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.