Justice Committee on Oct. 2nd, 2006

[Prof. David Paciocco]

That would be one of the cases where there would be a presumption against a conditional sentence. There would need to be something particularly unusual about the background of the offender or the circumstances of the offence to make it appropriate to have the sentence served in the community. If that wasn't the case—if there were a presumption against it, and a conditional sentence was given—that case would be appealed and the appeal would be successful, just as it was in that particular circumstance.

The point is you cannot have hard and fast rules when it comes to sentencing without catching cases that shouldn't be caught. We should have enough confidence in judges, who are constrained by articulated principles that reflect the will of the people of Canada, to respect those principles. If we don't, we have a very serious problem.

If we start having listed offences saying, never for assault causing serious bodily harm, or never for this offence, or never for that offence, you're going to see a fairly extensive shopping list of offences, including sexual assault against children.

One of the cases I teach in my class involved sexual assault against children, but it occurred thirty years ago and involved fairly modest touching. I know that every sexual assault is significant, but it was not a case where there was anything productive to be gained by taking someone who was an active participant in the community, who engaged in charitable activities, who was a father of young children, and against whom no complaints had been made for thirty years. I do take the point that we don't know with absolute certainty whether that person offended again. But in all of those circumstances, it would not have been a productive response to put that person in jail for what in truth were long ago events.

That's why I think an absolute prohibition is a dangerous thing. There are circumstances behind all kinds of offences. We have a revulsion to impaired driving causing death, but there are circumstances with respect to that offence where a conditional sentence might be an appropriate response. Someone could kill a spouse or a brother in an impaired driving accident, and there may be absolutely no need to send any type of deterrent message to that person or the community because of the nature of the tragedy. If we dumb down the law of sentencing, we're going to incarcerate people unnecessarily, without the benefit of having the opportunity to try to do something productive when the opportunity is there.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Yes, Ms. Prober, I'm going to give you a chance.

I agree with you. Judge Nosanchuk, in that case where the death was caused by the close friend.... In fact, the parents supported the conditional sentence in that case. Again, you always have those kinds of circumstances.

Ms. Prober, if I understand you, you don't accept that. You say that absolutely there should be a prohibition against the use of conditional sentences where it's a sexual offence.

[Rosalind Prober]

Yes, and I want to comment on historical victims, because that sort of touches me personally. The only reason why cases are historical is because of the damage done.

So although I agree with David on many of the things he's saying, and really with the other folks across the room, I don't think historical cases should get any sympathy. I don't think the court should look at the person doing charitable work, being a good guy, or having children, whatsoever. I think this should actually play against them, because that's the last type of person who should have been sexually involved with children.

It's sort of a reversal in the courts. You have these individuals come to the courtroom, and in my view the mitigating circumstances should really be the aggravating circumstances. That is, oh yes, you have a job, you have children; oh yes, you're a wonderful guy; oh, you do charity work; oh yes, and you're sexually abusing children—hello! That guy should get a larger sentence, and the person who for whatever reason gets involved in sexual activity with children and is marginalized, or whatever, should be looked upon with a lot more sympathy.

So there's an odd thing that goes on in the courtroom when you see...and you're hearing it just there. This is a nice person; therefore thirty years later we shouldn't incarcerate him. I totally disagree. Besides, for thirty years this person has known he was criminally involved with a child and hid it.

So I have very little sympathy for those individuals in historical cases.

[The Chair, Conservative, Art Hanger]

Mr. Comartin, please continue.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Let me just challenge you on that. You're making the assumption that every pedophile or act of sexual abuse...and equating that to pedophilia.

[Rosalind Prober]

No, I'm not.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Let me finish, Ms. Prober. You heard the evidence that we took before the committee on Bill C-2 last time, from I think probably the three leading experts in the country. They made it quite clear that there were gradations. So taking the factual situation that the professor put before us, I think he was saying that sexual abuse occurred in that case thirty years before, it was discovered now...no other evidence of any other sexual abuse. Let me add another factor to that.

Assume that after that first incident there was treatment and the person responded to treatment, because, again, those experts told us that in the low-end cases treatment was in fact viable--not in the hard-wired cases, I'll accept that, but in the low-end cases. Given that factual situation--the treatment was given, the person did not reoffend in any way over the balance of that thirty-year period--would you still prohibit the use of conditional sentences?

[Rosalind Prober]

Yes.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Would anybody from the rest of the panel like to comment?

[The Chair, Conservative, Art Hanger]

Very quickly, please.

[Lorraine Berzins]

Yes. I think there is a big difference between deterrence and denunciation, and I heard you mention both. Deterrence, we know, is simply not something that happens as a result of the application of the criminal law. We shouldn't even be talking about it anymore, but denunciation is very important, and I think that's what Mrs. Prober is talking about. And I think that has to happen in personally meaningful ways or in meaningful ways to a community.

So when you say there's an appetite out there to do something that will provide for denunciation, I think you have to remember that there's a large body of research on public perceptions of crime that show that Canadians, when they only read the headline in the newspaper, may be shocked at the lack of denunciation of a sentence. When they are given information that brings them closer to the reality of exactly what the circumstances are—and I do not mean empathy for the offender, necessarily, but what the victim is experiencing, what kinds of things are being done that make sense to the victim, that are a denunciation, that this is taken seriously and the needs are being taken seriously—Canadians want that. We know this.

So I think it's important that you be aware of that body of research and not assume that Canadians want just the simplistic answer that is not going to give them the real result we all want.

[The Chair, Conservative, Art Hanger]

Thank you.

If the committee would bear with me, I'd like to ask one question, given that it pertains to information I've accumulated over a long period of time as a police officer dealing with, in many cases, abuse, and even low sentences. I've seen communities outraged by the fact that a sexual predator in their midst who had actually babysat many a child in the community was given a conditional sentence. The reaction from the community was very substantial. There was no appeasing what had happened there because, as so often has been expressed here, predators don't just stop--they keep on going and they keep on going. However, that's one reaction from the community on a conditional sentence. I see it as absolutely astonishing that anyone would consider wanting to put an offender right back into the midst of those whom he has offended.

Secondly, I've talked to a number of victims--and as a police officer you usually end up doing so--who have been touched sexually, especially the youngsters, and sometimes this may be by prominent members in the community. We'll even pick on one of the clergy as an example, but it doesn't have to be. It could be a person who goes around raising charitable funds for organizations. This is just touching ever so slightly, sexually, with the intent of doing it sexually. Those victims come back and say afterward, you know, I felt like I should be more promiscuous. If it's a girl maybe 12, 13, or 14 years old, it would trigger something within them and they would actually become more promiscuous because of the involvement with these adults, as they manipulated them into the positions that they, the adults, chose to go. The girls in particular would end up being more promiscuous as a result of it, and even state that, because it was part of what was encompassing them at the time. They were very, very vulnerable to that type of response.

I'm curious about everyone sitting up front here who have had opportunities to talk to victims. How do you accept that as a way of dealing with offenders--putting them into conditional sentencing--when a community is outraged and the victims are actually impacted in a very negative way?

[Prof. David Paciocco]

I understand the point, Mr. Chair, and I wouldn't begin to denigrate the horrible impact that sexual offences can, and usually do, have on victims. The case I was positing involved a 21-year-old person at the time who committed the offence on boys who were 14 and 13 years old, and it was sexual touching, which no society in its right mind should tolerate. The question ultimately, though is, after the passage of all of that time, what type of reaction is the appropriate reaction, and what are we going to ultimately get out of doing it?

The point I made earlier is I don't think we can assume that if we abolish conditional sentencing for sexual assault, we're going to produce a deterrent effect. The question ultimately that has to be grappled with is whether we feel there are no circumstances under which offences falling in that or any of the other many categories that were listed would warrant a conditional sentence. You've picked one of the most reprehensible offences and one of the most offensible examples of why you wouldn't want conditional sentencing, but the bill that's currently being put forward by the government includes a whole range of offences that don't come close to sexual offence. As I say, it is a blunt tool, but even in the context of sexual offences, I would urge the government to bear in mind that while there are cases like that, where victim impact statements can put forward the context within which the offence occurred, and where presumption against a conditional sentence could provide courts with an opportunity to interfere in a case where the community would rightfully be outraged, let's not assume that there's only one appropriate response in every sentencing circumstance. That's the problem, in my respectful submission, with the bill. It is simply too generalized.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Loewen.

[James Loewen]

Thank you.

That story you just told highlights very nicely what I thought the point of my presentation was, which was that with the way the current system operates--whether we're talking about conditional sentencing or any form of sentencing--both victims and community are largely voiceless. We have a community that has had no part in the process, except perhaps through the lawyers and judges who live in the community, in the outcome of that case, a case that directly affects them and that has impacted them as a community. Primarily, victims have not been sought out and respectfully communicated with. What that problem points out is that you come to the community with this solution to the problem of that horrible crime and they're not satisfied. Should we be surprised? It's because they had no part in the solution--nothing.

[The Chair, Conservative, Art Hanger]

Ms. Prober is next.

[Rosalind Prober]

What can I say? I have been the wife of a criminal lawyer for many years. Some things have sunk in, and one of them is that it's a war zone; the court system is a war zone. It's win or lose. There are people leaving there with high-fives and there are people leaving there like they're the losers. I don't know; maybe David would like to comment on that. It's the reality of the system.

It's also a system that is absolutely gruelling on children. If you had to design a worse system than the adversarial system, I don't think you could--not for sexually abused children. No matter what you do--Bill C-2, which we supported, all the witness aids, and all of that--the thing is, it's still very gruelling.

I want to go back to that case in Saskatchewan. That started in 2001. That was when that young girl, age 12, ran away. That case goes on today. It's, what, coming into 2007? There were three men, right? That case was such a mess that the two last guys are just coming up for trial.

In actual fact, just to show how stacked against children the cards are, we made a complaint in 2001 to the judicial council about the fact that the accused were called “the boys”. They're all adult men; they were called “the boys” in this case. It's now 2006, and we still haven't had a response from the judicial council.

This is a very gruelling process on children. We are talking about people post-conviction. We're talking about these people once they have been found guilty and have come for sentencing. The biggest problem with sex offenders is that they have very, very strong denial processes. The reason they get into this crime in the first place is that all the enormous societal barriers that exist to tell you that you shouldn't get involved with sex with children have not sunk in to them. It's just not there, because they are thinking dysfunctionally. They are also victim-blaming, in many cases--so post-sentencing, I think these individuals should be held properly accountable.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Prober.

I know other offences besides the sexual offences are impacted by this bill. That is part of the discussion, and we could talk about that too.

Mr. Thompson, you have the floor.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you, Mr. Chair, and thank you all for your presentations here and your time today.

I want to say to Ms. Prober, from Beyond Borders, that in 1993, when I first came here, one of my main personal objectives was to do everything I could to get rid of this child pornography and other things that are destroying and hurting the lives of our kids. It has been a constant battle.

I'll be honest with you. For thirteen years I have not been able to understand why grown-up men and women, including judges in the courts who make certain decisions, cannot arrive at something that would really help in that area. But we always seem to run into this idea of having to be careful because it probably won't pass the charter test. In other words, the rights of some people are more important than the protection and the safety of our children. That's the way it has always come across. I don't know how we're ever going to defeat that, but that has to be done sometime in the future, because that is now a multi-billion-dollar industry. And what a shame that it has grown to that extent over these years.

So I really appreciate your work, and you keep it up. I want to state that right off the bat.

I want to say to the Church Council, I'm not sure how you arrive at your decisions and your recommendations regarding Bill C-9. I looked at the list of founding churches, and I happen to belong to one of them. I don't believe that the church I belong to, which is very huge in membership, would agree with anything you said today. I have received a lot of petitions over the years, particularly from certain church groups, that are pronouncing the very things that I think Bill C-9 is promoting. That's the part I want to get to.

When the Beyond Borders lady said you cannot rely on criminal justice statistics alone, I agree with that, but one statistic that you can rely on is the fact that, I know now, after a 2,500,000-person petition tabled in 1994, led by Priscilla de Villiers and a victim's group, and in addition, all the petitions that have been occurring over the last ten years...we're into several millions of petitions demanding that something be done with this justice system. That's from the people who pay for it, and they deserve to be safe under it.

So I'd like to know how you arrive at a decision when I really have a tough time understanding from this list that you have that much support from the group.

James, you're stressing the importance of a voice of the victims. I couldn't agree with you more. The victims are not involved in there enough.

I appreciated David's proposal, but I'll be honest with you. All the people in my riding who signed these petitions, and all that, really wouldn't quite understand where you're coming from. I would suggest that you wouldn't make a presentation like this in my riding, which is heavy cattle country, if you get my point.

[Prof. David Paciocco]

The cattle example may have been ill-chosen beyond the committee.

[Myron Thompson, Conservative, Wild Rose, AB]

But I want to stress this: the thing that sparks this debate out there in this huge country to do something with the justice system is when things happen such as in one week, the one week I'll never forget, the one week that the perpetrator kidnapped, you may remember, Melanie Carpenter. The prison guards and the caseworkers phoned me and said he was going to be paroled; this man should never be out; why are they doing it? There was a big argument, but they let him out, and within a short time, Melanie Carpenter was found dead.

The same week, a poacher of an elk went to jail. In the same week, fourteen farmers went to jail for selling their own crops across the border without a permit. In the same week, a five-year-old girl was brutally attacked, her throat was cut, she was raped and was found in a garbage barrel, and it wasn't too long until that person was put on a conditional sentence for one of the worst, most heinous crimes.

Does that not draw a picture to any of you, or to all of you, as to why the public out there has been signing millions of petitions over the last few years? Something has to be done. And if you agree with that statement, then I hope you will understand that this government is determined that we're going to make some significant differences to try to improve the justice system, and Bill C-9, we believe, does.

Unfortunately, discretion of the judges is causing more grief. If you want to hear a comment after a judged case, the comment practically anywhere is “What in the world was that judge thinking of?” Maybe his decision was right and maybe it was wrong, but the people are not genuinely satisfied with leaving it in the hands of a judge. That's the impression I get.

So there are my words, and anything you want to say in regard to what I ask, I'd like you to respond.

[Prof. David Paciocco]

I can begin from this end of the table. I do apologize again for the cattle example. I'll take a closer look in future at who is on the committee.

[Myron Thompson, Conservative, Wild Rose, AB]

I don't have any myself.

[Prof. David Paciocco]

I certainly understand the frustration that the Canadian public feels. I think we all have a responsibility to try to ensure that the criminal justice system reflects the kinds of values that the Canadian public adheres to, but I would endorse the observations that were made by the council with respect to sentencing decisions.

I've seen the studies in which you ask general questions to people on what they think about sentencing and they'll tell you it stinks. But if you give them the specific facts of situations and ask them for a range of appropriate sentences, they will typically pick a sentence very close to that which the judge gives.

I would urge this government to do what it can to try to make sure the criminal justice system is responsive to the needs of the people, but to be targeted in how it does it. To just get rid of conditional sentences for all offences listed that have maximum sentences over ten years, in my most respectful submission, is a very blunt way of just trying to show that you're going to get tough on crime. If you're going to accomplish something specific by doing that, if you're going to deter crime, if you're going to systematically produce good sentencing, then I'd be standing here saying, bravo, let's do it.

The problem is it's too generalized. You can't take discretion out of sentencing. If you're going to go that far, why don't we just list a specific sentence for every crime in the Criminal Code, a period of incarceration that has to be given for every single crime, and we'll just get rid of sentencing as a process and have an automatic outcome.

You've got to look at the context and you've got to look at the circumstance. Short of that, you're always going to have judicial discretion, and if you don't have it, you don't have judgment.

[The Chair, Conservative, Art Hanger]

I want to move the meeting along a little. I know there are other responses from witnesses to Mr. Thompson's comments, and I would like to get to them quickly, because there are other questions for some of the other witnesses.

Ms. Berzins, go ahead, please.