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.