Evidence of meeting #19 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was sentencing.
A recording is available from Parliament.
Member at large, National Criminal Justice Section, Canadian Bar Association
You mean ones that should be. Well, there are many, starting with the lower numbers of treason, treason in time of war, intimidating Parliament, inciting to mutiny, sedition, breach of duty of care of explosives that causes death--there's a long list.
As I quickly look at my list, it is virtually everything under 100.
Conservative
Member at large, National Criminal Justice Section, Canadian Bar Association
That is a reasonable position to take.
Conservative
Rob Moore Conservative Fundy Royal, NB
Well, that's helpful. Thank you.
Mr. Muise, I did appreciate your testimony. That's the kind of thing we have to deal with as parliamentarians. The Canadian Bar Association suggested that to bring this bill in could bring justice into disrepute, and you've suggested that not to bring this bill in will continue to bring justice into disrepute.
Can you talk a bit about that from the victim's perspective? It is great to hear from the academic world and so on, but you're working with actual victims who see the perpetrators of crimes against them serving their time in the community. I'd like to hear your comments on that.
Det Sgt John Muise
Thank you, Mr. Moore.
I've talked to victims both as a serving police officer and also in the six years I spent at the Office for Victims of Crime, where we managed complicated cases in which victims were being run off the rails by constituent members of the justice system. There is also, of course, my work at the Canadian Centre for Abuse Awareness. These victims were frustrated.
There are a large number of people who don't see the proportionality in staying at home. They are not just crime victims and survivors and front-line criminal justice professionals, but average, hard-working folks, the kind of people with whom I communicate on a regular basis because I'm with this organization. When you tell these people this is actually a sentence of imprisonment, they don't get it; they don't understand it, because it doesn't make any sense to them. Quite frankly, to average people, average folks, hard-working Canadians, it doesn't make any sense, and it doesn't make any sense to me, and I'm somebody who has been in the justice system for 30-plus years. I know some of you think I come at this with a sledgehammer, but I understand the nuances of the system.
I'll go back and repeat myself at the risk of doing that. Judges do a great job of being triers of fact, but I think that generally speaking, in this country, they've lost their way in terms of responding to the needs of the community, the needs of crime victims, and the needs of Canadians in terms of justice and enhanced public safety.
Ms. Schurman mentioned about prison being a failure. Prison's a failure because the way we sentence in this country doesn't work. It's a failure because you're guaranteed automatic parole at one-sixth. It tells you nothing; it tells you nothing about learning and responsibility. You're guaranteed automatic parole at two-thirds, even for the most serious, violent crimes. It's statutory release; you get out of jail no matter what, even if you have 200 institutional violations, so in other words, even if you've been a really bad boy in prison, we are letting you out. It's as simple as that.
You wouldn't do that with your son or daughter when they've run off the rails. You wouldn't say, “You've been really bad for the last two weeks. That punishment I gave you of three weeks? I'm going to cut it off now, because you've been really bad.” That's what we do in this country. It's no surprise that prison has been a disaster.
In the United States of America it's equally no surprise--and I understand there's a lot wrong with what happens south of the border, and we could all have a wonderful debate about that for hours on end--that when they identified the small group of offenders who commit a disproportionate amount of crime and locked them up, the crime rate dropped in the country, and it dropped precipitously.
I think if we took some of those lessons and put them in play in this country and in Bill C-9 in conditional sentencing, and a variety of other parole and sentencing issues that our Martin's Hope report speaks to, we could actually bring down the crime rate, enhance public safety, and--because it's not incompatible--assist with habilitation or rehabilitation of offenders.
Conservative
Conservative
Rob Moore Conservative Fundy Royal, NB
This comment struck me because, of the whole of the criminal justice system—and I want to make sure I understand it—you mentioned that from a victim's perspective.... We have heard a lot about the offender, and I appreciate all the input we've been given on the interest of proportionality and rehabilitation of an offender; those are all very important perspectives. But from the perspective of the victim, your round tables found that conditional sentencing was their number one complaint.
Det Sgt John Muise
Correct. Some of it's a lack of understanding of what judges are confronted with, but they complained about judges in terms of sentencing. In particular, the number one issue around sentencing was the giving of conditional sentences inappropriately for serious crimes. I know it's anecdotal, but it was at all our sites: London, Toronto, Orillia, Windsor, Belleville, Sault Ste. Marie—the ten sites. That was the number one refrain from people on the front lines, crime victims, and survivors.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Moore.
Mr. Mauser, don't rush away if you could hang on for a moment. Ms. Barnes has some questions, but when she is finished, I'm going to give you a couple of minutes to make any comment you may wish before you walk out the door.
Ms. Barnes.
Liberal
Sue Barnes Liberal London West, ON
Thank you very much.
We on this side have said that we have always wanted the categories of terrorist organization, criminal organization offences, and serious personal injury offences. If we were to capture those offences that we think could be taken down to smaller categories, those would be the included ones that we would be looking at.
Mr. Brooks, I think people need to understand that when a bill.... In the last Parliaments, our past government sent bills to committee after first reading, so there was a lot of flexibility on how you could amend. Now, a bill sent after second reading is much more circumscribed concerning how you can do amendments.
It is somewhat unfair when my colleague across the way, who knows this, starts asking you to cherry-pick through these things, as if we can just propose lists and schedules, when, the way the current section has been set up, it would be more likely to be in categories. That is something that is important to understand for people trying to come before this committee to give us guidance on how we should amend.
That is why we have been trying to.... There are other ways. There could be ways, for instance, of taking the sections and instead of saying 10 years say 14 years, or life. That would have the element of reducing the list, but again, in a more arbitrary manner than would a categorization of offences. I think we have to understand that.
Also, when it has come here on second reading and you amend, you cannot add new elements and create, for instance, a new sentencing principle, because that would be outside the authority of the amendments that are found when you come before this committee after second reading.
So there's far less flexibility than is being suggested here to do real amendments of this bill. It's a question of a way of finding the categories. I say this so that other people coming before us have this knowledge, so that they come with a more targeted approach that would be helpful to this committee, because we are struggling with it. I believe it is very arbitrary, the way it is right now, for the reasons Ms. Schurman gave us.
Ms. Schurman, I'm not sure whether you're familiar with the studies Professor Mauser gave you. Would you feel comfortable commenting on other studies on over-sentencing? It's been stated in the evidence of Mr. Muise that people don't undercharge or overcharge. I believe there are numerous studies available on that point. You would probably be aware of some of them.
Sessional Lecturer, McGill University, As an Individual
There are. I am aware of some of them.
I wouldn't be at ease to comment on anything submitted by Professor Mauser today, because I didn't receive it. I don't have the graphs you're referring to or anything else.
There is a very real problem that comes up across the country on a relatively regular basis with questions related to overcharging or undercharging, for all kinds of reasons. Usually it comes down to having put responsibility on the shoulders of perhaps the wrong person.
So yes, there are others. I could try to provide you with some information about them at another time, but I wouldn't be able to speak about them today.
Liberal
Sue Barnes Liberal London West, ON
You sent some materials in here on points. The clerk will distribute them to all parties—and it's similar to what would happen for you, Mr. Brooks. I should let you know that it will be over the next few weeks that we will be getting to the place of clause-by-clause.
I would also like a comment from Mr. Brooks, Ms. Thomson, Ms. Schurman, and Mr. Muise about the inclusion. When the previous Liberal government tried to restrain and narrow the areas for conditional sentencing, it did so with the presumption, but it also did not include drug offences. This bill here, other than the hybrid offences in the lower categories of the scheme—the conditional drug bill—will classify even minor uses of certain very serious drugs such that conditional sentencing will not be allowed. I'd like your opinions on whether that should be in or out.
Member at large, National Criminal Justice Section, Canadian Bar Association
Essentially there is such a wide range of circumstance associated with drug offences that it is very difficult to set out particular drug offences that ought to be unavailable for conditional sentences. Drug addiction is such a particular area that this also tends away from allowing it to remain part of the conditional sentence regime.
I hope that answers the question.
Conservative
Det Sgt John Muise
Thank you, Ms. Barnes.
I don't have the list in front of me; I didn't bring the information research, but from my recollection of my reading of it, it was “trafficking” and “possession for the purpose of trafficking” offences. If indeed there were some straight possession offences included in that, I must have missed them. I suspect that would be an appropriate kind of an offence for you folks to talk about and maybe reconsider.
Liberal
Det Sgt John Muise
Right. I understood they were mostly trafficking offences or trafficking types of offences. You mentioned possession. I just didn't see any possession.
Sessional Lecturer, McGill University, As an Individual
If they meet the criteria of proof from the Supreme Court of Canada, even trafficking offences would be perfectly appropriate offences for conditional sentence of imprisonment, especially since a tremendous number of people are involved in small trafficking, in small quantities, in smaller areas that have an underlying problem. The conditional sentence of imprisonment allows you to treat the person with the underlying addiction and problem, and perhaps get them out of the criminal justice system.
Conservative
The Chair Conservative Art Hanger
Thank you, Ms. Schurman.
Thank you, Ms. Barnes.
Mr. Mauser, I know you're about to leave the committee. Do you have any other comments that you would like to make before you walk out the door?
Prof. Gary Mauser
Thank you, Mr. Chairman, for this final opportunity.
I would like to reiterate that because the American violent crime and homicide rates have fallen so drastically, we must imagine that they are doing something right. The research that I have shown demonstrates that there is solid proof that imprisonment reduces the homicide rate, reduces the violent crime rate—imprisonment for whatever serious crime.
Many of the prisoners have been in prison for things other than homicide or violent crime. This is talking about imprisonment in state and federal institutions in numbers. This suggests that imprisonment is not a failure, it is a way to protect the public. I can see why a judge or even a defendant might see prison as a failure, but if our goal and our focus is on protecting the public, imprisonment might well help all Canadians.
Thank you.
Conservative
The Chair Conservative Art Hanger
Thank you very much, Mr. Mauser. Have a safe trip back to British Columbia.
Mr. Thompson.
Conservative
Myron Thompson Conservative Wild Rose, AB
Thank you, Mr. Chair.
Goodbye, Mr. Mauser, and thank you.
To the rest of you, thank you for your interventions today. It's good to have you here.
I know it's a given that there isn't a person in this room, whatever your political stripe or whatever you stand for.... Basically what we're trying to do as a whole is to remember that there are victims out there and they need help. There are just too many victims, and we want it to stop.
Our judge of all we do is the public. I know that in the House of Commons, since I've been here, thirteen years, several million signatures—I'm not talking about thousands—have come in on petitions asking us to do something about the crime in this country. That's from the people who are paying the bills, who pay our salaries, who we serve, and they are not happy with the justice system as we know it today.
If you dared to put a poll out there, I don't think any of us would question for a moment that you would never find a poll indicating that we would get a very high approval rate on our justice system. You certainly wouldn't get it from those who are trying to enforce the laws. I deal with lots of police departments, lots of officers of the law who are very frustrated that they see a revolving door in our justice system, with them re-arresting the same people over and over.
The kinds of crimes that are happening that are really on the rise—and I've watched them carefully since 1993, when I came here—are crimes against children. It's getting absolutely pathetic. I know we've had to have child pornography crime units in Toronto. I know, John, that you're well aware of who they are, how hard they've had to work. With the increase in child pornography and those things related to it, it has turned into a billion-dollar industry. How could that possibly happen? I don't think it would happen if you had a good, solid type of justice system. That's a failure. We're failing our children when this gets to these proportions.
When you go through the justice system, you see farmers going to jail because they sold their own grain—not stolen grain, their own grain. They go to jail, no questions asked, and we bring down the hammer. For a poacher who shoots an elk out of season, there are no questions, bang, it's into jail--you don't dare do that. Mind you, if you rustle a bunch of cattle in my country, they have a sign out there—you were talking about signs—that says “Notice to cattle rustlers: We do not phone 911, we phone Smith & Wesson”. When a justice system leads to those kinds of remarks coming back from the public, the public is not happy, so I think this is an effort to try to show the public that we're interested in doing something about it.
Fortunately, over the years, I came from a profession where I really was high on the popularity list. I was a school teacher and a coach, and everybody loved me. Suddenly I got into politics, and right now I'm down there with the used car salesmen, the lawyers, and the rest of the politicians, at the bottom of the heap, because the public feels we've failed them, and we've failed them dismally.
I suggest to all of you, particularly the Bar Association, that, yes, we believe in rehabilitation, yes, you have to do the best you can, but our major focus has to be on the victims. It has to be. If we don't illustrate to the public that this is exactly where we're focusing and that it's our major concern while we deal with trying to rehabilitate and all these other things, we're just going to continually lose ground. We cannot let the perpetrators who violate our laws gain any more inches. They've gained enough. That's the direction we want to move in with this kind of legislation.
Bill C-9, in my view, is a small step in the direction that we need to go to get that pendulum swinging back so that our society will have some confidence in what we're trying to do. They do not have that any more, without a doubt. I believe this bill is a good step in the direction of getting that confidence back. It's not the be-all and end-all. I know there are lot of things to do.
I certainly don't want to see conditional sentencing thrown out the window. There are certain times when it's the right thing to do. But we're trying to sort it out as much as we can in this committee and in this House.
I thank you for your presentations. No, I don't agree with some of you, and yes, I do agree with a lot of what you've said.
I don't want to have you answer any questions. I'd only like you to think about the public. We have created a very unhappy public, and we had better start doing something about it. We need people like you to help us.
Thank you.