Justice Committee on Sept. 19th, 2006

[Vic Toews, Conservative, Provencher, MB]

Mr. Bagnell, can I just intervene here? That is absolute nonsense. If you point out a case where a prosecutor who has a reasonable likelihood of prosecution simply will not prosecute because of the sentence, I'd like to see that--

[Larry Bagnell, Liberal, Yukon, YT]

You'll see it—

[Vic Toews, Conservative, Provencher, MB]

—because it contravenes the guidelines of all the prosecutions across Canada.

[Larry Bagnell, Liberal, Yukon, YT]

You'll see it if reasonable punishment is not available.

The second part of my case is those that can proceed by indictment and summary conviction. Some of those cases will go to summary conviction and will have shorter sentences, when they could have had more rehabilitation and a longer sentence.

And in the final cases, are those—

[Vic Toews, Conservative, Provencher, MB]

Let me answer that, Mr. Bagnell.

On summary conviction, the conditional sentence is still available. How is it that treatment is not available?

[Larry Bagnell, Liberal, Yukon, YT]

That's what I'm saying; this is going to be the problem. Prosecutors are going to make it summary; they're going to give him that condition, but it will be a shorter sentence than would have been received under indictment and using a conditional sentence, where he could have got longer treatment and then possibly would be safer to society.

And finally, as the evidence will show, there will be a number of people who are rehabilitated by the various conditions that go with the conditional sentence: the treatment, education, personal treatment, anger management, and drug treatment, etc.

I'm not asking you to believe me because I know you won't. So my question to you is, if the witnesses—and we've got a great slate of very knowledgeable witnesses: excellent criminologists, as Ms. Kane said—suggest that this bill will make society less safe and create more victims, would you be prepared to withdraw either the entire bill or the parts that the expert witnesses prove will make society less safe?

[Vic Toews, Conservative, Provencher, MB]

Mr. Bagnell, you'll listen to the evidence and you'll make a decision. You're the committee. I am convinced that this is the appropriate approach; it's a balanced approach. It's actually concerned about victims, and it is a movement away from constantly giving all the rights to criminals.

We believe that victims should in fact have a say, and that denunciation and deterrence are every bit as important if not more important than some of the other principles.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell. I know you wanted to share your time with Mr. Lee.

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

Thanks.

[The Chair, Conservative, Art Hanger]

One question.

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

I'm going to leave a question because there probably isn't an answer yet. But if there is, I'd like to think there might be some information forthcoming later, in the event it truly is an issue.

It has to do with this decision by prosecutors about whether to proceed by way of indictment or summary conviction. In the way this legislation is structured, there'll be a new set of variables inserted into that decision--in other words, when the prosecutor makes the decision. Before, it had to do with the old Criminal Code separation between the summary and the indictable. Now the sentencing options are going to be affected by this.

The question I will leave—because I'm sure there isn't an answer yet—is does this raise the spectre or the issue of a citizen arguing post-charter that he or she is being subjected to arbitrary measures in the prosecutor's decision? It's not a judge making the decision; it's not the law making the decision. Instead, it becomes a prosecutorial decision that has this additional implication or dimension. I'm just raising the issue as to whether or not this might be seen through the charter lens as an arbitrary measure exercised by a prosecutor, affecting the rights and liberties of the individual in a material way and in a way that might not be consistent with the law—

[Vic Toews, Conservative, Provencher, MB]

No—

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

—also using the criminal law lens. I'll just leave that.

[Vic Toews, Conservative, Provencher, MB]

No. I think the answer is fairly clear that the kind of discretion being exercised on a daily basis now by prosecutors has not been seen as a violation of the charter.

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

Not yet. I'm simply indicating that now we're loading up the implication of that decision, and whether or not this would change that analysis.... I will leave it with you and your officials.

[Vic Toews, Conservative, Provencher, MB]

Mr. Lee, it would strike me—

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

And I may ask it again.

[Vic Toews, Conservative, Provencher, MB]

—as strange that we could repeal the conditional sentence regime entirely, and this wouldn't violate the charter—

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

That could be done.

[Vic Toews, Conservative, Provencher, MB]

--yet if you allow for some mitigation and discretion within the context that would benefit an accused in certain cases, this would somehow violate the charter. I find that very difficult to believe.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

We would like to thank you, Minister Toews and Ms. Kane, for your appearance here. I think it's been a very informative debate that we've had thus far. Thank you.

The meeting is adjourned.