Thank you, Mr. Chairman.
I too am a member of the executive of the Canadian Council of Criminal Defence Lawyers. I've been practising as a criminal defence lawyer in London, Ontario, and southwestern Ontario for the past 25 years.
I note that it would appear that this committee in the past has considered statistics and graphs concerning not just conditional sentence rates but sentencing in general, and I don't propose any further statistical analysis but speak from the point of view of one who is in court almost every weekday dealing first hand with our criminal justice system. But I would ask this committee to give careful consideration to the statistical analysis and extreme care, because without first carefully looking at how the statistics were compiled and upon what base, really the analysis gets us nowhere, in my submission. Similarly, care must also be taken in the analysis of anecdotal evidence, which you have no doubt also heard and will hear more from me.
As has been stated, our association opposes this bill. That's perhaps not a surprise. It is simply too broad and unnecessary in its current form. If clarification is required as to when conditional sentences ought to be imposed, then that can be done otherwise. The appellate courts, the courts of appeal, do it; the Supreme Court of Canada does it. Professor Paciocco also made a suggestion to this committee as to how that can be done through a change to the preamble of section 742.1
No doubt judges must take their cue from the Criminal Code, which is the word of Parliament. But as in all matters, there must be support and confidence in their exercise of discretion, and that discretion should not be unduly fettered or eroded or minimized. Despite the fact that criminal law is a public law--crimes are prosecuted by the state, crimes are against the state--all crimes have an individual component. The individuals concern the victims of crime, the accused persons, the criminals once they've been convicted, the crowns, the judges--all of the people coming to the table. Judicial discretion in criminal matters can be fairly dealt with, and must be fairly dealt with, in our democratic society.
Judges are the ones who can deal with those individual elements before them. A robbery is not a robbery is not a robbery. A sexual assault is not a sexual assault is not a sexual assault. What do I mean? A robbery is someone who goes into the bank with a loaded weapon. A robbery is also the 19-year-old who pushes someone off a bike and takes his bike. They must be dealt with on an individual case basis. To just exclude the offence of robbery would go to both extremes. Sexual assault is similar, and you've heard examples of that, I'm sure, in the past.
Judges are left with assessing all of the aspects of individual cases. Bill C-9 takes away some of that individual assessment by simply stating that no conditional sentence for indictable crimes with a 10-year or more maximum sentence is available. It's too arbitrary. The maximum sentence for a crime is not a good guideline to use in determining the seriousness of the particular crime before the court, probably save and except the case of murder. Also, the fact that Bill C-9 still permits conditional sentences for those hybrid crimes prosecuted by summary conviction is no answer. A minor hybrid offence, as Mr. Bloos has said, may still be prosecuted by indictment as a result of prosecutorial choice or in cases in which the charge is laid more than six months after the offence. You may have a minor sexual assault that may be historical. If it's laid seven months afterwards, it has to be by indictment. It cannot be summary procedure. It may be the kind of offence to which a conditional sentence would apply, but it cannot be.
There also appear to be some myths about conditional sentences, in my experience. They are not granted to repeat offenders for the same crime. They are much less likely to be granted if an accused is convicted after trial, and in the majority of cases they are granted only if the crown prosecutor concurs by way of a joint submission--at least in my part of the province, that's the policy. The fact that they exist does not mean that judges cannot and moreover do not impose sentences of conventional jail for serious crime. They are merely an option in the list of sentences a judge can impose, and my experience is that they are not handed out lightly; when they are, the conditions are restrictive.
There may be disparity across the country in their use, even within the provinces, but Bill C-9 is not the answer. Further guidelines may be required, but that can be done in other ways. Professor Paciocco talked about that.
My clients don't commit crimes because they know that a conditional sentence is available. No one believes that we should not be tough on serious, violent crime, but Bill C-9 is not the answer to that. In fact, it bluntly takes away the option of rehabilitation and restorative justice for less serious, non-violent property crime. It is a halfway mark between the suspended sentence and a conventional jail sentence. It is something in the judge's arsenal when they have to impose a sentence on convicted persons in front of them, and it is not done lightly. It should remain the way it is.
Thank you.