Justice Committee on Oct. 16th, 2006

[The Chair, Conservative, Art Hanger]

Thank you very much.

We will now begin with the committee members. They will have the opportunity to question all the witnesses.

I'm going to hold you to your time, seven minutes for the first round.

The first person is Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

I want to thank all of you for your presentations. Obviously, what we're concerned about is creating safe communities. I'm a little concerned that the number of bills that have been submitted to us by the new government would lead the public to believe there is going to be a safer community. What I'm really concerned about is that if these bills pass in some form and do not work, we will further erode the public's confidence in the judicial system—something, I might add, that during the debate on these bills is happening anyway, because there are aspersions being cast on the judiciary, on the lawyers, on those involved in the criminal corrections system, and that can't be helpful.

To that end, I'd like to ask you all questions, but I want to narrow in on two groups of witnesses. They are, first, the Canadian Council of Criminal Defence Lawyers.

I want to compliment you, of course, on having a good New Brunswick lawyer in charge of your money as treasurer, Mr. Lutz. It shows good sense.

I want to ask you as lawyers whether you feel that your clients—and you can speak for your association, or the council, or for yourselves and from your own experience—would be better assets to the community if they spent time in prison rather than received conditional sentences.

[Marvin Bloos]

The short answer to that is no, and I'll tell you why.

On a conditional sentence, which is somewhere between half to two-thirds or longer than a jail sentence—and I'm talking about serious matters, about sexual assaults where they've been issued, or serious assaults with violence.... By serious, I mean there has been a punch-up and somebody has wound up with bruises, and it's not the sort of thing where there's a suspended sentence. When you have that sort of matter and a lengthy conditional sentence order is imposed, offenders know that if they don't follow the rules, the sentence will be collapsed.

Before they get that sentence, defence counsel goes in with a plan, with a program: here's the counselling we're proposing; he's going to work these hours at this place. With the curfew, he'll be out for seven or eight hours maybe—whatever the job takes—and then he's home for the rest of the night. It's 24-hour-a-day house arrest, with the exception of going out to work.

Or if it's a student...what about students? Well, if they go to jail, they don't continue their education, or they don't continue some good things that might have taken place between the time of the offence and when they're sentenced—because that can be a critical period. When they are looking ahead to the moment when they're being sentenced, it can be a very reflective time. As one person said, there's nothing like a hanging to focus your attention. They're thinking, what do I want to do with my life?

The defence counsel goes in with the program—here's the counselling, and here's what we're going to do—and the judge takes a look at all of it and sentences the individual. If they don't follow through, they're going to jail.

The kinds of programs you can get in a community are simply not available within a jail setting. They can come out as bad as they went in to jail.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I want to segue with this brief question—and for a brief answer—to the probation officers. In how many cases, in percentage terms, are pre-sentence reports prepared by probation officers determinative or influential in the judge's granting a conditional sentence?

[Andy Rady]

Are you asking the probation officers or us?

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Well, I'm asking you, because you're the defence lawyers.

[Andy Rady]

I could answer that, because I do a lot of trial work. They're very important. A negative pre-sentence report usually results in a jail sentence; it doesn't result in a probationary sentence. It really is a very important tool for the judge to consider in passing sentence.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

With that answer, I get right into the probation officer representatives. We're here to write law, and we can't really supervise every judge and every prosecutor and every defence attorney. The law would suggest—and it's not going to be changed by anything in Bill C-9—that this conditional sentence remedy is not going to be given unless the court is satisfied that it won't endanger the safety of the community.

It's been my experience, and I'm glad to hear it from people who are more specialized in the field, that probation officers—and I know you may not speak for New Brunswick and all the provinces, but it might be similar across Canada—often write pre-sentence reports that are determinative of a judge's deciding to let this or that person serve the sentence in the community.

If your association is for everything in Bill C-9, is it fair to say that all of your members haven't heard the tune yet and are not singing it? Am I off base?

[Catherine Hutchison]

We weren't saying we were in favour of C-9; we were referencing specific concerns we've had about the most serious offences. Then we quoted the principles of Professor Paciocco as a good measure.

Our concerns are the most serious offences, particularly serious offences against children and offences involving loss of life—severe violence.

In terms of the pre-sentence reports, what the probation officers do is assess the suitability of someone for community supervision, but they cannot dictate a conditional sentence over probation. Oftentimes, when, for example, jail is being considered, they will say what conditions would be imposed should that person be in the community, and they would look at their background, but the person could have jail plus probation. The judge would still take the information and put it on a probation order, or the judge could take it and put it on a conditional sentence order. But the probation officer doesn't determine which of those options they're looking at—the offender's history, the response to community supervision, all of their background, and which conditions should be imposed should that person be supervised in the community—so they wouldn't determine which sentence it is.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

I understand that.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you very much.

I'm going to speak in French.

In the train coming to Ottawa, I read the submission you tabled at the symposium held here in Ottawa, in 2000, after the Supreme Court handed down the five rulings.

You said that this bill is a product of pure ideology and that its adoption cannot be justified on any rational ground. You have made exhaustive studies and are well versed on this matter.

To your mind, in its denunciation, did the Supreme Court indicate that in cases of violent offences where there are slim chances for rehabilitation and where there is a risk for the community, common sense would lead one to conclude that a conditional sentence is simply not the preferred option.

My first question is for Mr. Roberts and Ms. Joncas. Do you have statistics, and I am not talking about ones used by conservative sensationalists, but hard data that show that the courts have handed down conditional sentences in cases the public deems as shocking crimes, either inappropriately or out of contempt?

I have two other questions, should I have time remaining, or if the dear lord permits.

[Dr. Julian Roberts]

Yes, it's a complicated question. But in a nutshell, what Proulx did was give trial court some direction as to how the sentence should be constructed and how breach should be responded to—and the message from Proulx is tough.

So if you breached without a lawful excuse, there was a presumption on admission to custody for the balance of time remaining on the order. Proulx said there should be a presumption of house arrest, and so on. And you see in the statistics over the period since Proulx, which was in 2000, courts responding to that, with conditional sentences getting longer and tougher.

Proulx stopped short of saying there are some offences that should never attract a conditional sentence. But as a result of Proulx and other decisions of the courts of appeal across the country, we've basically arrived at what I would call judicial presumptions that there are some offences appearing before the courts in which there's a clear judicial presumption against the conditional sentence.

[Réal Ménard, Bloc, Hochelaga, QC]

Before handing the floor over to Ms. Joncas, I will clarify my question. We all agree that creating a list based on offences punishable by imprisonment for 10 years to be completely arbitrary given our overall objective.

Section 742.1 in the bill could be amended to consider the goals of deterrence, denunciation, conditional sentence, without making these the absolute rule.

Do you believe that such an amendment would be relevant, or on the contrary useless?

[Dr. Julian Roberts]

I'm not sure it's necessary, but I certainly think that would be a superior solution to having a list of offences, or this dual approach involving maximum penalty and prosecutorial discretion.

You could say that if denunciation and deterrence are uppermost in the court's mind, then the court should go against a conditional sentence. But the simple point I want to make is that there are going to be cases, even for the most serious offences, where the court will recognize relevant mitigating factors and want to impose a non-custody conditional sentence. I think taking that away from the courts is a mistake.

[Réal Ménard, Bloc, Hochelaga, QC]

Would you have supported bill C-70 introduced by the liberals, legislation dealing with terrorism and generic offences? Would you have supported excluding terrorism and criminal gang activity? Could we adopt such an amendment?

[Dr. Julian Roberts]

I think that bill was superior because it contained presumptions. It didn't take it off the table entirely. I think it would have changed the practice of trial courts, and it would also have focused on these more serious offences, and things like fraud, which is a category of offence that's most likely to be affected by Bill C-9, wouldn't be there.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have time to ask a brief question to Ms. Joncas? I am very much an admirer of Ms. Joncas.

[The Chair, Conservative, Art Hanger]

One question.

[Réal Ménard, Bloc, Hochelaga, QC]

Ms. Joncas, my question is straightforward.

Sexual offences strike an emotional cord among people. Yet one has the impression that it is tricky for legislators to decide on generic offences, because they cover a set of diverse situations, which then result in a disparate patchwork of sentences. What are your thoughts on that?

[Lucie Joncas]

The notion of sexual offence is now very broad, to the extent that touching even through clothes could be considered harassment. This notion is not at all comparable to the former notion of what constitutes rape. As such, when a sentence is handed down, the judge not only ask you to consider the offence itself, but also the individual who committed it.

I have sat in on a few trials involving gangs and I never seen a conditional sentence of imprisonment handed down. In fact, this measure allows for a judge to make sure that at least half of the sentence be carried out. This is not really an issue in the courts.

[Réal Ménard, Bloc, Hochelaga, QC]

There is never a sanction...

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, Mr. Chair.

Mr. Larman, I heard Ms. Hutchison say that in fact you were...well, I'm not clear, because when you spoke, you were absolute in your support of Bill C-9 as it is before us at this point, and Ms. Hutchison was saying that's not the case.

Did I misunderstand you?

[Donald Larman]

Perhaps I didn't clarify it enough.

We are in support of Bill C-9. Certain aspects of Bill C-9 we do support--the serious violent offences, violent sexual offences. We also have what we call “non-violent sex offences”, although I'm not certain we'd agree that there's any such thing as a non-violent sexual offence.

We do endorse certain aspects of Bill C-9, but not its entirety.