Justice Committee on Sept. 28th, 2006

[Graham Stewart]

If I could speak to that, Professor Paul Gendreau of St. Thomas University prepared a meta-analysis of studies on the effect of prison terms on recidivism for Public Safety and Emergency Preparedness Canada. He examined every study in North America over the last fifty years that met the criteria of being proper research. What he found was that there was not one study—not one—showing that longer terms in prison reduced recidivism. Generally there was very little correlation at all, but the degree to which there was a correlation, longer terms led to higher rates of recidivism—essentially confirming the notion many of us who work in prisons have that they are in themselves criminogenic environments.

If you take people who typically get conditional sentences who aren't criminalized in their lives and for many it's their first offence, and you put them through a process that first addresses the issues they have—often there are addictions and so on, especially alcoholism—you have much better potential in the long term than putting them into an environment that's inherently criminalized.

Then you have to go through the very difficult process of reintegration after a prison term. After you've been in prison, you've lost your community roots, your job, and your place in society. Coming back is very difficult, and none of those things increase the likelihood of success.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

Mr. Stewart, would you, and possibly the police officers as well, define recidivism? What are your limitations on recidivism? I've heard various definitions and I'm not quite sure.

[Graham Stewart]

The definition that was used here was the one the Department of Justice used when it made its briefing to you earlier, which was looking at that point at one year. Recidivism can be one year or ten years or it could be a lifetime. The point is that when you're trying to do these studies, you need a short enough period of time to know whether you're getting better or worse.

One-year recidivism is only good in comparing conditional sentencing to prison. What we find is that with prison, after one year there's a 30% recidivism, and with conditional sentencing there's 17%. So that's a dramatic improvement, and it's indicative that something worthwhile is happening.

It's not to say that after that year there's no recidivism, but we can say that recidivism drops the longer a person is out. So even from federal institutions, after two years in the community the recidivist rate drops quite substantially.

So mechanisms that keep people engaged in the community and allow them to have jobs, work, and so on have greater potential over the longer term, because they are not going through that isolation. The longer you can keep people supervised and productive in the community, the better your chances that they will not recidivate over the longer term.

[The Chair, Conservative, Art Hanger]

Thank you.

For the police department, is that basically the same rule on recidivism?

[Clayton Pecknold]

My understanding of recidivism has always been that a registered conviction would represent the recidivism rate. Of course, we in the policing community know that doesn't always reflect the actual criminal activity, but we live in a legal structure that measures it upon conviction.

Coming from British Columbia, I can inform this committee that we have something called a charge approval system, where charges actually have to be approved by crown counsel before they are proceeded with. We have that. They call it quality control. We actually have one of the lowest conviction rates across the country, and one would ask why. So there is, I suggest, a dark figure of recidivism that is immeasurable.

[Graham Stewart]

Could I just explain that a little further, then?

[The Chair, Conservative, Art Hanger]

Certainly.

[Graham Stewart]

No one knows, ultimately, what recidivism is. For one thing, we don't know until the person dies whether they recidivate. So you're quite right; we don't know about offences for which there has never been a conviction. All we can use this data for is a proxy to compare. Is the recidivism rate for people who have been through this process better or worse than those who have been through some other process? I wouldn't want to suggest that any number that's used is an absolute measure of lifetime recidivism.

[The Chair, Conservative, Art Hanger]

Thank you, gentlemen.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much. I think all of your input is important to our process here. I thank you for coming, and I hope I see you in other situations also.

I want to go over the way this bill is currently set up. As you are aware, in the last Parliament there was another bill that set up a different way of looking at a tightening, but not as extensive as this one.

Maybe I'll go first to Ms. Gray-Donald.

We have private members' bills coming forward in the House. A lot of them are in the vein of, because they think this bill is automatically going to make it through and be the law, “Well, let's just put everything up so it's now maximum ten years and we're going to get here.”

There's a thing of security and there's a sense of false security around that, and I'll take the example that you gave, the luring offence. There's a private member's bill coming up later this week or next week on that one.

Is it your understanding that if that gets into this category, that would mean there would be no conditional sentencing? I just want to see the depth of your organization's understanding of what would actually happen if that were the case.

[Krista Gray-Donald]

Sorry, just to understand your question, you're asking if it got into this bill by being raised to a ten-year maximum, or using the scheme that I proposed to use as a schedule--either?

[Sue Barnes, Liberal, London West, ON]

Let's just do the Internet luring. You said you wanted it in here. Is it your understanding, then, that it would automatically preclude a conditional sentence on that offence if this were in the bill?

[Krista Gray-Donald]

Yes, but it wouldn't preclude the other types of sentences that could be handed out--for example, probation.

[Sue Barnes, Liberal, London West, ON]

Okay, that's the misinterpretation I'm concerned about, because there are many offences that are captured if you list the offences under that bill.

Let's just presume Internet luring was part of this list currently. It's a hybrid offence. If you have a hybrid offence, under the way this bill is currently drafted, that does not preclude the judge from giving a conditional sentence.

[Krista Gray-Donald]

And that is a problem we do have with the bill, especially with respect to offences that can be violent or sexual in nature, luring being one of them, sexual assault being one of them, or criminal harassment. We think that also needs to be addressed by the bill, that those offences, if tried summarily, can't be eligible for a conditional sentence.

[Sue Barnes, Liberal, London West, ON]

Okay, I just want to go to the chiefs of police association: is that your understanding too?

[Clayton Pecknold]

It would be my interpretation of the bill that if it proceeded summarily, then a conditional sentence would be available.

[Sue Barnes, Liberal, London West, ON]

Certainly. So my point to you as a victims organization is that just by having it listed or captured, if it's a hybrid that's not, the conditional sentence on the discretion of the judge would still be there. I just want to make sure that people understand that, that there are still many of the offences in here, not just in the drug category, but in the way this bill is currently set up. And I think it's a fault of the bill, too, because I think there's a miscommunication around some of these issues to the public that is deceptive. So I'm just clearing that one up in particular.

[Krista Gray-Donald]

We understand that, and we feel it needs to be addressed.

[Sue Barnes, Liberal, London West, ON]

If you've gone through this list—and I can put this to all of you—do you think that, for instance section 340 of the code, destroying documents on file, which has a ten-year maximum.... Is that something you think should be part of this?

I'll give you a couple of others: stop mail with intent; instruments for forging or falsifying credit card; public servant refusal to deliver property; criminal breach of trust; theft over $5,000; drawing a document without authority; obtaining an advantage based on a forged document—that could be somebody using a false ID to get into...I don't know, to take a ride on a train or something that requires a pass....

These are also captured, and when I hear your testimony as an advocate for victims, I'm not sure this would be in your catchment area of concern, but it is in the catchment area the way the bill is currently drafted.

Are these types of property offences—and I'll categorize them as that—a matter of concern for you?

[Krista Gray-Donald]

There are property offences that fall under the bill that are appropriate for conditional sentence. We recognize that, and we don't think offences such as the ones you listed should be made ineligible for a conditional sentence.

[Sue Barnes, Liberal, London West, ON]

Okay. Thank you.

I'd like to hear Mr. Stewart on that, and also the other witnesses, please, Mr. Pichette or Mr. Pecknold.

[Graham Stewart]

When we submitted our brief, we presented a table of some offences that are both eligible and ineligible. In each case the offences we selected were ones that we thought raised serious questions. Some of the offences that are eligible.... For instance, obtaining valuable security through fraud is eligible—it's a maximum of five—but theft of a credit card is not. It just seems to me that in the real world, those circumstances could easily be reversed in seriousness and be inherently unfair. There are many examples of that.

Our position is not that everyone should get a conditional sentence; ours is to recognize that a conditional sentence is a midway and intermediate sentence. Ours is simply that maximums are a very poor way to select the seriousness of the crime—

[Sue Barnes, Liberal, London West, ON]

Absolutely.

[Graham Stewart]

—that the seriousness of the crime has to be examined on the specifics of what happened: not just the offence that occurred, but the responsibility of the defendant. The Supreme Court has been very clear on that. In a number of decisions it has said that anything other than that becomes arbitrary.

But I think it also denies common sense. If we want to have a sentencing system that has a potential to make sense to most people, then it has to be individualized, and that's our position; not that all of these should or shouldn't be included. I'm sure everybody in Canada has their list, but the list we're being presented with is one that was never developed with this in mind.