Justice Committee on Oct. 16th, 2006

[Dr. Julian Roberts]

I don't think so, because paragraph 718.2(e) has withstood.... That provision could be invoked to override the presumption against the conditional sentence in a case involving an aboriginal offender in which restorative objectives were uppermost in the mind of the court.

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

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

You have thirty seconds.

[Sue Barnes, Liberal, London West, ON]

I want to touch on legal aid and the impact of the lack of resources for legal aid, and maybe I can talk to defence counsel. Usually, at least in my province of Ontario, the legal aid professionals tell me that even though there's not enough, it usually goes to those facing jail terms. What's going to be the impact of this bill on those seeking legal aid so that they can get representation or end up going without representation?

[Andy Rady]

It will obviously have a bigger impact, because one of the criteria for getting legal aid, at least in the province of Ontario, is that you have to face a substantial likelihood of jail. If this increases the likelihood of jail, then there are going to be more people requiring legal aid. Right now, the province of Ontario is facing a $10 million shortfall in legal aid for this year—and that's just at this point in this year, since Ontario's fiscal year ends at the end of March. So it will put a much greater pressure on the legal aid system, and I would think that would apply across the country.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

Mr. Brown, please.

[Patrick Brown, Conservative, Barrie, ON]

I have a question for Mr. Rady.

Touching upon a point Mr. Lee made, there certainly is a will in the public for changes and a tougher Criminal Code. Can you give me any examples of an offence for which you believe a conditional sentence isn't warranted?

[Andy Rady]

Isn't warranted?

[Patrick Brown, Conservative, Barrie, ON]

Is there anything in the list put forward in this bill that—

[Andy Rady]

Obviously, there's what is there right now. But one of the things we obviously have to remember is that if there is a mandatory minimum punishment, those sentences are not entitled to have conditional sentences. There were amendments to the Criminal Code, effected last November, to a lot of the offences that included being sexual predators on children, including sexual interference and sexual touching. They imposed mandatory minimums, albeit small ones, that have already taken conditional sentences away from those crimes.

[Patrick Brown, Conservative, Barrie, ON]

But from the existing legislation...?

[Andy Rady]

From the existing legislation, no, and I'll tell you why. I even thought of what the most serious charge could be. It's probably manslaughter. Manslaughter in one case can be some fellow who has gone to a bar with his wife or girlfriend and some other fellow makes a comment and the first fellow punches that second fellow. The punch kills the guy. That's a one-punch thing, and all he's doing there.... Now, maybe that's a conditional sentence and maybe it isn't under the circumstances. Of course, manslaughter could be something much, much more violent than that.

Take a case that's already been mentioned, impaired driving causing death. You have two friends. The driver of the car also suffers an incredible brain injury and can barely function now, but he is fit and he understands the judicial process. To put him in jail would effectively be to kill him, yet a suspended sentence is probably not denunciatory enough from society's point of view, because he did cause someone's death. So perhaps a conditional sentence is a good middle road.

All I'm saying is if it's a serious crime, there's no reason why we can't be tough on it with what we have now. We're not changing the ability of judges to send people to jail. They do send them to jail. We're just giving them another tool.

[Patrick Brown, Conservative, Barrie, ON]

You've argued that there's a wide variety in robbery. As an example, a first-time offender kicks a kid off his bike and steals his bike. That individual does it repeatedly and uses violence. Is that an example for which you believe a conditional sentence is appropriate?

[Andy Rady]

I don't know if it's appropriate, but if he pushes him off the bike once, the judge has the option. If he kicks him repeatedly and then he's violent and perhaps a danger to the community, it's unlikely a judge is going to impose that. It's going to be vociferously opposed by the crown attorney. So actually, no, it's not. But to cut it out for that more serious situation also cuts it out for the less serious one, unless we start breaking down what a robbery charge is. That's the difficulty as I see it, because the offences are so broad.

[Patrick Brown, Conservative, Barrie, ON]

Conditional sentencing came in around 1996. Did you believe the Criminal Code was inadequate prior to that?

[Andy Rady]

I have to tell you that I believed at the time that there were some things for which people were going to jail because their activity was beyond that which would have resulted in, properly, a suspended sentence and probation. However, jail was probably too harsh for some of these people, in that it was a sentence over ninety days. They couldn't get an intermittent sentence, they were going to lose their job, it might have affected the family, they might have had other mitigating factors. So I believe we were lacking for that in-between area, and that's the void conditional sentences have filled.

[The Chair, Conservative, Art Hanger]

Thank you very much.

I would like to thank the witnesses for presenting.

I believe this has been a very good discussion. I think we've touched on a lot of areas that drew interest from our members here.

I want to thank you for coming, and again, I apologize for the lateness of getting you to the table.

I again will ask the Probation Officers Association of Ontario for those stats.

[Catherine Hutchison]

Yes, we will.

[The Chair, Conservative, Art Hanger]

All right.

The meeting is adjourned.