Justice Committee on Oct. 4th, 2006

[The Chair, Conservative, Art Hanger]

I would like to call the meeting of the Standing Committee on Justice and Human Rights to order. The orders of the day are for the study of Bill C-9, an act to amend the Criminal Code for conditional sentence of imprisonment.

We have four presentations today: the first from Mr. Gary Mauser, a professor at Simon Fraser University of British Columbia; the second from the Canadian Bar Association; the third from the Canadian Centre for Abuse Awareness, Mr. John Muise; and fourth, from Ms. Isabel Schurman, a lecturer at McGill University.

I'm going to go in the order set out in the notice of meeting. We will start with Mr. Mauser. I would ask that the presenters keep their comments down to ten minutes.

Mr. Mauser has to leave a little early. We appreciate your attendance. I know you're under pressure to get moving; I know the members have some questions for you. So we will ask you to begin, Mr. Mauser.

[Professor Gary Mauser, Simon Fraser University, As an Individual]

Thank you very much, Mr. Chairman.

I'm Gary Mauser, a professor at Simon Fraser University. I am privileged to be in both the Institute for Canadian Urban Research Studies, in criminology, as well as in the faculty of business administration. I have researched and published in criminology for more than fifteen years. My doctoral training was in social psychology and quantitative methods. My academic research has been published in criminology, political science, as well as business journals.

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

Mr. Mauser, could you please speak more slowly, so that the interpreters have an opportunity to translate what you're saying?

[Prof. Gary Mauser]

I apologize. I will go more slowly.

My remarks are directed to the question of whether or not incarcerating serious or violent offenders is effective in protecting the public.

My reading of the criminological research suggests that imprisoning serious offenders is indeed effective; that increasing the number of offenders who are incarerated acts to reduce violent crime rates. This effect is especially pronounced with homicide rates. This research supports the wisdom of imprisoning those who have been convicted of serious offences; that is, those punishable by prison terms of ten years or longer.

Some Canadians have a bias against anything American, but to reject American research studies simply because they are American runs the risk of ignoring potentially effective solutions to serious Canadian problems; thus I believe responsible Canadians should examine U.S. justice policies in order to emulate their successes and to avoid their failures. The U.S., being so much larger than we are, simply has a wider and deeper bank of information from which we can learn.

The facts indicate that violent crime rates have fallen faster in the U.S. than they have in Canada. I've had some charts distributed that illustrate this. Between 1992 and 2004, for example, the overall violent crime rate fell 38% in the U.S., but only 13% in Canada. This precipitous drop is even more evident in homicide rates. During the same time period, the homicide rate in the U.S. fell by 41%, while in Canada it only fell 26%.

Criminologists have been studying this drop, which was completely unexpected, with some attention over the past decade. The results of this attention are now becoming clearer. There are literally hundreds of studies. I will limit my discussion to the most important ones.

Especially illuminating is the research conducted by Marvel and Moody, who are among the most respected criminologists in the world. In their time series studies, they found strong results at the national level affirming that expanding prison populations is convincingly tied to reducing violent crime rates.

Marvel and Moody's 1997 research demonstrates that for every 10% increase in the prison population, homicide rates drop 13%. In their studies, of course, they controlled for a wide range of other variables, such as inflation, unemployment, demographic trends, socio-economic factors of a wide variety.

Marvel and Moody found similar but weaker relationships for assault and robbery. They speculate that this weaker statistical relationship is most likely due to the lower quality of arrest data for crimes other than homicide.

Marvel and Moody's results were quite robust, and their research findings have been replicated by other researchers. One study in particular, by Kovandzic and his colleagues in 2004, deserves mention. They not only confirmed Marvel and Moody's earlier findings but also examined the effect on violent crime rates when offenders get out of prison. They found that there was no evidence of a significant positive relationship between prison releases and homicide rates.

Many researchers have observed that prisons are expensive. That's true; however, who ultimately bears the cost of crime is a question of more importance than the cost itself. Yes, prisons cost taxpayers more than does probation or house arrest, but the costs of criminal violence are paid for by the victims—their lives blighted, the lives of husbands, wives, or children lost to criminal violence.

When serious offenders are allowed to escape serious jail time, they are free to commit more violent crimes. Individual Canadians bear these costs.

To take only one example, Jane Creba, who was killed in Toronto on Boxing Day last year, might still be alive had the previous government acted to keep serious offenders in jail longer. Other examples of questionable sentencing decisions are frequently reported in the media.

Research in both the U.S. and Canada suggest that those in social minorities are the victims of violent crime at higher rates than other citizens; thus it follows that increased prison terms will be especially effective in reducing victimization rates among minority members. In Canada, aboriginal victims disproportionately bear the costs of violent crime; thus aboriginal people will be among the primary beneficiaries of a program that incarcerates serious offenders.

Before I conclude, I would like to say a few words about the tendency of some people to refuse to believe statistical studies that do not conform to their previous beliefs. Such a position is buttressed by the cynical claim that statisticians can obtain any results they wish by simply massaging the data.

Such cynicism justifies laziness and ignorance. Certainly, liars and sophists use statistics. Liars misuse words, too, but that does not mean we should give up on language.

In conclusion, despite what you may hear from special interest groups who cherry-pick data, the criminological research is quite clear: longer prison terms for serious or violent offenders has been important in the dramatic fall in violent crime in the U.S. These results support the logic behind Bill C-9, that of incarcerating those who have been convicted of serious offences.

Thank you for your attention.

[The Chair, Conservative, Art Hanger]

Thank you, Professor Mauser.

I notice that there are two presenters for the Canadian Bar Association. Again, please keep your comments to ten minutes if you possibly can. Thank you.

[Tamra Thomson, Director, Legislation and Law Reform, Canadian Bar Association]

Thank you, Mr. Chair and honourable members.

The Canadian Bar Association is very pleased to have an opportunity to present its views to you today on Bill C-9. The CBA is a national voluntary organization comprising lawyers, law professors, law teachers, notaries, and law students from across the country. The submission you have before you today was prepared specifically by the criminal justice section.

Just a word about the section: it is unique amongst criminal justice organizations within Canada in that its members comprise both crown and defence attorneys, and the submission you have before you marks the consensus of those two groups coming together.

I have with me today Mr. Adrian Brooks, who is a member of the executive of the section. I will ask him to address the substantive areas of the bill.

[Adrian Brooks, Member at large, National Criminal Justice Section, Canadian Bar Association]

Thank you, Mr. Chair.

Conditional sentences at the present time are for those individuals a judge has decided do not need to be imprisoned for rehabilitation or for purposes of community safety. Bill C-9 will put some of these people in jail; therefore, without making the community safer, more people will be in jail, and when they get out of jail the risk to the community may well be higher. For this reason, the CBA does not support Bill C-9 yet will make a submission to you that recognizes the significance of serious violent crime.

First with regard to conditional sentence orders, these clearly have a proper place in sentencing. They have dealt with all manner of issues and all manner of sentences. The benefit to society of keeping an offender employed and with their family is too obvious to dispute. Yet at the same time, conditional sentence orders have been significant in the onerous terms that are put on individuals. Individuals may indeed find serving a shorter jail sentence, followed by parole, easier than a conditional sentence order.

Criticism of conditional sentence orders is often centred on the nature of the offence, but conditional sentence orders, it should be remembered, are based on many factors, not just the nature of the offence. They are based on the circumstances of the particular offence and the particular offender, so that any legislation must keep in mind the myriad factors that go into a just sentence. That is why the CBA supports “a more refined tool”, as that term is used on page 4 of the English edition of our brief, page 5 of the French edition.

Because conditional sentence orders provide that much-needed intermediate step between jail and probation, any bill should be slow to restrict the use of conditional sentence orders. Bill C-9 has chosen the Criminal Code's use of maximums as the line between conditional sentence orders being available or not. That line is flawed, for two reasons: one, it is too broad; two, it is not based on a coherent principle.

It is too broad because it will sweep up offences for which there is no reason not to have a conditional sentence order, at the very least as an option. Unauthorized use of a computer or mischief causing damage over $5,000 are examples of some situations in which a conditional sentence order might be best left to a judge. We say it is not coherent to use maximums also because they were never intended to create this kind of black-and-white dividing line.

The current sentencing regime allows a good deal of judicial discretion, and it is important to maintain as much judicial discretion as possible. That is so in order to recognize the very broad range of circumstances that can occur in any particular case, and that it is appropriate that the judges have that discretion. They have the expertise, they listen to both sides, and they make those hard decisions that at the end of the day must be made. If the discretion of judges is limited, what is it to be replaced with?

Bill C-9 gives a broad “one size fits all” substitute that is not a useful substitute; again it is not a refined tool. One example may suffice.

We know that conditional sentence orders are used at different rates in different provinces. Clearly, the judges have used their discretions in different provinces to make the decision as to what their community needs. Bill C-9 will end that, so that individual regional differences will be run over, for in excess of 100 offences.

Bill C-9 as it currently exists is inconsistent with the proportionality principle of sentencing. The proportionality principle creates respect for the law. Bill C-9 removes, for a broad range of offences, that proportionality of sentences for an individual and for an individual circumstance.

I ask you to consider how Bill C-9 will play itself out. Here is an example of an individual who would be sentenced for a counterfeit $20 bill and would not be eligible for a conditional sentence order under Bill C-9.

Judges may well say, in their reasons, that they would not otherwise be sending the person to jail. The judge would say there is no value in taking away the offender's job and the offender's time with family, yet would say that Parliament has left no choice. The judge may well say that an individual ought not to be in jail, wasting taxpayers' money, yet he or she has no discretion to do otherwise. That is why we say, in page 4 in the English version and page 5 in the French version, that this approach can foster disrespect for the law. We say that using proportionality and restraint is not being soft on crime; it is being smart about crime.

Serious, violent crime, nevertheless, is a significant issue. The problem is a limited one and easily identified, and that makes the broad sweep of Bill C-9 unnecessary. Our submission accepts that the problem of conditional sentence orders for violent offences can be dealt with by legislation, and we offer three alternative options. They are found on page 6 of the English version and page 7 of the French version.

In conclusion, it is our position that Bill C-9 will put people in jail who ought not to be there. It will not increase public safety; indeed, it may increase the risk of reoffending and thus make our communities less safe. A more focused piece of legislation can deal with the problems of serious offences; Bill C-9 is not that focused piece of legislation.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brooks.

Next on our agenda is Mr. Muise, from the Canadian Centre for Abuse Awareness.

[John Muise, Director, Public Safety, Canadian Centre for Abuse Awareness]

Thank you, Mr. Hanger.

Thank you, committee members, for allowing us to appear on Bill C-9.

I should tell you a bit about ourselves. I'm a recently retired 30-year veteran of the Toronto police service. I left there at the rank of detective sergeant, and in my last posting I was in charge of the major case management section and the retroactive DNA section at the homicide squad.

Before that, I spent six years on secondment or loan to the Ontario Office for Victims of Crime, which provided advice to a succession of attorneys general about public safety and support for crime victim issues.

I've volunteered for the CCAA for the last several years and upon my retirement took on the full-time position of director of public safety.

The Canadian Centre for Abuse Awareness has been in existence since 1993. It's an organization that survives solely through charitable donations; we accept no government funding.

The organization has raised awareness about the true cost of neglect through its support of the victims of child abuse.

It's based in Newmarket, Ontario, north of the city of Toronto, and it's powered by a committed group of staff and volunteers who provide support to 70 partner agencies—whether it's fulfilling a child's dream wish, assisting crime victims and adult survivors of abuse, developing abuse prevention programs and resources, or more recently advocating publicly for legislative change.

The CCAA is committed to ending child abuse.

We also have a report. It's called the Martin's Hope report. It's named in honour of Martin Kruze, who was the first survivor of the Maple Leaf Gardens child sex abuse scandal to courageously come forward and publicly disclose.

Convictions were registered in his case against the offender for numerous child sex abuse offences. Only four days after one of the accused, a man by the name of Gordon Stuckless, was sentenced to just two years less a day, Martin tragically took his own life. Although it was too late for Martin, Mr. Stuckless' sentence was increased to five years on appeal.

This proved to be a turning point for the CCAA. Afterwards, the centre conducted ten round tables around the province, and we think this is what's important about our organization. Following those ten round tables, where we spoke to 150 front-line criminal justice professionals, crime victims, and survivors, the CCAA completed the Martin's Hope report, which makes 60 recommendations for change--39 of them directed at the federal government.

We cover a wide variety of areas, including but not limited to the reform of sentencing, parole, and correction laws; the DNA databank; the age of protection; child pornography and the Internet; and children in the sex trade.

One of our recommendations, which is contained within several recommendations about sentencing, is actually about conditional sentencing.

When we spoke to the people around the province at the ten sites, despite the wide variety of voices heard, there was a significant commonality in what was said, with certain themes enunciated at pretty much every site.

When it came to complaints about the justice system, without a doubt the prevalence of conditional sentencing was at the top of the list of those complaints. We suspect that if the same kind of survey was done of those kinds of people in other provinces across the country, we would receive similar complaints.

As all of you here today know, conditional sentences of imprisonment—and that's what they're called—as a sentencing option came to be in 1996 as part of a renewal of sentencing law. The intention was to divert minor offenders from the prison system. In fact, the debate around the amendments at the time—and I remember them—included the fact that it was not intended to be used for serious or violent offences. Ten years of jurisprudence suggests otherwise.

Understand that the CCAA supports targeted and appropriate diversion of offenders from the prison system for less serious crimes. In addition, we support the use of effective restorative justice programs, as part of an overall strategy to reduce recidivism and, if we can, make offenders healthy and whole.

But we and many others believe the expanded use of conditional sentencing for a wide variety of serious offences and offenders has done more to bring the administration of the criminal justice system into disrepute than any other single measure.

Conditional sentencing has been routinely used by judges across this country to sentence literally thousands of serious offenders. Its use is widespread, and Regina v. Proulx at the Supreme Court of Canada has made it clear that there is no presumption forbidding the use of conditional sentencing. It's effectively carved in stone.

Despite the fact that probation orders exists in our sentencing regiment for up to three years, Parliament previously saw fit to add this new option—something that in theory would provide an option between actual incarceration in a correction facility and probation.

What hasn't been confronted in the debate about this, and what I suspect many of your witnesses on Bill C-9 will not confront, is that there is little that resembles prison or incarceration when an offender is provided a so-called conditional sentence of imprisonment or “house arrest”, as it is often referred to. Anyone who—and I know many of you have—has spent time in a courtroom knows that when an offender is about to be sentenced, and he bends over to talk to his defence lawyer, he is not pleading with counsel to implore the judge not to sentence him to “house arrest”. There isn't an offender, except for the most institutionalized of recidivists, who pleads for two years less a day in the nearest provincial jail, when staying at home is a possibility.

Let's be honest, there isn't much about staying at home, watching television, surfing the Internet and having the odd drink, along with the usual handful of caveats that allow travel in and out of the house as necessary, that remotely resembles prison. Quite frankly, it is a fraud that has been foisted on the Canadian public—this notion that these sentences are removals of liberty, worthy of being called imprisonment.

It should also be understood that the police aren't monitoring, and the probation service isn't visiting these offenders. Quite frankly, communities don't know what these offenders are doing, or if they are abiding by the conditions as set out in their orders. Justice this isn't, and enhanced public safety this isn't either.

We note that from the legislative summary provided on www.parl.gc.ca, there is little in the way of research on the effectiveness of conditional sentence orders. One notation does jump off the page, though. In a survey attributed to Professor Julian Roberts, he indicates that the successful completion rate of conditional sentences was 63% in 2000-2001, falling from 78% in 1997-98. The note makes the point that the failure rate was largely attributed to breaches of the increasing number of conditions placed upon offenders, rather than allegations of fresh offending.

That is no doubt the case, but one is left wondering if it has to do with the ever-increasing number of dangerous and serious offenders who have been placed on conditional sentences of late. In any event, the fact that the most recently published successful completion rate is at just 63% is quite extraordinary, when one considers that the police and probation are not proactively monitoring these offenders. The bottom line is that it appears that these orders may have a very significant failure rate, minus any kind of ongoing proactive monitoring. How bad would the rate be if they were being properly monitored? This is more then a little bit troubling.

Regarding the offences identified by Bill C-9, as I indicated, CCAA's Martin's Hope report supports the calls from many organizations to repeal the conditional sentencing provisions of the code. We were heartened when the mandatory minimum sentences were recently passed for a variety of child sex offences, with the net result of a repeal—that conditional sentences could no longer be given for those particularly serious crimes perpetrated against children. One of my past co-workers appeared on that bill.

With respect to the current list of offences, as proposed for exclusion by Bill C-9, with a maximum of ten years or more where the crown proceeds by indictment, we see this bar as being placed sufficiently high.

Although our organization has as its mandate the protection of children, we find it difficult to fathom the outcry over some of the offences included on the list. The property crime rate has more then doubled since the 1990s—that's the crime rate, notwithstanding the fact that many people just don't bother reporting offences, due to a loss of faith in the justice system. How much higher would the rate be if people actually reported all of these crimes?

For many people, the kinds of crimes represented—including break and enter, frauds, and for that matter, cattle rustling—all have a significant impact on lives. Many people suffer lifelong trauma after having their home broken into and ransacked and their keepsakes stolen. Fraud artists victimize the trusting and the vulnerable. Often the elderly are targeted, leaving them destitute and broken.

As for cattle theft, we understand it has been a topic of debate at this committee. It might not track so well here in the cozy confines of Ottawa, or in The Beaches, the tony neighbourhood where I live in Toronto, but for ranchers in British Columbia and Alberta who don't have insurance, it's serious business that impacts on their lives and their livelihood.

As an aside, when I travelled through the beautiful Chilcotin region of B.C. a few years ago, I saw a full-sized billboard that said, “We don't call the RCMP when folks steal cattle around these parts”. I'm not countenancing that behaviour, but the message is clear: they've given up and lost faith in the criminal justice system; they're taking care of business themselves. That's not a good thing, folks.

In any event, we think that the fact of the crown having to proceed by indictment for those offences hybrid in nature and the opportunities that currently exist for accelerated parole review, guaranteeing release after one-sixth of a sentence by paper review for certain of these offences, have not set the bar too low for those concerned about these proposed appeals. In fact, we have one area of concern with respect to the bill, and that is in regard to offences committed against children not being included. Specifically, these offences are assault, assault causing bodily harm, and sexual assault, when the crown proceeds summarily. When a child is the victim, these cases are serious matters, and we would encourage the committee to consider a simple amendment that would include those offences when a child is a victim.

A couple of questions have been raised. If the crown doesn't like a conditional sentence, why don't they just appeal it? Crown appeal divisions are overworked and understaffed, as are the appellate courts. We see this as an entirely inappropriate solution; the law has been identified as problematic; Parliament needs to intervene.

Would Bill C-9 interfere with restorative justice initiatives? Absolutely not. In the vast majority of cases, there are multiple opportunities to engage in restorative justice long before reaching the point at which a court sees fit to sentence an offender to a period of incarceration. In addition, for those offenders who do end up incarcerated, we would encourage you to focus on enhancing in-custody restorative justice initiatives, and in cases in which offenders have had some success as a result of restorative justice, to tie these successes to earning parole, rather than providing automatic release--i.e., accelerated parole review or statutory release. The end result would be that an offender would receive the dual message of denunciation and deterrence as a result of being incarcerated, coupled with effective restorative justice initiatives tied to earning parole.

Will the police or crown overcharge so as to avoid conditional sentences? Again, we find this hypothesis unrealistic. The crown has the ability to amend charges that the police lay and does so all the time. Crowns make decisions every day about how to proceed, and BillC-9 does not remove that discretion.

In conclusion, although the CCAA would have preferred more extensive amendment of the conditional sentencing provisions of the code, we support the proposed legislation and welcome the direction this government has taken. As indicated, our voice is that of front-line criminal justice professionals, crime victims, and survivors. Additionally, we believe that hard-working and law-abiding Canadians by and large support these kinds of targeted amendments. We do not see this legislation as being driven by ideological considerations, but rather by a concern for enhanced public safety and proportionality in the justice system that recognizes the impact on individual crime victims, communities, and societies at large.

The CCAA supports speedy passage of this legislation as written, and would encourage this committee to consider the additional amendments we have suggested with respect to inclusion of assault, ABH, and sex assault for the hybrid offences by summary when a child is victimized.

Thank you for the opportunity to participate in this most important democratic process.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Muise.

Ms. Schurman, you have the floor.

[Isabel Schurman, Sessional Lecturer, McGill University, As an Individual]

Good afternoon, ladies and gentlemen.

Thank you for giving me this opportunity to speak to you today.

I will follow the lead of my colleagues and tell you a little about why I think I'm here.

I am a criminal law practitioner and professor of sentencing in Montreal. I studied law at McGill from 1979 until I received a first degree in 1982 and a second in 1983. I was admitted to the Quebec Bar Association in 1984. I have either taught courses or lectured at the Université de Montréal, Concordia, McGill University, the bar admission course in the province of Quebec, the Federation of Law Society's national criminal justice program, and training for advocates on the international stage. One of my involvements in the past was with our friends from the Canadian Bar Association, where I was at one point in time chair of the national criminal justice section, and it was a pleasure to do so.

You will hear from people who have a lot more detail, a lot more to say than I do. What I would like very much to do is leave you with a few of the questions that have been in my mind constantly since I heard of and read the contents of Bill C-9.

Bill C-9 preoccupies me greatly because sentencing preoccupies me greatly. Sentencing preoccupies me because it's the nuts and bolts of the criminal justice system. With sentencing we decide who is wrong and how wrong they are. Sentencing is what goes on day in and day out in every courthouse in this country, because, depending on the jurisdiction, 75% to 90% of cases end in guilty pleas. Sentencing, ladies and gentlemen, is essential--one of the essential components of our criminal justice system. Sentencing will tell us an awful lot about who we are as a Canadian society.

If serious violent crime is the issue, then I would respectfully submit to the committee that this bill will not address it. This bill will complicate and confuse criminal justice in this country. It will result in inconsistencies from person to person and from jurisdiction to jurisdiction.

We've spent so much time and energy in Canada looking into sentencing--the Law Reform Commission, a royal commission on sentencing, the 1987 Canadian Sentencing Commission, the 1988 report of the House of Commons entitled Taking Responsibility. We've spent money and time and energy trying to come up with solutions to keep Canadians happy in a safe society with fair sentencing policies. These various commissions led to reforms in 1994, among others, Bill C-41, which talked to us about the purposes and principles of sentencing.

Denunciation, deterrence, sure, with rehabilitation and proportionality. Proportionality is very simple: the sentence has to be proportionate to the gravity of the offence and degree of responsibility of the offender. We cannot and will not sentence in the abstract.

Since 1994 we've legislated aggravating factors. We've said that if the crime is motivated by hate, you're going to get a higher sentence. If it's an abuse of a spouse or child, you're going to get a higher sentence. If it's abuse of authority, breach of trust, or related to the benefit of a criminal organization, you're going to get a higher sentence. It's all in the Criminal Code. We've legislated those little by little over the years because we want to make sure that serious violent crime doesn't go unpunished. In 2002 we legislated that an aggravating factor in breaking and entering is to enter a house when you know or believe that there are people inside, to deal with home invasions.

The law is changing to define which are the factors that will make an offence more serious. How will we evaluate the degree of responsibility of the offender? And the law has changed to look at effective alternatives to incarceration.

These reforms grew out of concern that Canada was incarcerating at an extremely high rate compared with other western Commonwealth countries. Canada's rate was some 153 per 100,000--second only to the U.S., which was far ahead of us at 600 or 700--and this despite the fact that commission after commission in this country had decided that incarceration was harsh and ineffective in many cases.

Justice Vancise of the Saskatchewan Court of Appeal made the point in a case called MacDonald that

Imprisonment has failed to satisfy a basic function of the Canadian judicial system, which was described in the Report of the Canadian Committee on Corrections, Toward Unity: "to protect society from crime in a manner commanding public support while avoiding needless injury to the offender”.

One of the most prominent jurists in this country made that statement.

Many of these studies also confirm that the length of the sentence was not the deterrent for crime--that the certainty of apprehension and conviction was the biggest deterrent we could hope for in criminal justice, not the length of the sentence.

Our priorities, then, as they are now for all of us, are to keep Canada safe and to choose or develop punishment options that would see public funds--public funds--our money--used wisely and carefully for key sentencing goals, including deterrence and rehabilitation.

No one is pro-crime. No one is untouched by the trauma on an elderly couple of breaking and entering; no one is indifferent to devastation caused by drugs in our society; no one accepts sexual offences against children or adults, against boys or against girls; no one believes auto theft should go unpunished; but as Julian Roberts, a criminologist referred to earlier today here, wrote recently, “The seriousness of the offence cannot be decided before the crime is committed.”

This is the single biggest problem with Bill C-9: it creates arbitrarily a blanket category of offences for which the conditional sentence of imprisonment would not be available without consideration of the specifics of the gravity of the offence or the specifics of the responsibility of the offender.

To target all offences proceeded upon by indictment, for example, meaning the maximum penalty is ten years or more, may not have been intended as arbitrary, but that is the result. The giving of contradictory evidence under oath, no matter how minor the proceeding, would not allow a conditional sentence of imprisonment. Unauthorized possession of a firearm, no matter how grave the circumstances--in downtown Toronto, for example--would be eligible under this new law.

Many offences have a maximum of ten years, but they include a vast range of fact situations that are certainly not equal in gravity. The man who touches the assistant's breast at the office party is guilty of sexual assault--as is the man who proceeds to what we used to call a rape of the 18-year-old secretary in the parking lot.

Not all cases of impaired or dangerous driving causing bodily harm are equal. The elderly man who backs up on the shoulder of the road and kills the motorcyclist is not in the same category, perhaps, as the wanton and the reckless disregard shown by a raving drunk who takes the wheel and seriously injures his partner for life.

Not all frauds represent the same degree of premeditation or the same extent of tragic loss. A $1,000 loss to a bank is serious; a $100,000 loss of life savings is serious too.

Some of the offences targeted by BIll C-9 can be proceeded upon only by indictment. Others may be taken as summary or indictable. The crown will make those decisions. What kind of burden are we putting on our crown prosecutors? They are salaried employees of the state, often overwhelmed and overworked, and not individuals named, as are our judges, with guarantees of independence and impartialit. Should it be up to the prosecutor to decide whether the accused has a chance at a rehabilitation program in the context of a conditional sentence of imprisonment? What pressure are we allowing to be put on these officers of the court to eliminate the conditional sentence of imprisonment, when the police or the public clamour for them to charge the more serious offence?

I'm sorry; I guess I'm speaking too fast?

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

It's not for me, it's for the interpreters. But you're very good.

[Isabel Schurman]

You're very kind.

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

It would be better for you to speak more slowly. That's great.

[The Chair, Conservative, Art Hanger]

Order, please.

Ms. Schurman, could you conclude, please?

[Isabel Schurman]

It is not fair to the crown prosecutors and it would create an image of an arbitrary, unfair system of criminal justice.

What of the image of our judges? The judges do not often speak publicly--I don't know if they've been here to speak--but they must also be so concerned that Bill C-9 is sending a message that we don't trust our judges, and that Bill C-9 is removing their discretion as to what they believe will keep Canadians safe.

Faced with a candidate deserving a conditional sentence of imprisonment but charged indictably, the judge may be tempted to sentence too low because the personal price of prison as compared to the gravity of the offence just seems too high. Why remove a tool that has been used in 55,000 cases since 1996?

Certainly there are examples where the conditional sentence of imprisonment did not seem appropriate, and the press releases seem to show that, but there have been studies indicating that when proper information about the details of a case are given to Canadians, they will often disagree with the press report and agree the sentence was appropriate. The judges see all that information; they have all the evidence. The evidence is rarely simple--it's not a bad person did a bad thing. The evidence is evidence of addictions, of learning disabilities, of mental illness, of societal problems, of desperation, of problems requiring therapy, of complex individuals who can remain functioning members of society. Judges are the best placed to evaluate this.

Why remove a tool that was not invented here? Europe has successfully used the conditional sentence of imprisonment for a very long time, European countries with lower rates of violence than we have here or than our American friends have south of the border. Our friends to the south have never tried the conditional sentence of imprisonment. Do we really want to do what they've done--fill prisons and see no correlating drop in the violence in society?

The conditional sentence of imprisonment--and on this I'll terminate--brought important changes to Canada that the committee may wish to be aware of. The judges would not use it until probation services had the funds. So probation services across the country were given the funds by the provinces to make sure that the conditional sentence of imprisonment was enforced. It was used when probation was not enough. The Supreme Court of Canada said that. Don't confuse it; don't say it's just another probation. It was used when probation is not enough but when fewer than two years incarceration is enough. Those are the parameters. It's not used in any crime at all.

The comparison was made here before this committee to probation, saying that a suspended sentence is the same thing as a conditional sentence of imprisonment. It is not, ladies and gentlemen. The conditional sentence of imprisonment, a breach followed by an intervening event, is punished by a consecutive sentence, and you cannot do that with a probation order. This is a much more severe, much stronger law-and-order tool than it's being made out to be in some circles.

[The Chair, Conservative, Art Hanger]

Ms. Schurman, I would ask you to conclude now.

[Isabel Schurman]

Okay.

We would suggest that the discretion be left with the judges; that we have faith in the appeal process; that we not overburden the crowns; that we take the money that would be used to build prisons and to provide for extra legal aid for incarcerated persons and use that money in order to help the provinces develop the programs that will help these people not find themselves back in the prison system. Help the provinces use the funds instead of forcing them to use them to deal with the destruction of families, with welfare cycles, and with disproportionate numbers of young men in repeat offence positions. Those funds can be better used than in creating prisons as a result of an overly broad legislative amendment.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Schurman.

I would remind the committee that Mr. Mauser, unfortunately, has to leave by five. I know there may be some who would like to question him. I would ask that the committee members realize that and pose any questions they may have of him, starting with Mr. Lee.

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

Thank you, Mr. Chairman.

I can probably wrap it up fairly quickly with Professor Mauser, and then perhaps Ms. Barnes would take the rest of my time.

Professor Mauser, can you tell me what your area of teaching is at Simon Fraser University?

[Prof. Gary Mauser]

My teaching is in ethics and quantitative methods.

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

Quantitative...?

[Prof. Gary Mauser]

Quantitative methods--that's statistical applications.

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

All right. I guess that's your strength, your forte, your professional discipline, is it?

[Prof. Gary Mauser]

My professional training is in social psychology and quantitative methods, right.