Justice Committee on Oct. 2nd, 2006

[The Chair, Conservative, Art Hanger]

I'm sorry?

[Jane Griffiths]

I have somebody who can speak specifically to that approach.

[The Chair, Conservative, Art Hanger]

I'm not quite sure what you're referring to. Your approach...?

[Sue Barnes, Liberal, London West, ON]

She has somebody in the audience whom she'd like to have talk.

[The Chair, Conservative, Art Hanger]

About what?

[Jane Griffiths]

Are there people here who can speak?

[The Chair, Conservative, Art Hanger]

Is this someone with your group?

Okay. What would they be speaking of?

[Jane Griffiths]

It would be responding to the conditional sentencing. I'm thinking of a particular program that is happening in the courthouse here in Ottawa that uses restorative justice principles. A lot of the cases we receive are cases involving conditional sentencing, the resolution of which has been very satisfactory to victims as well. Statistically, when we look at the cases we've received under what is being proposed, 94% of the cases we have used would be excluded from the work we do. Considering how positive victims have been to that approach, I wanted to look at it as well.

[The Chair, Conservative, Art Hanger]

We'll permit a couple of minutes of presentation, then, on the court program you're speaking of. I have other witnesses who have testified here.

[Jane Griffiths]

It's just that, for that specific question, we could find out from Tiffani Murray.

[The Chair, Conservative, Art Hanger]

If she would present quickly....

Would you please identify yourself? We'll give you a very short opportunity to present.

[Tiffani Murray, As an Individual]

Sure. Thanks very much.

My name is Tiffani Murray, and I am with the collaborative justice program. It's a restorative justice program here at the Ottawa courthouse. I'm also a lawyer.

The program has been in operation since 1998, and as one of the witnesses stated, it works on principles of restorative justice, which have been given paramountcy in the Criminal Code. We have seen that conditional sentences have benefited all the participants of our programs--offenders, victims, and the community.

We've been through our cases, compared them to the proposed legislation in Bill C-9 and the offences that would be affected by the removal of conditional sentences, and we've come up with a figure of 94% for cases that would be affected. In those cases, what I'm saying to you is that the victims would be affected as well.

Those cases would not be permitted to have a conditional sentence. They are cases where we've worked with the offender, the victim, the families, and the community in order to come to a resolution, which has included a recommendation presented to the judge, the Crown, and the defence to allow a conditional sentence that also allows restitution for the victim.

For example, it can be some meaningful community service, having the offender contribute to an organization that has personal meaning for the victim, or having the offender contribute a donation to a charitable foundation that has personal meaning for the victim. It can include having the offender do work in the community. All of this gives a great deal of control back to the victim and allows the offender to take responsibility.

None of this would have been possible had the offender been given a period of incarceration or, in 94% of our cases, had the conditional sentence option been removed.

We're talking about cases that include fraud over, theft over, or even impaired driving causing bodily harm. These are cases in which the victim and the community have benefited.

[The Chair, Conservative, Art Hanger]

Réal.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

I'm going to speak in French.

I must say I particularly appreciated today's panel. Even though it was on video, I would watch it again because it seems to me to be such a combination of wisdom and alternative methods.

I will start with Mr. David Paciocco, professor at the University of Ottawa. As a civil law student myself, enrolled in the André Jodoin program at the University of Ottawa, I must say I enjoyed your presentation.

I have always thought it would be a better idea to amend section 718 and provide judges with some guidance. If it is felt that conditional sentencing is a tool that has been misused, we should not, as you say, throw the baby out with the bath water; we should limit its use to purposes that are considered socially acceptable.

Would you be able — I do not know whether you can do this right now, but if not you could send it to our clerk — to suggest some wording to us? I suppose the first and second suggestions you made to find a concrete application would require an amendment to section 718. Did I understand correctly? Have you thought of any wording that could be used in a very elegant amendment that the more progressive among us could take up?

[Prof. David Paciocco]

Thank you, Monsieur Ménard.

I am not a legislative drafter, and I wouldn't propose to give language that I would ask the committee to take verbatim.

What I do know is that before a conditional sentence can be provided, there are listed conditions that are to be in place when conditional sentencing is appropriate. I think one of them needs to respond to the sentencing goals.

Right now, the focus is to simply ask the general question as to whether a conditional sentence would be consistent with general principles of sentencing.

What I'm suggesting is that the Criminal Code spell out when a conditional sentence would be consistent with general principles of sentencing by specifying that it would be appropriate only in cases where restoration or rehabilitation are the priority in those circumstances. This should be coupled with another provision that gives assistance to judges in identifying when they should give priority to rehabilitation and restorative justice sentences, in particular identifying presumptive areas where denunciation plays a significant role in the sentence. The lawyers would have to show why their case has some unique feature that makes it appropriate to have reference to a collaborative justice project or some other sentence that focuses on the needs of the offender.

There is a huge difference, as I said, in the range of offences and in the range of offenders. It would be unsafe to be too precise. If a judge understands that a sentence really must present deterrent and denunciatory impact, then they should think long and hard before giving a conditional sentence. There must be something particularly special in that case.

[Réal Ménard, Bloc, Hochelaga, QC]

I want to make sure I understand your objectives. If you do not want to give in to your legal drafting impulses, that is okay; there are others who can that.

If I understand correctly, you suggest that we amend section 718 so that when a judge has to determine what the sentence should be, like a conditional sentence, he will be able to propose other sentences. You want judges to be guided by criteria spelled out in section 718.

Is that what you are suggesting? That is the section of the Criminal Code that deals with sentencing. I imagine that is something you already look at in one of your courses. Is that what we are talking about?

[Prof. David Paciocco]

I would put the provisions directly into the conditional sentencing provision rather than in section 718. It would make it very clear that instead of the current three prerequisites, a conditional sentence has four prerequisites.

It wouldn't be available where there is a minimum sentence. It wouldn't be available if putting the offender back in the community would cause harm. It wouldn't be appropriate if it is inconsistent with the principles of sentencing, and it will not be appropriate with the principles of sentencing--

[Réal Ménard, Bloc, Hochelaga, QC]

So you would amend section 742.

I know something about restorative justice as advocated by aboriginal people. You mentioned circles of support and accountability. I would like you to give us some more information about these alternative justice practices. I think that James raised these issues.

[James Loewen]

Thank you.

Yes, I specifically referred to a program called Circles of Support and Accountability, which is not specifically an aboriginal justice manifestation but one that is consistent with principles I have heard from them. It is a program of the Mennonite Central Committee in Ontario. I consider it a restorative justice program because it brings restoration to perhaps the least approved of offenders in Canada. These are sex offenders, and not just any sex offenders, but high-risk sex offenders of the nature that Mrs. Prober was referring to.

They provide a place in the community where offenders are held accountable for their past and for the risk they present to community. But they are also supported in that they are given the opportunity to change, to move forward, and to become contributing members of society so that there are no more victims and no more horrible stories, as we heard just a few weeks ago about that man who stole two children.

If that man had had a circle of support and accountability, that would not have happened. I can tell you that with some assurance. The success rate, as seen in the study done of the Toronto circles of support and accountability, indicates they are highly effective in stopping recidivism.

But in the government's eyes, and in the eyes of most academics, that would not be considered a restorative justice program, simply because it only deals with the offender and making sure they don't offend again.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Did you want to respond, Ms. Prober?

[Rosalind Prober]

With regard to whether or not Mr. Whitmore would offend again, I mean, really; Whitmore is a hard-driven pedophile with a sexual interest in children. I just find it difficult for someone to come here--as much as I respect the view, especially around victims--and to judge someone like Whitmore, who in my view is a hard-wired pedophile who's going to sexually abuse children until you lock him up. He has proven that himself.

Whitmore is also highly manipulative. As you know, it started in Manitoba, where he literally conned a family out of their son. This is a highly skilled individual in terms of lifestyle. He was able to get jobs and to move across the country. He went out to Newfoundland and rented an apartment. He told the Newfoundlanders he was coming back with two boys. He rented a car out there, or bought one, left it there, and then came to Manitoba and started working. He in fact conned the father out of his son. The three of them--the son, the dad, and Whitmore--went off in a car. They were supposed to go camping or something. Then all of a sudden, after a week or so, the father was sent back to the city, at which point Whitmore then used this young boy to help kidnap another young boy.

Really, there are people in society who are hard-wired pedophiles. We have to accept that. In terms of conditional sentencing or anything to do with this kind of individual, this type of bill is just one little piece of what we have to do in Canada to protect children from sex offenders. I'm not saying this is the be-all and the end-all. This is just one little piece. But I don't want this committee to have any naivety at all about what a sex offender wants to do, will do, and too often does do in this society.

In terms of recidivism rates, there is a dark side to these statistics about recidivism rates: basically, children don't tell. Sexually abused kids are not the ones who are represented in these recidivism rates at all. So I also find it very difficult to hear that individuals are not sexually offending again. How do we know? You cannot rely on criminal justice statistics, absolutely not. If you're talking about the hard-core pedophiles—and not everybody who sexually abuses kids is a pedophile, for sure—some of those individuals have hundreds of victims.

In reality, then, although I respect that view, let's be real about sex offenders against children. And let's be real about the type of society we live in, which is highly sexualized. It presents children as available to be abused.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Prober.

Mr. Comartin.

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

Professor Paciocco, as I understand your position, you would not preclude the use of conditional sentences, as the bill contemplates, at all, for any offence. That's correct?

[Prof. David Paciocco]

Correct.

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

So when you hear of a fact situation like the Marasco case, and of the abuse he suffered, even that you would leave to the discretion of the judge.