Thank you, Mr. Chair, for the invitation to come and speak to you about Bill C-9. I'm happy to be here.
First, I'll give you a bit of background. The John Howard Society is a national charity made up of organizations that work with offenders to help them reintegrate into the society as law-abiding citizens. We have about 12,000 members across Canada who are engaged with us.
I'd like to acknowledge that the debate with respect to conditional sentencing is an appropriate one. It's very important for Parliament to be actively engaged in decisions about the use of discretion, and particularly judicial discretion, in sentencing. And the second point is that we're pleased to see that the bill before us, while it tries to restrict the use of conditional sentence, does not challenge its purpose or its objectives.
The question before us, as we see it, is a fairly simple one. The question is whether it is ever justified to give a conditional sentence for an offence where the maximum prison term permitted by the Criminal Code is ten years or more. If it is justified, then Bill C-9, which precludes conditional sentences in every such case, is excessive.
I'd like to talk to the question of the justification, and will do so, but I'd like to begin by just pointing out that over the last 30 years Canada and the United States have been engaged in a very substantial experiment in justice. Thirty years ago, in 1974, the incarceration rate in Canada was 90 per 100,000, and in the United States it was 149--very similar. Thirty years later, the incarceration rate in Canada is 108, up slightly, while the incarceration rate in the United States is 749. It's a 600-times increase in incarceration.
Over those years, crime has gone up and crime has gone down in both countries, largely in unison. In fact, if you look at murder, which is the best recorded, the murder rate in both countries has gone up and down dramatically over those 30 years at the same time, in spite of the fact we've got very different criminal justice systems.
No one benefits from inflated incarceration rates. Canada is much better off than the U.S., where enormous resources are diverted to maintain an inflated rate of imprisonment, while factors relating to their higher violent crime rates have largely gone unaddressed. The reason for Canada's lower incarceration rate is largely sentencing policy that guides sentences so they are proportional to the gravity of the offence and the degree of the responsibility of the offender, and are based on a presumption that the least intrusive measure will be used.
This raises the question: why have a principle of least intrusive measures? The reason is that no other principle makes sense. I had a conversation with one of the past commissioners of the Correctional Services of Canada, who was telling me of a situation in which their principle of using no more force than necessary was being questioned as to whether it was too soft, and his response was to say that we could change that, we could change it to use just a bit more force than necessary.
When we don't have the notion of the least intrusive measure, then we inevitably start moving towards a chaotic system. Least intrusive measure is not the same as popular levels of intrusive measures. When the level of intrusiveness satisfies everyone, then the harshest penalties become the norm.
The implications of least intrusive measure, if we're to have sentencing based on that principle, is that each case must be assessed individually before a sentence is passed; and secondly, options must exist that are less intrusive than is the norm for such offences generally.
Bill C-9 attacks these notions directly by precluding conditional sentences where the maximum term is ten years or more, and in so doing it precludes individualized assessments in the least serious cases or where the mitigating factors are strongest.
Secondly, it really prevents the courts from being able to justify and explain the sentences they pass, other than with reference to the legislation. The existing legislated limitations on conditional sentences, along with the substantial direction from the Supreme Court, are serious limitations. These limitations are reflected in the fact that only 6% of all convicted cases receive a conditional sentence. The existing restrictions effectively avoid the use of conditional sentences in clearly inappropriate situations, while avoiding rigid and arbitrary measures that conflict with the principles of sentencing.
Today, conditional sentences are being used cautiously and in appropriate cases. More than 50% of the cases are summary offences, only 47% are indictable, and the terms of sentences for conditional sentences are double those of prison terms that people might get. So they're being used cautiously. They're also being used in conjunction with penalties that make them very firm and punitive.
Finally, where cases arise that seem to be inappropriate, we have an appeal system of courts right to the Supreme Court. They have been active, they have reversed decisions, and they've added considerably to the limitations that are placed on conditional sentences. It's a system, I think, that works; it's also open and visible.
Our courts have acted responsibly, but our courts can not speak for themselves. Courts do not engage in public debate about their sentences, and therefore I think are easy targets. Bill C-9 promotes distrust in our judiciary, and that has serious consequences that must also be considered. If we cannot trust the courts with conditional sentence decisions, then where can we trust them?
Using a ten-year maximum term as the point of ineligibility will only introduce new areas of unfairness, without an appeal process to address those circumstances. The Canadian Sentencing Commission characterized the maxima in criminal justice as “unrealistic” and “disorderly”. They went on to say, “Little guidance for anyone can be expected from these maxima.” Presumably “anyone” includes Parliament.
Is it really that hard to imagine situations where a conditional sentence is appropriate for a theft over $5,000, for the theft of computer services, for theft of a credit card, for a break and enter, possession of break and enter instruments, or theft from the mail? Could we not imagine some circumstances where those would be appropriate?
In brief, it is our view that the purpose and principles of sentencing found within section 718 of the Criminal Code are substantially correct and should not be ignored or interfered with. The sentencing courts, with reviews through appeal up to the Supreme Court of Canada, are competent and the only bodies capable of establishing appropriate and just sentences.
Public confidence in conditional sentencing can not be achieved over the longer term through measures that depend on arbitrary and rigid sentencing rules such as those proposed by Bill C-9. Further, it's our view that research over many years has demonstrated that the deterrent effect of higher penalties is very unlikely to have a significant impact on crime rates generally, and particularly unlikely to have an impact on those who are typically being given conditional sentences.
The impact of Bill C-9 will be disproportionately felt by vulnerable people, based on income, class, ethnicity rights, and other factors beyond their control. The public perception of the justice system will be distorted by having discretion moved from the courts and judges to the prosecutors, for the decisions will not be apparent and will be melded into plea bargaining situations that are already viewed critically by many in the public.
Court proceedings and trials will become very expensive, consuming a great deal of time. Prison costs will go up substantially, particularly for provincial and territorial institutions, with estimates of as many as 4,000 or up to a 20% increase in provincial incarceration rights, in institutions that are probably the worst institutions in Canada. They're the most crowded, they have the fewest programs and services, and are the most dangerous in many respects. Many don't meet the minimum UN standards on the conditions of imprisonment.
Equally troubling is the substantial amount of money that would be spent with respect to this bill that represents lost opportunities in other areas, such as prevention and treatment, where it could be spent much more effectively to reduce crime generally.
It's our position that sentencing is an individual process that must reflect the specifics of the offence and the offender. The courts must have a full range of options available and the discretion to choose those that are most appropriate.
Conditional sentences cannot be applied fairly or appropriately under the restrictions proposed by Bill C-9. While some direction on the use of conditional sentences is appropriate, those limits should not undermine the good purposes of conditional sentences or unreasonably restrict the courts from using this option in appropriate situations in order to remain consistent with the fundamental principles of sentencing.
We do not believe that inflexible sentencing provisions can make the system more appropriate, effective, or principled. Our recommendation, therefore, is that Bill C-9 be withdrawn or, in the alternative, that measures intended to give greater guidance to the courts in the use of conditional sentence be consistent with the fundamental principles of sentencing. This would mean that the guidelines would be presumptive or advisory, but not mandatory.
Thank you.
