used fairly regularly. So I'm very concerned about that type of small out.

Parliament's responsibility is to set the ground rules and to set the floors in terms of sentencing. And I believe that this does not take away from the discretion of judges. I remember, when I was a prosecutor, a judge saying to an individual, “I can give you a choice: you can go to prison or you can go on a suspended sentence with a probation order with treatment.” They usually chose the treatment, and that was long before conditional sentences were ever available. I certainly recall that treatment was a part of programs, and I prosecuted back in the 1970s. Conditional sentences didn't add anything in that respect, that I recall.

If you're worried about some legal problem, there will be no legal problem if you set the rule very clearly by saying that anything that is punishable by ten years or more is not eligible for a conditional sentence. Then the principles in 718 to 718.2, of proportionality and the like, have to be seen in that particular context. Parliament has set a ground rule, and the interpretation has to be in the context of that ground rule. For example, in the case of the mandatory minimum prison sentences in respect of guns, which exist in the Criminal Code today, no one is saying that they offend the principle of proportionality simply because they take discretion away from a judge.

[The Chair, Conservative, Art Hanger]

Thank you, Minister.

Mr. Ménard, go ahead, please.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

We know that parliamentarians have a duty to make decisions based on reliable evidence while steering clear of emotions. You know by now that I am a rational man and that I exercise self-control.

[Vic Toews, Conservative, Provencher, MB]

Did you say irrational? I didn't get the translation here.

[Réal Ménard, Bloc, Hochelaga, QC]

Don't be so harsh, you know I am a sensitive man.

I heard that your officials had advised you against tabling such a bill. You were told that there wasn't much of a relationship between stricter sentences with less access to conditional sentences and the goal you seek.

So, would you be a generous man — and I know that you are in your heart of hearts — and give us the briefing notes that your officials drafted, so that we could best make decisions based on solid evidence?

You are on the slippery slope of ideology, and you know this very well. You introduce this bill, but provide no solid data to support it. You are not even able to tell us what the rate of recidivism is for people who received conditional sentences. I look forward to hearing what your senior officials have to tell us on Thursday.

We are serious people, you and I, we like politics and Parliament, but in order to make decisions...

[Vic Toews, Conservative, Provencher, MB]

You tell me what you want tabled, and I will see if I can accommodate you.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to see the notes from your officials.

[Vic Toews, Conservative, Provencher, MB]

But simply because a departmental official has a certain opinion about something doesn't mean that it then becomes government policy. I could well disagree with any one of my advisers--

[Réal Ménard, Bloc, Hochelaga, QC]

Yes.

[Vic Toews, Conservative, Provencher, MB]

--and I think it has been done before.

[Réal Ménard, Bloc, Hochelaga, QC]

Yes, but these people are well informed; they have had access to data. Your department has access to longitudinal studies and there are people who monitor that. For our part, we simply have to make informed decisions based on evidence while steering clear of all emotion.

[Vic Toews, Conservative, Provencher, MB]

I think you heard Ms. Kane's statements in respect of the conclusiveness of evidence, but if you tell me what you want, I'll see if I can accommodate that.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to see the briefing notes your officials gave you.

You are my friend, you know that.

[Vic Toews, Conservative, Provencher, MB]

You make the request, and we'll see what we can give you.

[Réal Ménard, Bloc, Hochelaga, QC]

All right.

Do I have enough time to ask another question, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

You have time for one very quick one.

[Réal Ménard, Bloc, Hochelaga, QC]

All right.

[Vic Toews, Conservative, Provencher, MB]

From a friend to a friend, I guess.

[Réal Ménard, Bloc, Hochelaga, QC]

Of course.

Having you testify before this committee is so interesting, you should come more often.

Minister, the distinction made between violent and non-violent crimes is significant. In 1996, when conditional sentences were established, a federal-provincial-territorial report was submitted to Minister Rock. Two concerns were expressed. First, some believed that the prison population was going to grow by 50 per cent. Moreover, there was a desire to make sure on the one hand that incarcerated individuals were those who had committed the most violent crimes, and, on the other hand, that those who remained in the community would be able to be rehabilitated. Regardless of what Mr. Petit may say, given his usual lack of rigour, the Bloc Québécois considers that the distinction made between these two types of crime should be front and centre in the public debate. I am certain all citizens would agree with this distinction.

Would you acknowledge that in 1996, when Bill C-41 was passed, the motivation behind it was far more rational than what you have described to the committee this afternoon?

[Vic Toews, Conservative, Provencher, MB]

I don't want to go into the details of the 1996 bill, which eliminated the right of victims to collect restitution, for example, through the courts. In fact, they were told to go out and get a civil order and then try to enforce a civil order for restitution against, for example, gang members. It was absolutely horrendous in terms of what it did to the administration of justice. Can you imagine a senior person in Montreal whose fence has been destroyed by a street gang member and the gang member has been ordered to give restitution--