Justice Committee on Oct. 4th, 2006

[Isabel Schurman]

Yes, I do. We're talking here not only about individualization in sentencing, but also the discretion judges enjoy to set the appropriate sentence based on the circumstances of the offence, as well as all the personal circumstances of the individual that committed the crime and, very often, has pled guilty. They are interrelated issues, if you will -- individualization in sentencing and judicial discretion. Those are two fundamental components of our humane, flexible system of criminal law, one that can truly meet the needs of all Canadians.

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

Thank you.

This question is for our witnesses from the Canadian Bar Association. I read your report with great interest, as I usually read material from the Canadian Bar Association. On page 6 of your brief, you say: “We suggest consideration be given to the following alternatives [...]”

Should I conclude from this that the goals set out in Bill C-9 are inappropriate, in your opinion, and that we should consider your three recommendations? If so, how are we to go about doing that?

[Adrian Brooks]

We are asking you to look at these three options suggested on page 7 of the French and page 6 of the English.

The reason for this is that it is our view that there is, to whatever extent, a problem perceived as it relates to serious violent crime, and that there are other offences swept up by Bill C-9 that do not have that concern. Accordingly, we have made the suggestions, as you have referred to them.

If you are looking for an example of how we are thinking of it or articulating it, you will remember in other provisions of the Criminal Code that there are listed offences for which the particular provision is applicable—for example, taking DNA at sentencing, or wiretap offences. The specific offences are listed, and the specific provision is made applicable to those specific offences. That is really the thinking that's at the heart of the section you've referred to.

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

In paragraph 3 of the English version, it says

“define 'serious violent offences'”.

What is meant by “serious violent offences”?

You also say: “We note that jurisprudence is developing on that topic under the Youth Criminal Justice Act.” So, you're referring here to young offenders.

Can you define what is meant by “serious violent offences”? Do you have your own definition? Are there any appeal court rulings or decisions -- certainly not Supreme Court rulings, because I would know about them -- dealing with this? If not, are you asking us to define the term “serious violent offences”?

[Adrian Brooks]

There are no decisions—you are correct in that regard—or I'm sure you would have been well aware of them.

As to definition of “serious violent offences”, obviously there is not a well-developed one in the jurisprudence; it is just starting to be developed. And obviously—and this is part and parcel of the other recommendations that have been made—this legislation can seek to create its own definition of what is a serious violent offence and include the particular sections of the Criminal Code that it says constitute that serious violent offence, and therefore make those ones ineligible or subject to a presumption as they relate to the availability of conditional sentence.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay.

Mr. Muise, do you have anything you wanted to comment on in reference to the discussion thus far?

[Det Sgt John Muise]

Yes, thank you, sir. I have just a couple of things.

One is that I don't think Bill C-9 in any way takes away from the opportunity for a judge to customize, to engage in judicial discretion, or to be flexible. Judges are wonderful triers of fact. They do a great job of that, and all Canadians are grateful, but I think they have lost sight in terms of proportionality. That's why we need Bill C-9.

If we look at the purposes and principles of sentencing in section 718--mine is from 2006, so I hope I'm up to date; I have to get up with the Canadian Bar Association here--it says:

(a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

Staying at home and hanging out doesn't do that. It's as simple as that. It's not imprisonment. We can't change that; that's what it's called. It is not imprisonment, yet now, because of Regina v. Proulx, it has become the accepted replacement for imprisonment, and it's inappropriate for the vast majority of offenders who get it.

I didn't bring a laundry list of disasters gone wrong in the criminal justice system. I saw that the minister did that at his appearance. I could have brought a list of 200 cases of disasters and lives ruined, souls destroyed, families broken, dreams that will never be reached. The principle of proportionality is not appropriate for so many of those offenders.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Muise.

Mr. Comartin, the NDP member, has left. I'm going to split his time between Mr. Lee and the Conservatives. They haven't had an opportunity to question yet.

Mr. Lee, I know you have a question or two yet.

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

I always have one or two. Thank you.

Mr. Comartin did speak with me very briefly.

I want to ask, just for clarification, if Professor Mauser has any 2005 data on homicide in Canada or the U.S. These would be the 2005 homicide statistics.

[Prof. Gary Mauser]

I have the preliminary numbers, and they don't vary very far from 2004 either way.

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

Could you read them?

[Prof. Gary Mauser]

I don't have them under my hat. I have seen them. As I remember, homicide is up in both countries--but again, very slightly.

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

All right. We'll see if we can dig that out to the extent that it might be relevant or useful.

I'd like to go to Mr. Brooks.

First of all, I have a two-part question. Could you respond generally to the perceived need to adjust the conditional sentencing accessibility at, let's say, the higher end of the more violent range of offences? There is a sense that perhaps some judges from time to time might move too quickly to a conditional sentence, based on all the local circumstances--all the factors that have been mentioned by Ms. Schurman and others--when in fact the denunciation component of sentencing might deserve a bit more attention. There seems to be a sense out there around the country that there could be an adjustment to remove that option in some classes of sentences, just as a general proposition.

Second, have you one or two suggestions, if any, as to how we might amend this bill to coincide more with the view that you've articulated?

[Adrian Brooks]

Just as a general proposition, there is always the concern of the difference between perception and reality, as it relates to violent offences, and how judges treat those violence offences, because--and I believe this point was made by Ms. Schurman--the everyday person who hears the actual facts of everything that is before a judge often has a very different view from that arising as a result of the media view. Of course when we're talking about these situations, we are talking about a smaller percentage of conditional sentence orders that relate to these particular problem areas we hear about as it relates to violent offenders, and that's one reason why the CBA has taken this position. You have a definable, smaller problem that does not require this expansive solution that has its negative consequences.

So that's a general comment that I hope is somewhat responsive to what you have suggested.

As to how to amend this bill, as I say, the CBA takes the position that a different redraft is necessary, which gives a definition of those specific offences for which a conditional sentence either is not available or presumptively is not available, and that the legislation ought to be drafted on that basis, which involves really not a redrafting of what we have here but starting again with a different scenario.

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to all of the witnesses for taking the time to meet with us today.

For the Canadian Bar Association, I have a couple of quick questions. I note also in your recommendation that, and this is sometimes the case, the devil's in the details, because you are acknowledging here, the way I read your recommendation, that there could be the possibility that there are some of these offences, perhaps, that we've grouped as being ineligible for conditional sentences that we should itemize and name as ones for which a judge should not impose a conditional sentence.

I agree that there are situations, certainly, and that's why I support this bill, when a judge should not impose a conditional sentence. I've heard that from the other side too; they've said it's too broad. But I haven't heard yet from the opposition of one of the ones that we've included that they'd like to pull, even the serious violent offences that you've mentioned or property crimes. Mr. Muise mentioned cattle theft, which has come up quite a bit in debate here. At first the question was, why is that included, but when you hear more about the victims you would ask, why not?

I do want to ask the CBA whether there are a few that you would point out that in your opinion should be excluded from a conditional sentence because, as I note in your testimony, a judge says he or she does not pose a threat to society. In theory that's great, it sounds good--the judge has determined they don't pose a threat to society--but the reality is why we're all here today and why we've brought this bill forward. There are cases for which a conditional sentence is seen by society as a joke. And contrary to your claim that to eliminate conditional sentences for some of these offences would bring disrepute for the law, in fact disrepute for the law is in place right now, in my riding and throughout Canada, because of conditional sentences.

So I'd ask for your comment. Are there one or two of these that you'd pull out and say yes, a conditional sentence should not be given for that offence?

[Adrian Brooks]

There are over a hundred offences this bill applies to, so it's difficult to do that.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm just saying one. Name one where a conditional sentence should never be imposed by the judge, of the ones that we've included.

[Adrian Brooks]

One that should never get a conditional sentence?

[Rob Moore, Conservative, Fundy Royal, NB]

Right.

[Adrian Brooks]

I think there are a significant number here in my list that have those.

[Rob Moore, Conservative, Fundy Royal, NB]

It is because currently you can get a conditional sentence in all the ones that we're limiting, and you've said we should define in the Criminal Code a category to target only those types of offences that judges should not consider. So to help the committee, I'm asking you just to name one of those.

[Adrian Brooks]

Oh, sure.

I want to make sure I answer the right question. Do you mean ones that should not be part of this legislation?

[Rob Moore, Conservative, Fundy Royal, NB]

No, I mean ones that should be.