Evidence of meeting #14 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 sentences.
A recording is available from Parliament.
Conservative
The Chair Conservative Art Hanger
I call to order the meeting of the Standing Committee on Justice and Human Rights.
Today we have witnesses appearing before us from the Canadian Centre for Justice Statistics, principally the director, Ms. Lynn Barr-Telford.
You will be making a presentation, and you're assisted by Craig Grimes and Michael Martin.
Thank you for appearing before us. Would you please begin your presentation, Ms. Barr?
Lynn Barr-Telford Director, Statistics Canada, Canadian Centre for Justice Statistics
Thank you, Mr. Chairman, for the opportunity to speak to the committee about conditional sentencing in Canada.
After briefly presenting some data to set the context, we will look at conditional sentencing from two vantage points: the courts and corrections. Our analysis was restricted to provincial-territorial corrections, given that conditional sentencing applies only to sentences of less than two years and that supervision is a provincial-territorial responsibility. Throughout the presentation, I will draw the committee's attention to any issues of data coverage and to circumstances where particular jurisdictions may have been excluded from coverage.
Referring to the second slide in your package, we see trends in police-reported crime rates since 1977. The key trends of note are that the overall police-reported crime rate, shown in red, increased throughout the 1970s and 1980s—and also throughout the 1960s, although this is not shown on your graphic—then it peaked in the early 1990s and declined throughout the rest of the 1990s. It has been relatively more stable since 1999.
This trend is mirrored in the police-reported property crime rate, where a 6% drop between 2004 and 2005 put it at its lowest level in more than 30 years.
The violent-crime rate is shown in yellow. It increased fairly steadily for 30 years, also peaked in the early 1990s, and while generally declining since the mid-1990s, it has been relatively stable. Between 2004 and 2005, we did see increases in serious violent crimes, such as homicide, attempted murder, serious assaults, and robbery.
Moving to slide three, this next slide also provides some context, showing trends in the sentenced correctional population under supervision. It shows average daily counts. Please note that there are jurisdictions excluded from coverage, and they are noted in the note on the slide.
The key points in the graphic are the green line is the conditional sentence population, the blue line is the provincial-territorial sentence custody population, and the pink is the population on probation.
So on any given day in 2003-2004, the average population on a conditional sentence was 13,285. The conditional sentence population has almost doubled since 1997-98—up 95% since that first full year of coverage. The average supervised population on conditional sentencing, as you can see from that green line, has increased each year since its inception.
Referring to the pink line, we can compare this to trends in probation, which have been relatively stable, fluctuating up and down. As well, the provincial-territorial sentenced custody population was down 31% over this same time period.
So with these trends, what we have seen is a shift in the relative distribution of the sentenced population over time. Conditional sentences represented 11% of the supervised sentenced population in 2003-2004, up from 6% in 1997-98, while sentenced custody was down to 8% from 10%, and probation was down to 81% from 84%.
Slide four gives you a closer look at those trends in the provincial-territorial sentenced custody population and the trends in the conditional sentence population. We've adjusted the scale so you can see the trends more clearly on this particular graphic. You can see the upward trend in the conditional sentence population and the downward trend in the provincial-territorial sentenced custody population.
Slide five shows that the decline we've seen in the sentenced custody population has coincided with an increase in the non-sentenced custody remand population. What this has resulted in is a negligible change in the overall provincial-territorial custody population. So in 1994, adults in non-sentence custody represented just over one-quarter of all those in custody; ten years later, it was close to half.
Slide six is our final slide of context, and it presents Canada's incarceration rates in an international context. As you can see, when compared to the incarceration rates internationally, Canada's rate is higher than those of many European countries but lower than in England, Wales, and New Zealand, and substantially less than the rate in the United States.
On slide seven, now that we've set the context, we'll turn our attention to our sentencing data. These data come from our courts program, and we can look at conditional sentencing by offence type. Let's start, though, with a few baseline statistics.
With our courts data, we can talk about cases and we can talk about persons. For the next several slides, we talk about cases and the most serious offence within the case. In 2003-04 there were 13,267 cases that upon conviction resulted in a conditional sentence. And 2003-04 is our most recent year of available data. These over 13,000 cases accounted for 6% of all conviction cases for the jurisdictions of coverage. Now, when we speak of persons, we have just under 10,000 whose last convictions in 2003-04 were conditional sentences.
For all of our court slides, we cover about 70% of the national adult criminal court workload. We do not have conditional sentence data for Quebec, and we do not have data for Manitoba, the Northwest Territories, or Nunavut.
We can look at conditional sentencing by offence type in two different ways. On slide seven, for example, we can ask for which offence types was a conditional sentence awarded most frequently upon conviction. We can also ask, of the total conditional sentences imposed, what the composition was by type of event.
We can see from this slide that conditional sentences are not imposed with the same frequency for all offences. Offences in this particular chart represent those that are most often subject to a conditional sentence on conviction. Approximately one-third of drug trafficking offences and other sexual offences received a conditional sentence on conviction, and one in five sexual assaults received a conditional sentence.
In addition to the two sexual offences, there are four other crimes against the person offences in this chart. There are other crimes against the person--robbery, major assault, and criminal harassment. Between 8% and 13%, depending on the offence type, received a conditional sentence upon conviction in 2003-04.
Some of these offences are of lower volume, so while they may have been more likely to be subject to a conditional sentence on conviction, they do not necessarily make up the highest number of offence types within the conditional sentencing population.
In fact, if you turn to slide eight, what you'll see here is that ten offence groups represented the vast majority of the 13,267 cases, where a conditional sentence was imposed on conviction in 2003-04. Almost one in five, 18%, or just over 2,400 cases of conditional sentences imposed were for drug trafficking convictions under the Controlled Drugs and Substances Act. There are two crimes against the person in this list of ten. In total, major assault and common assault represented 17% of all conditional sentences imposed in 2003-04.
Moving to slide nine, let's now shift our attention. Let's look at what our courts data can tell us about the factors a court may consider when arriving at a sentence. There are many factors that the court considers, and these can include the seriousness or gravity of the offence, the degree of responsibility of the offender, and the nature of the incident for which the accused is convicted.
Our courts data allow us to look at three possible mitigating factors that may be associated with the imposition of conditional sentences: the type of criminal procedure, the prior conviction history of the accused, and the final plea entered by the accused. While not a definitive measure of the gravity of the offence, one way we can proxy the seriousness of an offence is to look at the type of criminal procedure that was followed--that is, was it summary or indictment?
From chart nine, we can see that slightly less than half, 47%, of the convicted cases with a conditional sentence were proceeded by way of indictment. Slightly more than half, conversely, were proceeded by summary conviction. If you look at the list of offences, with the exception of drug trafficking, break and enter, and fraud, the vast majority of many conditional sentence were not indictable.
For the two violent offence types in this list, that's major assault and common assault, at least two-thirds of all conditional sentences imposed were for summary conviction violations. Overall the total number of indictable offences is being driven by drug trafficking, which represents 18% of all conditional sentences, of which 90% were proceeded by way of indictment.
As mentioned, there are a number of mitigating factors that the court considers when imposing a sentence, as outlined in the Criminal Code, section 718. Prior conviction history of the accused is another possible factor that we're able to look at with our data. For this slide and the next two, our population is a person or the accused. This is a person who received a conditional sentence during their last appearance in criminal court in 2003-04. Here we're talking just under 10,000 people.
Approximately half of all conditional sentences were imposed on offenders with no prior conviction history. The percentage with no prior conviction history, as you can see, varied by offence type. Of note is the proportion of first-time offenders among the conditional sentence population when we look at certain offence types. Approximately 50% of persons sentenced to a conditional sentence for drug trafficking, fraud, impaired driving, theft, and major assault did not have a prior conviction, and 64% of those convicted for sexual assault did not have a prior conviction.
If you look at slide 11, the type of final plea is another mitigating factor listed for consideration when imposing a sentence. The final plea entered by the accused is the third and final factor that we're able to look at with our courts data. Again, our population here is the person or the accused, but in this particular slide we're focusing only on those offenders who were convicted of an indictable offence and sentenced to a conditional sentence in 2003-04.
You will recall from an earlier slide that just under half of conditional sentences that were imposed were proceeded by way of indictment. Here we have just under 4,500 accused as our population of interest. For this population, just under 4,500, the chart presents the prior conviction history and the type of final plea entered. Overall, six in ten had no prior conviction history, and almost 90% entered a guilty plea. The data in the chart seemed to be suggesting that both the prior conviction history and the type of plea may be factors considered at sentencing. The vast majority, 95% of those with a conditional sentence for an indictable offence, had either no prior conviction history or a plea of guilty as a possible mitigating factor.
It's important to note as well that there may have been other mitigating factors considered, but we have only information on the three factors I have spoken of in our data set. For the 242 persons, the 5% on the chart, who were convicted of an indictable offence without being a first-time offender or entering a guilty plea, there may be other mitigating factors being considered. Unfortunately, we're not able to discern that.
Slide 12 we included for illustrative purposes. Criminal Code offences that were listed in the Bill C-9 legislative summary document have been applied to our 2003-04 data. The purpose was to identify the number of persons who were given a conditional sentence for an offence type that was included in that Bill C-9 summary document. It's important to note that the list of offences that were subject to the Bill C-9 legislation were as specified in that legislative document.
Chart 12 indicates that almost one in three persons, 29%, just over 2,800 people, sentenced to a conditional sentence in 2003-04 were convicted of a Criminal Code offence that was listed in the Bill C-9 legislative summary document. For some further information we have also listed it by offence type in the chart.
Although it's not in the chart, if we add drug offences to the Criminal Code Bill C-9 offences, we see that half--that is, 4,865--of all persons sentenced to a conditional sentence in 2003-04 were convicted of a Bill C-9-listed offence or a drug offence.
We looked at the plea and the prior conviction history previously for our data; we can do the same analysis for this particular subpopulation. Once we took into account the prior conviction history and the guilty pleas, there were 310 people of the 4,865 who did not enter a guilty plea or who had a prior conviction history, and of these 310, the recorded procedure was summary for 110 persons, so we can't speak to any of the other mitigating factors that may have been considered for the remaining 200 people, for whom the procedure was either by indictment or unknown.
Slide 13 is our final chart from our courts data, and it presents information on the length of supervision time ordered for the 13,267 conditional sentencing cases. As you can see from the chart, conditional sentences are under supervision longer.
When ordering a term of prison or a conditional sentence, the court may also impose a term of probation to be completed following the completion of the more serious sanction. Thus, a convicted person could be under sentence supervision for a maximum of the combined total of these sanctions.
After we eliminated federal prison sentences--which are not subject to conditional sentencing--cases that were sentenced to a conditional sentence in 2003-04 were, on average, in sentence supervision for approximately twice as long as cases sentenced to prison. The total average ordered supervision for cases sentenced to a conditional sentence was 453 days, compared to 223 days for cases sentenced to prison.
We can see from the chart that a term of probation was ordered for a slightly larger proportion of those sentenced to a conditional sentence than of those sentenced to prison. When you combine sentences, you greatly increase the average time the convicted person will spend in supervision. The average ordered supervision time for an offender sentenced to a conditional sentence and probation was 700 days; this was 36% longer than for an offender sentenced to prison and probation. The shortest average ordered supervision time was for an offender sentenced to prison without probation; it was an average of 47 days.
The last three slides in our presentation, beginning with slide 14, make use of data from our new integrated correctional services survey. This is a microdata survey that follows individuals under the supervision of the correctional system. As of 2003-04, the survey had been implemented in four jurisdictions: Newfoundland and Labrador, Nova Scotia, New Brunswick, and Saskatchewan. Each of the next three slides lists the jurisdictions covered in the title; we cannot generalize beyond these jurisdictions.
Slide 14 presents the optional conditions attached to probation sentence and conditional sentence. When we look at the optional conditions most frequently attached to probation-only community involvements and those attached to conditional sentences, we do see some differences. Over 60% of conditional sentences had a reside or house arrest condition attached, and about one-third had a curfew attached. These were not on the list of the most frequently attached conditions for probation only.
Slide 15 also draws from our corrections data and is for two jurisdictions. It refers to offenders who completed a conditional sentence involvement in 2003-04. There were 4,300 of these cases. We can see that just over one-third of the persons in these cases were admitted to custody at some time as a result of a breach of condition while serving a sentence. This breach was severe enough to reach a threshold that resulted in an admission to custody. This is not an indication of the total number of breaches, however. The proportion admitted to custody on a breach, as you can see, varied by offence type--drug offences in this particular list are at the lowest, and you can see that robbery is at the highest.
Slide 16 is our final slide today. It also uses our correctional data and it looks at the proportion of those who left correctional supervision in 2003-04 and subsequently returned to corrections within a twelve-month period. Here we're looking at reinvolvement after a sentence has been served, and as we can see for the jurisdictions listed, the proportion of probationers who returned to corrections within the twelve months was a little lower than for those serving a conditional sentence, but the proportions are quite similar. The blue line in this graphic represents conditional sentence. The pink line represents probation. And the two intersecting blue lines are for sentence custody.
The proportion who returned to corrections after finishing a sentence custody was much higher, around 30%. It's important to note with these data that we weren't able to take into account any prior conviction history when we conducted the analysis.
Mr. Chairman, that concludes my presentation. My colleagues and I welcome any questions from the committee.
Thank you very much.
Conservative
The Chair Conservative Art Hanger
Thank you very much for your presentation, and certainly we'll be getting our first round, seven minutes, from the Liberal side.
Mr. Brian Murphy, you're first on the list.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chairman.
I want to thank the panel of witnesses for their able presentation. I have a number of questions and a number of comments. If I could ask a quick question first, have these statistics and this study been produced or compiled and presented anywhere else other than here today?
Director, Statistics Canada, Canadian Centre for Justice Statistics
The data upon which this analysis is based are publicly available, but we have put the data together for today's presentation in a particular way.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
To be more to the point and not to make you feel this is a cross-examination, has this very study, with these very pointed questions or conclusions or parameters, been put to the Department of Justice, particularly the Minister of Justice and his deputies, for their review prior to them tabling this bill?
Director, Statistics Canada, Canadian Centre for Justice Statistics
I am making this particular presentation for the first time today. I can't speak to the different types of analyses that have been conducted elsewhere.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Who else besides you would do these types of statistics? Does the justice department have its own statistics department?
Craig Grimes Project Manager, Courts Program, Statistics Canada, Canadian Centre for Justice Statistics
Justice Canada has access to many of these tabulations and from time to time requests aggregate data sets for policy development. They may have put together some data related to conditional sentencing, but I haven't seen any analysis of those data.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
So we don't really know what the minister and his advisers saw, but we know they didn't see this exact presentation done by you.
Project Manager, Courts Program, Statistics Canada, Canadian Centre for Justice Statistics
That's right.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
That's fair. Okay. Because my comment on this, and I will continue with some questioning, is that it's quite elucidative. It tells us that a number of factors we've been arguing about here about the effectiveness of conditional sentencing are true.
You've concluded that offenders with no prior history and offenders who plead guilty make up by far the biggest part of those who got conditional sentences. Is that right?
Project Manager, Courts Program, Statistics Canada, Canadian Centre for Justice Statistics
That's correct.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
The question I have--and I think I know the answer--for those of us around the table, and there seem to be a few, who have some experience in the criminal justice system, there's no way of accounting statistically for the interplay between a prosecutor and a defence attorney on discretion on the part of the prosecutor to make a recommendation to secure a conviction. Aside from going out and asking every prosecutor and defence attorney on every case, there's no way of compiling statistics as to how much that plays in these stats--or is there?
Director, Statistics Canada, Canadian Centre for Justice Statistics
What we can speak to with our data set are those factors we've presented here today, the three mitigating factors we have been able to look at to date. That's what our data set includes.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Right. So I guess there's no way of figuring out what a prosecutor, in offering something to a defence lawyer, might put on the table in order to secure a conviction. But we do know that no prior history of people pleading guilty as a matter of remorse under section 718 seemed to make up the bulk of these things.
The other thing, which I could finish on, that seems to be very clear from your statistics—you correct me if I'm wrong, because I want to make sure I'm getting through to the other side over there, to make sure my friend from Albert County, right across the river, is listening—is that the offenders who were given conditional sentences were under supervision or conditions, or however you want to put it, for longer periods of time on average than those who were given what the proponents of this bill might consider harsher sentences, i.e., probation and conditional sentence together or prison.
The term of the overseers of the population—the time they had to enforce conditions, many of which are built around rehabilitation, such as house arrest and community involvement and counselling and treatment and so on—was longer than if you were just to take the same offence and throw someone in prison.
I see your stats being something like—I know you're using terms like “high average”, and that threw me off a bit—453 days for a conditional sentence on average compared with prison of 47 days, which is a difference of about ten times.
Tell me how I've skewed that to my own benefit here.
Director, Statistics Canada, Canadian Centre for Justice Statistics
I'll refer you to the chart 13 that we prepared in the presentation.
This particular chart provides information on the length of supervision time that was attached to conditional sentences. Within the chart you can see a breakdown. You can see the average number of days attached when a conditional sentence was imposed on its own and also when it was imposed in combination with probation, and similarly, for a prison sentence and a prison sentence with probation.
What this chart doesn't have for you that I provided when I was giving an overview is that the total average days overall for conditional sentences was 453; it compared with 223 for prison. The 47 days refers to the supervision time for prison alone, on that graphic.
I'll also refer you to the optional conditions graphic we prepared in the package. For the jurisdictions where we had available information, you can see that there was a difference in the conditions that were attached.
I'll ask my colleagues if they would like to add anything to that.
Project Manager, Courts Program, Statistics Canada, Canadian Centre for Justice Statistics
I'll just repeat that when we put together the prison sentence population for this data set, we excluded all those that had a sentence length that indicated a federal sentence, so any of those that got two years or more were excluded from that population.
What this data set can't speak to is aggregate sentencing. So if anybody received two or three one-year terms on different counts and these were to be served consecutively, we couldn't factor those individuals out.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
On slide 14, there's a kind of funny question that I don't think you canvassed in your presentation. Why are the stats just from Nova Scotia and New Brunswick? And on slide 15, why are they just from New Brunswick and Saskatchewan?
Michael Martin Chief, Correctional Services Program, Statistics Canada, Canadian Centre for Justice Statistics
Right now, with respect to that survey, those jurisdictions are the only ones that are covered under these particular items.
The survey is being implemented; it's doesn't have full national coverage. What we've looked at is those jurisdictions that to date have provided data and for which we can answer those questions.
Bloc
Réal Ménard Bloc Hochelaga, QC
I'm trying to understand just who exactly received a conditional sentence of imprisonment. At the time the bill was tabled, one third of those sent to prison were jailed for unpaid fines. That's why judges had the option of handing down a conditional sentence.
If I understand correctly the statistics you've given us, according to slide 8, the individuals involved received sentences of less than two years and are serving their time in provincial penitentiaries. They are the ones eligible for conditional sentencing.
For example, does slide 8 show that 18 per cent of offenders who received a conditional sentence in 2003-2004, or who were ordered to serve their sentence in the community, had committed a drug-related offence? It isn't clear to me if their offence was simple possession of cannabis, trafficking or some similar crime, but the chart reflects the offence type considered .
Is my understanding correct?
Director, Statistics Canada, Canadian Centre for Justice Statistics
We have two slides that I'll refer you to, and we can look at conditional sentencing in two different ways.
Slide eight takes the conditional sentence population for 2003-04 and looks at its composition vis-à-vis an offence type. So of all the conditional sentences, over 13,000 conditional sentences, what proportion were for drug-trafficking offences? It's 18%. That's what the chart says. So 18% of the conditional sentences imposed upon conviction were for drug-trafficking offences, 11% for fraud, 10% for theft, and so forth. That's the data.
Bloc
Réal Ménard Bloc Hochelaga, QC
I see.
In essence, if we want the bill to be adopted, we must be convinced that the court did not properly use this tool, that is the conditional sentence of imprisonment. That's what I'm interested in finding out.
One of the many sentencing options available to judges is the conditional sentence. However, this type of sentence should not be imposed for certain types of offences. For example, it should not be ordered for offences of a sexual or violent nature, or for serious sexual offences.
Can you tell me how often, out of a total of 13,277 cases involving sexual offences, judges ordered a conditional sentence? In fact, slide 8 provides a compelling reason not to vote for this bill, because in my view, this sentencing option has been properly used. This sentence has been imposed in cases of drug trafficking, fraud and theft, but not for sexual offences.
Director, Statistics Canada, Canadian Centre for Justice Statistics
I'm going to refer you to slide seven, because the second way we can look at the offence type is to say, of a particular type of offence, what proportion--