Justice Committee on Sept. 28th, 2006

[The Chair, Conservative, Art Hanger]

Would the police association, the chiefs of police, have anything to say about that?

[Pierre-Paul Pichette]

I would like to approach that from another angle, Mr. Chairman.

We do not monitor individuals who are given a conditional release. On the other hand, we are aware that if you act on our proposal, the trial process will change. The system as we know it now, in terms of agreements between defence and Crown lawyers, will probably change. According to our estimates, officers involved in investigations are likely to have to spend 30 per cent more time in court.

Having said that, although we believe it could be more labourious for a police agency to have to prove an individual's guilt, the position we put forward earlier is the appropriate one.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Pichette.

Mr. Murphy is next.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

First of all, I want to thank the witnesses for their evidence. We did receive the handout from the John Howard Society. I noticed that the other parties were referring to some text. It might be quite helpful to us, if it didn't impinge on your rights, to give us copies of those, which the clerk could distribute. There were some figures in there that were quite interesting.

There has been a lot of talk and concern about the victims. I think that's fair game; we're concerned about them as well as the criminals. In that light I would defer mostly in this line of questioning to you, Mrs. Gray-Donald, relative to whom you represent and how you get your information.

I feel the passion and the emotion of what you said--I represent a community, and I mean, it's all through Canada. I was wondering if you could give us a brief overview of your clients: who they are; how they come to you; how you determine, when you make a statement, that you have statistical, objective evidence to back it up, because we do all understand and feel the emotional, subjective side of it.

[Krista Gray-Donald]

The clients who come to our office are generally victims of serious crime, which includes assault, domestic violence, and homicide. Some of those by nature are excluded from the scope of this bill.

We do, however, speak with a number of clients who approach us through contacts with VWAP offices and police-based victim services. That's how they come to our agency, and also through the Internet. We have a fairly large web presence, and our website is fairly well regarded. They come to us, and most of the evidence, yes, that I present is anecdotal. Each case is individual, and the victims present their perspectives individually.

There have also been some studies done. Julian Roberts and Kent Roach did a questionnaire on the victims' perspective on conditional sentencing. Unfortunately, I don't have a copy of the questionnaire with me, but it was published recently. It gives some of the information in the last year or so.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I thank you for that.

This question is to the association representing the chiefs of police. Likewise, we understand that your charges--the people you work above, I guess--are front line. They were here last week, the actual police association, talking about their front-line experience. Again, we accept the subjective passion and the real-life stories. We do accept that. That's obviously very telling for everybody on this committee--but would you help us with any studies or statistics that you have regarding the efficacy of conditional sentences or other forms of sentences in preventing crime from happening again through the same customers?

[Clayton Pecknold]

We use the Canadian Centre for Justice Statistics, from which you had a presentation on September 21, I believe it was. I'm not aware of any specific studies with respect to that, Mr. Chair, but I did note on page seven of that report that at least one in five drug trafficking and sexual offences received a conditional sentence. I found that remarkable, especially coming from a province where drug abuse is very much a topical issue.

So I can't offer you an answer directly, but I think there are some stats out there from which you've benefited that, looked at holistically, would perhaps tell you there's some inappropriateness with respect to conditional sentencing.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, I'm glad to hear we're all working from the same stats, which are not flawed, but not as complete as they could be. That's pretty much what I'm hearing, that those stats we got last week are what to work from.

What I'm looking at is the aspect that the average conditional “sentencee” is under supervision for something like 400 or more days, and the average imprisoned person is under supervision, in the literal term, of about 30 days. I'm rounding the figures.

Is it not better to have a bad person, who can be—of course, I want to defer to Mr. Stewart on this—rehabilitated, we hope, under some form of the eye of the public for a longer rather than a shorter time? In the imprisonment situation, getting to the victim's point of view, the offender who is incarcerated generally is out without any supervision or monitoring quicker.

[Graham Stewart]

The experience we've had in Canada, particularly as documented by the Correctional Service of Canada, is that the process of reintegration through supervision of federal offenders over the last 20 years has shown a continuous improvement in recidivism rates. There is good reason to believe that supervision in the community has much greater effect, in terms of reintegrating a person, than simply locking them up and releasing them.

In the data you've received, for instance, you'll notice that the recidivism rate for those on conditional sentences was 17% over the next year, whereas with prison it's 30%. But that's the year following the completion of the sentence. As you point out, many people on conditional sentences are serving 700 days in the community before their sentence is even completed. So there's good reason to believe that conditional sentences are very effective.

We're also aware of the fact that people being selected for conditional sentences are selected, in part, because they're considered to be low risk. So we have to put that into perspective.

But in the end, if we're trying to determine what is the best cost-benefit situation for reducing crime, then it's very difficult to make a case for imprisonment over conditional sentencing—for the cases that are receiving conditional sentences.

[The Chair, Conservative, Art Hanger]

You still have some time.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Good.

The $1,742 figure, I think it is, has come under some scrutiny here. The assumption is that it's so woefully inadequate that there is absolutely no level of supervision and that it's completely ineffective in enforcing the conditions given by a judge. There are two points there that I would certainly ask Mr. Stewart about.

Given the proper resources, do you feel that proper supervision could be undertaken? And moreover, do you have any indication that the level of supervision is woefully inadequate? So far, it's an assumption, “Oh well, at $1,700 it couldn't be very much.” That's an assumption. From what I read in the statistics, the breach of conditions is not at a 95% rate. People do not end up back in court for the breach of conditions in 95% of the cases; it's a very small percentage of the cases.

There will be the arguments that if a tree falls in the forest, you don't hear it; in other words, if people are out there breaching something and there's not enough supervision, it doesn't get detected.

I see the good police chief nodding to that.

But where's the meat in the sandwich here? Where is the proof that $1,700 is inadequate? I bet that when we have some probationary people here, they're going to say they're doing very well, that they could always use resources but are doing very well.

What would you say, Mr. Stewart?

[Graham Stewart]

I would say first of all that this is an average figure that includes, as I understand it, both probation and conditional sentencing. I think if you were able to break those figures out, you'd find the supervision costs for conditional sentencing are often quite a bit greater. Indeed, the intensity of the supervision is greater. Many are under house arrest; many are on electronic monitoring, which in itself is highly structured—and it's something that can be monitored.

There's no one who will say they have too much money. There's no one who will say they can't enrich their service. Indeed, the prison system, I think, is also feeling that they have a tremendous shortage of resources. I haven't heard the argument that we shouldn't send people to prison because there are inadequate resources there.

Community supervision is inherently much less expensive: we're not feeding people; we're not watching them 24 hours a day; we're not having to engage them in programs. We use community services: people can go to school in the community—we don't have to provide a school, as you do in prisons—you have community health access. You have all these sorts of support services that you have to provide in a prison, which have nothing to do with rehabilitation, nothing to do with changing behaviour but are just the cost of running a prison.

So I think you should reasonably expect that community supervision is much less expensive than prison. Whether $1,700 is the right figure, I don't know. But I don't think that's the basis on which we should be sentencing people.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I want to suggest that you kind of referred to a study regarding the deterrence rate, that the deterrence factor in sentencing is much less effective for people who normally get conditional sentences. Is that from the same studies that we got last week, or it is something you have that's different?

[Graham Stewart]

What I was saying is that the evidence of deterrence generally with crime is quite weak, but I think there's good reason to believe that with conditional sentencing it's even less, primarily because those who are selected for conditional sentencing are usually selected on the basis that they feel substantial remorse. They are seen as low risk by the court. They've already been identified as unlikely to reoffend, so recidivist rates among those who are unlikely to reoffend is low.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

You don't have any studies for that? That's just sort of a logical extension.

[Graham Stewart]

That right. It's a logical extension.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Okay.

Thank you, Mr. Hanger.

[The Chair, Conservative, Art Hanger]

Mr. Murray and Mr. Stewart, thank you.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I would like to explore with you a situation that I find somewhat paradoxical.

We are being asked here to pass a bill that will, in one fell swoop, add more than a hundred new offences. That would mean that people could be given conditional sentences, still on the basis of the parameters set by the Supreme Court in the Proulx ruling, which says that the use of such sentences must not represent a danger for the community, that the offence give rise to a sentence of less than two years, and so on.

Mr. Pichette, you are absolutely right to bring to our attention the fact that logically, most people, based on pure common sense, would agree that individuals who have been involved in organized crime at the highest levels should not be serving their sentence in the community. But by raising this question, are you not pointing to the absurdity of this bill?

In order to meet the goals that we set for ourselves as a society--in other words, people who have been involved in the most serious criminal acts should not necessarily be in the community--is it reasonable to simply include all offences punishable by a term of imprisonment of more than 10 years and use the 10-year threshold across the board? That would mean including offences related to counterfeiting, but also homicides and the most serious offences.

Would it not be preferable to amend section 718, which sets out a framework for the judiciary to use for the purposes of sentencing? That is the position of the Bloc Québécois. Should there not be a specific reference to individuals who have been involved in criminal gangs? We were both here when that whole public debate occurred.

This question is addressed both to the chiefs of police and the other witnesses. Are you not concerned about the idea of having a single threshold--namely offences punishable by a term of imprisonment of 10 years or more? Is this lack of nuance not in fact the kind of thing that we, as legislators, cannot afford? Is there not something worrisome about this way of approaching the criminal law?

[Pierre-Paul Pichette]

Our reasoning in that regard, Mr. Ménard, focuses on two points. First of all, there is organized crime. I think we have made our point in that regard. The second issue is violent crime or violence associated with the commission of a crime. That is what we believe to be particularly compelling.

What I can say is that of the clauses we have reviewed in preparation for this presentation, although I may be mistaken, most seem to relate to crimes where violence is associated with the commission of the crime. If that were not the case, I would agree with you.

For example, our colleague from the John Howard Society of Canada listed a number of offences earlier that probably should not be on the list. But I do believe that the whole issue of the use of violence in the commission of a crime should be part of our thinking in this regard.

[Réal Ménard, Bloc, Hochelaga, QC]

Before asking the John Howard Society to comment, I have one last question. We have no information with respect to the recidivism rate. I hope we will get some before moving to clause-by-clause consideration of this bill.

Do you have any information about courts or judges who, when dealing with cases involving serious violence, have handed down or permitted sentences to be served in the community, even when that could be considered an affront to common sense? In terms of available sanctions, we all know that this is a marginal occurrence that accounts for only about 6 per cent of sentences and affects a little less than 34,000 people.

Have any of you any information to suggest that there have been abuses and that, in cases that could be seen as an affront to the collective conscience, the courts have a general tendency to use this tool inappropriately? I'm talking about a general trend here. Judges may make poor rulings; we are all aware of that, but I think that it is with that in mind that we should cast our vote.

[Clayton Pecknold]

No, not specifically, Mr. Chair, but I would reiterate that the statistic that really struck us was the one to do with one in five drug trafficking and sexual offences.

I suppose it depends on your definition of violence. One could look at it in the strict sense of direct violence, person on person, or one could look more generally, as we do, at the violence this perpetuates on society as a whole, including, of course, organized crime, as it does as well, and on down the street.

That would be the only point I'd make in response.

[Graham Stewart]

I want to make the point that when I gave my presentation, I identified a number of offences that I thought were included that I thought could easily...or one could easily imagine a circumstance where a conditional sentence would be appropriate but is excluded by this bill. The other witnesses identified offences that are included as conditions for conditional sentences that they thought should not be. I think that speaks to just how inappropriate it is to use ten years maximum as an arbitrary process. That makes sentencing very arbitrary.

The only maximum sentences developed in the Criminal Code were never developed with this kind of use in mind. That's why the sentencing commission rejected them as a useful tool in the sentencing process.

It seems to me that if we want to have a system that makes sense, we have to let people make the decisions. If we try to do it with an arbitrary rule, we'll always have cases, one way or the other, that seem to be irrational.

[Réal Ménard, Bloc, Hochelaga, QC]

Allow me to ask one last question.

It is a little misleading to say that one offence in five where people were eligible for a conditional sentence is a drug-related offence. Let's take the example of a young person who is arrested with a cannabis joint in his possession and ends up before the courts. It is not totally irrational, in terms of the administration of the criminal justice system, to think that such an individual could end up in the community. So, I am not prepared to conclude that because one offence in five resulted in a conditional sentence that this can in any way be seen as reflecting abuse of this type of sentence.

Do you share my views in that regard? I think our analysis in this regard has to be a little more rigourous.

[Clayton Pecknold]

The statistic was one in five drug trafficking offences, I believe, so I would agree with you it's simple possession. But drug trafficking, I would suggest, is a higher-order offence.