Justice Committee on Sept. 28th, 2006

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chairman.

My question is addressed to Mr. Pichette, and perhaps to Ms. Gray-Donald. I will come back to Mr. Stewart after that.

I would like to say right off the bat that I am a member of the new Conservative Party and that, although people don't believe it, we do feel compassion for victims. That is the whole reason behind Bill C-9.

I particularly want to thank Mr. Serge Ménard, because he was my Minister of Public Safety. He worked on very important issues. I'm sure you remember the gang wars, involving the Hell's Angels. Heaven knows you certainly got more than your share of it in Montreal. I also know that he was very tough in terms of the decisions he made as Minister of Public Safety. The gang war that took place in the Montreal region was linked to the drug trade, and to what is known as territory.

Although it may not seem violent at first glance, drug trafficking is extremely violent. Drug traffickers create demand among young people. The small joint that is passed around ends up becoming one joint a day, and then one joint an hour. And young people get their supply from organized groups and drug traffickers.

What crimes do they commit? Well, because they don't have enough money, they start by committing robbery. Then they get involved in breaking and entering. The 65-year old lady who is robbed at home is not amused when that happens. Then comes conjugal violence, because of or the other has spent money. They fight, and you know what happens after that. And there's also prostitution. We were talking about mail theft earlier. Welfare recipients in my province end up having their monthly cheques stolen. These people change their identity in order to be able to cash it at the corner store and then go and buy drugs.

How do you expect a person who is 65 years of age to protect herself if she lives in the country and, as is very often the case, it's someone with links to her own family? No crime is really minor. It all depends on who the victim is and when the crime is committed.

I was surprised yesterday to hear it said that 40% of the drugs are entering our prisons. These are people who are locked up and under 24-hour surveillance. And yet 40% of the drugs are entering the prisons. A drug trafficker who has been given a conditional sentence is sitting at home and has nothing better to do than answer the telephone. And with all the electronic and telephone options available today, he could just as easily do that from a bar in the neighbourhood and say that he is at home.

We have been saddled with a ridiculous system. We're told that a person under surveillance costs $1,742 a year. But have you thought about what is made possible as a result of that money? Ridicule may not be fatal, but almost.

Something intrigues me here. Two or three days ago, in the Montreal region and elsewhere, at Pierre Elliott Trudeau Airport and other airports, we heard that drug traffickers had threatened employees who are police officers, and that they bribed even the employees responsible for security. This involves all the airports, the one in Toronto, the one in Montreal or those in British Columbia, where there are also ports that have been infiltrated by criminal groups.

Drugs are streaming into our country and creating all kinds of problems. We practically have to get down on our knees and beg the members of the Opposition to vote in favour of Bill C-9, so that drug traffickers can no longer enjoy the freedom they currently have. I'm wondering whether Bill C-9 is not an indirect way... We've seen this, and we could review all the crimes. Each one has its specific pros and cons.

[The Vice-Chair, Bloc, Réal Ménard]

Mr. Petit, you have already used up five minutes of your time. I am certainly inclined to be generous with you, because I realize that you feel passionate about this, but I would ask that you move directly to your questions.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is addressed to Mr. Pierre-Paul Pichette. You heard my preamble, but I would like you to tell me whether Bill C-9... I know what your opinion is, but I would like you to elaborate further with respect to drug trafficking, if you don't mind.

[Pierre-Paul Pichette]

I'm sure you understand, Mr. Petit, that I can't talk only to drug trafficking. I have to respect the logic of what has been tabled with the Committee. Our focus is on organized crime.

I have to say that you are right. Drug trafficking is one of the illicit activities carried out by a number of organized crime groups. That is why we are suggesting that when you reach that stage, you consider including organized crime

You talked about the phenomenon of drug trafficking. We can also talk about women or men who are controlled for the purposes of prostitution. They are also controlled by organized crime families or associations.

I understand what you're saying, but I believe that our position, which advocates an approach to organized crime as defined by the usual provisions, is the most appropriate.

[The Vice-Chair, Bloc, Réal Ménard]

Are there any other comments from our witnesses? I will have a very brief question after that.

[Graham Stewart]

I think there's a problem when we talk about drugs in such absolutes and say that people are either traffickers or victims. The traffickers plunder others, who become victims by using drugs. The fact is that most drug traffickers who get caught are in fact drug users. Once you start using, that's one of the ways you maintain your habit. It becomes a lot more complicated than just absolutes.

The fact is that four out of five people who went to court did not get a conditional sentence; they were sentenced to jail. That suggests to me that with drug offences, just as with every other criminal offence, you get far more of the low-level offences than the high-level offences. Higher-level offences are harder to investigate; there are not as many of them.

That one-in-five statistic doesn't strike me as surprising, particularly when you recognize that to actually deal with the addiction, 700 days in the community with access to treatment under intense supervision is more likely to bring about a better result than 47 days in jail in the kind of environment you described.

I think we have to not be so absolute about this.

[The Vice-Chair, Bloc, Réal Ménard]

Thank you.

You have the floor, Mr. Lee. As most Committee members had seven minutes of speaking time, that is about the amount of time you will have available to you.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you.

I appreciate the evidence and the perspective you've offered here today. One thing that's becoming increasingly clear--and I'll ask our police chiefs if they agree--is that this bill appears to be an exercise in untargeted denunciation. In other words, we don't like the look of people not doing hard time so we're going to remove an instrument that would divert some of these people from hard time. I think one of you gave evidence earlier that you and/or the public don't like the look of offenders showing up on the street soon after.

Wouldn't you agree that this whole exercise of using this ten-year maximum threshold--this inexact, rough, untargeted, arbitrary, imprecise instrument--in the bill is maybe wrong-headed and that we should be looking for another method of defining those offences that should be excluded from the conditional sentencing option?

[Clayton Pecknold]

I doubt very much, Mr. Chair, that I'd agree with all those adjectives. I think it's a reality of the Criminal Code that trying to take a broad-brush approach with certain provisions runs into anomalies such as as we've suggested with respect to the criminal enterprise provisions.

I would differ on the issue that it's just that we don't like the look of it. I would say that the public's faith in the justice system goes to the very core of its accountability and the very core of a pillar of our democracy.

We who work in it every day can tell you that the public's faith has generally been shaken in many ways and from many different aspects. It isn't simply a superficial aspect that we don't like the look of it; it goes to the sense of one's feeling that the state has interjected and supported them when they have been the victim of a violent crime.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

A previous bill in the previous Parliament made an attempt to identify a category of more serious offences that should be exempted from the conditional sentencing option, and that bill included.... I want to find out what your reaction is to this little list I'm going to give you. It's a short list: a serious personal injury offence, and it's defined; a terrorism offence; a criminal organization offence; and an offence in respect of which, on the basis of the nature and circumstances of the offence, the expression of society's denunciation should take precedence over any other sentencing objectives.

Do you think the list and those words define adequately what we all think this bill is trying to do here? Could we be more precise, or have I left something off the list? I didn't mention any drug offences, unless it's a criminal organization drug offence.

[Clayton Pecknold]

It would be difficult to answer with precision without reading the definitions of personal injury offence, etc., etc., but for all of the above, certainly in our view we wouldn't support a conditional sentence. Whether there's anything excluded, I don't know.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Okay, so from your point of view, that covers at least part of the territory from a public interest point of view, which we're trying to get at here—even though the list may not be complete.

[Clayton Pecknold]

It would appear to.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I have a question about how police lay charges when there is a hybrid Criminal Code offence, because I'm not exactly sure. In the sections that we refer to as hybrid sections, it's a Criminal Code offence where the person may be prosecuted by indictment or by summary conviction. There are a half a dozen to a dozen of these hybrid offences in the list that would be caught by the current government bill.

Can you tell me who makes the decision to proceed by way of summary conviction or indictment? Is it the policeman who investigates the offence? I want to find out how arbitrary or how calculated the decision is to proceed by way of indictment or by way of summary conviction.

[Clayton Pecknold]

It would depend on the jurisdiction. For example, in British Columbia, as I mentioned, we have a charge approval system, so the police would submit a report to crown counsel and recommend a charge, but not recommend whether to proceed by indictment or summary conviction; crown counsel would make that decision. In other jurisdictions where I policed when I was in the Mounted Police, I actually made that decision, but then the crown always reserved the right to proceed by way of indictment or by way of summary conviction. Often, as a young constable, I'd proceed by way of indictment, but they'd proceed by way of summary conviction. I don't know about Montreal.

[Pierre-Paul Pichette]

It's the same situation in Quebec. It's always a discussion between Crown counsel and the police officers who lay the charges.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

So in some jurisdictions it will be with the advice of a crown prosecutor, and in other jurisdictions you may have police officers making that decision about whether to go by way of summary conviction or by way of indictment. If we were to leave this bill the way it is, we would have those—I would use the word “arbitrary”, but I don't want to call judgments by police officers arbitrary, because they're trying to make the best judgment they can.... But from the point of view of the justice system, without any guide to the police officer making that decision, it might be labelled in some contexts as arbitrary vis-à-vis the procedure.

Would you accept my suggestion then that those decisions could be viewed as arbitrary and would exclude some offenders from conditional sentencing, based on the current government bill?

[Clayton Pecknold]

I don't think there's a jurisdiction where a crown counsel wouldn't review that, and they would not necessarily proceed differently from the police officer who may have laid the charge originally.

[The Vice-Chair, Bloc, Réal Ménard]

Thank you.

We have two last speakers before adjourning today's meeting. They are Ms. Gallant and Mr. Moore.

Ms. Gallant, do you still wish to speak?

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

Thank you to the witnesses for your testimony. I found it most useful.

Don't feel bad about not having all kinds of statistics, because that's not why you were invited. I don't know why the opposition continues to ask for these statistics; these are not the bodies that gather all kinds of statistics. You're here to represent the chiefs of police, victims, and the John Howard Society. I wouldn't expect that you would be able to thrill us with all kinds of national statistics.

What I am interested in is your perspective in representing victims, front-line police, and chiefs of police. We hear stories as members of Parliament. Ms. Gray-Donald, who happens to be a constituent of mine, referred to a situation--her mother appeared as a witness before the previous government on the voyeurism provisions--and those anecdotal things are very important.

Mr. Lee said that we don't like the look of people doing hard time. That's not the case at all. The fact of the matter is--and Mr. Pecknold mentioned this--the public is losing faith in our justice system. We have to have faith in our justice system. I think that's so important. We are acting to restore that faith.

The opposition says that this is perhaps arbitrary. Well, in each of the offences that are enumerated here, previous Parliaments set a maximum of 10 years. That's somewhat arbitrary. Maybe some of them should be 10.2 years or 9.6 years maximum, but someone drew a line at 10. We're drawing the line that when proceeding by way of indictment for these offences that Parliament considers serious that an individual not serve time in their community, that we actually bring that denunciation and that deterrent into our justice system so that they have to serve some time in prison.

Can you give me a bit of the perspective from a victim and from the police? From the victim's perspective, how do they feel when they've been victimized and the person is serving time in the community where the victim lives? For the police, how do your officers respond when you've done the hard work to bring someone to that point, you've done your job, and then you find out a week or two later that the person you thought was going to be put away for a serious crime is back in the community?

[Krista Gray-Donald]

It does depend on the nature of the offence, but predominantly the emotions that victims describe to our organization centre around being let down by the justice system. They feel their perspective is not taken into account and that the gravity of the offence and their suffering is not taken into account in handing down sentences. There was a case in Orangeville recently where a woman was sexually assaulted by a friend of her husband. He received a conditional sentence. Although there was no penetration, she was sexually assaulted and she did have many of the associated side effects. She felt a conditional sentence did not meet the consequences of the actions.

Another emotion we commonly experience, especially in cases of domestic violence and sexual violence, is fear. The victims do not feel that any consideration has been given to their safety by allowing an offender who has assaulted them, or an ex-spouse who continues to threaten or harass them, into the community. They feel those concerns are not taken into account, whereas if they are incarcerated, they cannot be followed, they cannot be parked in front of their house, and it's much less likely they'll get threatening phonecalls. All these things can happen unchecked while someone is on a conditional sentence.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

[Pierre-Paul Pichette]

Mr. Moore, we encourage our police officers to bear in mind that they represent the first level of the judicial process. Ideally, they should not feel any resentment as to what is to happen next.

However, as I said earlier, for some types of crimes--and I used the example of car theft--we are at the point now, at least within my own police service, where we view them with a certain amount of cynicism. Given the number of people who are charged with this crime and the type of sentence they receive... We see these same individuals out on the street the next day. For police officers who end up seeing them again and have to arrest them once more for the same type of crime they were involved in days or weeks before that, it becomes rather repetitive. I won't go as far as to say there is disengagement, but they end up wondering whether they shouldn't be doing something else.

That situation has consequences that we are seeking to minimize, but it is absolutely essential--and I think this is really the message we want to leave with you today--that the provisions of the Criminal Code give equal weight to the concerns of the public, the victims, the accused and the police officers who enforce them, and that there be justice for all. If we can say that is true at all four levels, I think we will have met our goal. But at the present time, as regards some offences, both in my opinion and based on my own experience, we are not meeting that goal.

[The Vice-Chair, Bloc, Réal Ménard]

You may ask one last, brief question.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you.

That is what we're trying to restore. We feel that the scales of justice have tipped too far, and we have to take into account the public's feelings, the public's faith in the system, and the rights of victims.

There's always a lot of talk about cost. It might only cost $1,400--that's the average--but that's the most simplistic way to look at it. What's actually being done? We know that $1,400 over the course of the year is not going to buy a lot of supervision. We heard testimony the other day about offenders who forward their home phones to their cell phones--perhaps you've heard of that. So we have to look at protection of society. We're trying to achieve that balance here in some way and move the scale in that direction.

I wonder if you can comment a bit on the cost generally when someone who's on a conditional sentence is out in the community reoffending. If that person is in prison they're not reoffending, but if they're out on the street and continuing to steal cars, I want to know if anecdotally--