Justice Committee on Oct. 2nd, 2006

[Lorraine Berzins]

I think people in the churches we work with want solutions that really work. Every congregation in every church knows that it has, within its own midst, not just the people who are the victims but also the people who are the offenders, the families of both, and neighbours of both. The people who really know what's happening in a community are not satisfied with just a solution that sounds okay in the headline. When the court case is over and the headline is yesterday's news, people are still victims of crime and afraid of crime. There's a very important stake for the whole community to make sure the solutions we do get are solutions that work. The ones that are being proposed are not going to work.

[The Chair, Conservative, Art Hanger]

Thank you.

Mrs. Prober, go ahead, please.

[Rosalind Prober]

I just want to put it on the record that Beyond Borders supports all the groups who are working with sex offenders. There are some wonderful community groups out there that work with sex offenders. I'm not taking away from what they do in any way.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Loewen, go ahead, please.

[James Loewen]

It seems that if you're going to challenge anybody it would have been me, considering that Vic Toews is ostensibly from my faith tradition, the Mennonite faith tradition, and is responsible for this bill. Yet, here I am speaking against it.

What that shows you is the diversity that can occur within a particular faith tradition. I can say that I know hundreds of Mennonites who are putting their faith in action by volunteering in circles of support and accountability, by giving their lives to work with victims, to work with offenders, and who recognize the complexity of the issues in front of us. They have a wide range of ideas too. They would certainly expect this government to take the time to do the right thing given the evidence that is before you. That's all we can expect.

[Myron Thompson, Conservative, Wild Rose, AB]

I didn't realize that connection between you and the minister, but I didn't get an answer. I was wondering, what group of people decide on the recommendations you've made on Bill C-9?

[Lorraine Berzins]

The church council has a board of directors that has representatives from each of the denominations that are officially designated by the denomination to work with us. We work as well with other people from those churches and from the community at large. We meet often to discern together.... On the basis of over 35 years of experience, we know the criminal justice system and we know of the work being done by a lot of people, like the Mennonites and many of our churches in the community. Our concern is what people are experiencing in the community, how life can go on, how a community can truly be a community where people can recover from what has happened and make sure it doesn't happen again. We take that very seriously.

What more do you want to know?

[Myron Thompson, Conservative, Wild Rose, AB]

I just wanted to know the size of your board that would sit down and make the decision on Bill C-9. I expect it's a handful of people, representatives of these--

[Lorraine Berzins]

Well, there's been a process of consultation. There are ten directors on the board. There's also a larger membership, and we've been working closely with a volunteer committee of people from our board and outside our board, but affiliated with churches, to try to discern what the right direction is.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you.

[The Chair, Conservative, Art Hanger]

Mr. Murphy.

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

Thank you.

I'll be fairly brief. I want to apologize for missing part of the hearing. Mr. Moore and I were in the House, disagreeing on things.

I want to thank you for what I've heard. I'll ask some fairly short questions.

At the risk of agreeing with Mr. Thompson, I have a hard time understanding that the church--the one I belong to anyway, the Catholic church, probably doesn't get out of the foxhole of morality too often into the secular world, unless it's perhaps for gay marriage issues. But I don't think I could say that this is the position of the Catholic church, could I? I think what you're saying--correct me if I'm wrong--is that the churches that are listed are saying that they're for the concepts of restorative justice, that they're for the concepts of forgiveness and rehabilitation. I'm sure that's where they are, but you can correct me if I'm wrong.

Does the Catholic church support Bill C-9? I don't know if they've made a position known on this. I'd like to know, because sometimes--

[Lorraine Berzins]

The Canadian Conference of Catholic Bishops was a co-founder of the Church Council on Justice and Corrections over 35 years ago, and they continue to support us a great deal. They count on us to help them do the analysis required around criminal justice issues. And they definitely have been in support of the positions we've taken in the past. There is a regular feedback loop to discern with them and have them come to our meetings and talk with us about these issues.

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

All I'm saying, again, is that it might be helpful if we thought--and I don't think Mr. Thompson and I in any way agree. If we do agree, I don't think we think this is necessarily the position of all the churches listed. If there's some supplementary information you have, and you get a big imprimatur from a bishop, it might have some influence. But I'm only saying I appreciate your comments.

I really do want to get to the professor here on the Criminal Code.

I read your paper, and I'm trying to understand what the cure is. The cure seems to be some simple amendments to the sentencing parts of the Criminal Code, as directions to judges. Notwithstanding your good words about their use of discretion and notwithstanding your preamble that says it's pretty much working, you're kind of saying in the back end of it that we should give judges direction that on certain offences there's a presumption that they are not to use a conditional sentence. And there's a prerequisite, or a priority triage, where these crimes are set out. How easy do you think it would be in that first step--I guess I said “last”--the prioritization of offences?

You mention sexual assault and offences causing serious bodily harm as two examples. Joking aside about fishing trawlers and cattle, we've had a lot of discussion here about how a home invasion might be something that forever frightens a person from being part of...and so on. That's my question.

It sounds very simple when you say it, when you write it, but how much better would it be than the old hodge-podge, 150-year-old Criminal Code solution that we have now? How much easier would it be?

[Prof. David Paciocco]

It's certainly better than taking the antiquated historical list of ten-year maxima from the code and simply using that. What it does is it requires a contextual evaluation to be made in each case, and it would be consistent with discretion, but constrained discretion, to use presumptions. That's really how the criminal justice system operates. There are times when we don't know the right answer or the wrong answer to questions, and the real issue is on which side do you want to err? Who has the burden of proof?

If you put the burden of proof on the accused to demonstrate that there's something exceptional in the circumstances to justify conditional sentencing, then in your typical case you're not going to have it. But if you remove the discretion entirely from judges--and I don't know whether that's what you're proposing or not, Mr. Murphy--then you end up with the situation where you have the absolutely same result in cases that are completely different and where it's simply not a good fit.

I'm not suggesting that what I'm putting forward is a magic bullet. What I am suggesting is if you really do feel there's a problem with conditional sentences being used in cases that are too serious, the way to deal with that is to identify principles that should animate judges in determining the appropriate sentence.

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

Okay, but in all sexual assault cases you would have a presumption against conditional sentences?

[Prof. David Paciocco]

In all sexual assault cases I'd have a presumption against conditional sentences. If the defence lawyer can demonstrate on the circumstances of that particular case why the offender can remain in the community, and still produce an appropriate sentence, then it's an appropriate outcome in the case.

The reason a presumption is important is if a judge ends up giving a conditional sentence where it's not fit, the Crown can go to the Court of Appeal and have a good basis for appeal, because the principles of sentencing have not been respected. Absent those kinds of directions, you have tremendous sentencing discretion, and courts of appeal don't like to interfere with judges' sentencing. But if you have the principles codified, then the Court of Appeal will have a foundation for interfering with inappropriate sentences.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I found it interesting listening to what Professor Paciocco said. I agree with you, there is a fundamental principle. I have 25 years' experience in criminal law, and unfortunately for you, I was a defence lawyer. I did not work for the Crown, but I am able to understand the Conservative Party's position that justice is very often done only as far as the accused is concerned. Unfortunately, that is the way the Criminal Code was made.

I find this interesting because conditional sentencing is a very important issue. Surely you will agree with me that one of the fundamental principles is individualized sentencing, i.e., the individual to be sentenced by the court is a unique person and the sentence has to be determined based on the individual who is before the court. We agree on that principle. That is one of the main principles, and your brief does not question that.

However, I have a bit of difficulty understanding your text, but I really want to understand it, because it comes back to what was being said around the table today more or less. On page 10 of the French version, you talk about amending the Criminal Code. My colleague, the learned Réal Ménard, whom we hope to see called to the Barreau du Québec soon, says we should amend section 742 of the Criminal Code. I agree with you. I am trying to understand two paragraphs, but despite my 20 years of experience, roughly, I do not understand them.

Could you explain them to me? If I understand correctly, there would be conditions on the use of conditional sentencing in the Criminal Code, in section 742. I would like to understand what you are saying in the two paragraphs on the priorities and principles that you would like to see included in the Criminal Code to limit conditional sentencing. You have my full attention.

[Prof. David Paciocco]

If you look at section 742.1 you will see a number of preconditions listed providing for conditional sentences. What I am recommending is that there be an additional condition inserted in section 742.1 that makes it clear that the conditional sentence is a response to sentences where the priority is to be on rehabilitation or restorative justice, so that the judge should not impose a conditional sentence in a case where priority should be given to denunciation or deterrence.

So whenever a judge sets out to sentence an offender, the judge should decide what the goals of sentence are in that particular case and what the priorities are. If the circumstances are serious enough that denunciation and deterrence are required, even at the expense perhaps of engaging in a rehabilitative sentence, then a conditional sentence would not be appropriate.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Sorry to interrupt, but am I to take it that the court must first consider the crime and whether the individual before it is eligible for a conditional sentence? Initially, it is about a sentence of imprisonment, an individual who deserves a sentence of imprisonment.

Then, consideration is given to the conditional sentencing option. You would add a prerequisite to that. Sexual assault cases were mentioned, and you gave a very good example, impaired driving causing bodily harm, which would warrant a sentence of imprisonment.

Is conditional sentencing applicable in that case? If I understand correctly, your answer is yes, but there would be those two prerequisites.

[Prof. David Paciocco]

If it's a listed offence, if a serious injury occurs from the impaired driving, you would start, as a judge, from the assumption that a conditional sentence is not appropriate. You would look at the specific circumstances of the offender and the way the offence happened. If there were special circumstances in that case, and if the offender would not pose a danger to the community, you could, in your discretion, exercise a conditional sentence.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Lemay.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I would like to ask one last question. There would then be a reverse onus of proof, if I understand correctly.

[Prof. David Paciocco]

The accused would have to establish that that is the appropriate sentence.