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?