Justice Committee on Oct. 16th, 2006

[The Chair, Conservative, Art Hanger]

All right. I would hope not. I think we have a good debate going with Mr. Bloos.

[Marvin Bloos]

I think Mr. Thompson and I approach this from different premises, because what we've heard today is that when you give individuals in the community all the information and then ask them what sentence they would impose, they come pretty close to the sentence imposed by the judge. So if we're going to establish the laws in Canada based on the sensational details people read in the newspaper, we want a well-informed community. We've been told over and over again deterrence isn't what keeps people from committing crime. Most of my clients aren't thinking. A lot of them are young people who do foolish things and now they have to pay the price through the conviction and sentence process.

I echo what my friend from the native community has said. In the north, these individuals stay within their communities. They work with the elders. They are given an education, they're given drug treatment, and they're taught proper respect for women, which is a big problem in the north, as the men don't respect the women. They do all of that within the context of a CSO. If they're sent to jail, they're out of the community. They don't face the situation; they don't face their problems. They're not working with the elders and they're not learning. They come back probably as bad as they left.

When we're dealing with these orders, it's not a matter of what the community might like. I'd like the community to be informed and then hear what they say, because these are a relatively small percentage of sentences based on the statistics in front of this committee. I understand the sentences we're talking about in Bill C-9 are approximately 3% of the sentences imposed every year in Canada. Five percent equal conditional sentence orders or something like that, or 8%, and of the longer sentences in the offence categories, we're talking about perhaps 3%.

The wheel isn't broken, as I've said before. I think it's working very well. We've got a good judiciary in Canada. Day in and day out, they try as hard as they can to get it right, to do the right thing in that individual case. They sometimes make mistakes. That's where I come in. I go on the appeal. But they're working very hard to get it right. They read the papers. They have neighbours who complain to them. It's in the newspaper all the time about the easy sentence someone got. They're aware of that. But they are trying to do justice in a specific case based on the best information they're given.

[The Chair, Conservative, Art Hanger]

Ms. Pate, quickly, please.

[Kim Pate]

Thank you.

In terms of the victims, as I think your members and other members of the committee are well aware, our organization and the Native Women's Association of Canada work with women who have been victimized as well as those who are criminalized. It's our experience that most people, if they're basing their information on what's in the media, don't have the full information or the full picture. It's our experience that those who are victimized are more likely to be women, and especially aboriginal women, in the context of some of the serious offences being talked about. I think the report that has come out recently about the rate of victimization and criminalization of aboriginal women speaks to that. I'll just underscore what Ms. Saulis said about the report that was released today.

We also have to take into account the fact that we've heard MPs from the party that introduced this legislation talk about the legislation and clearly make mistakes about it. If we're relying merely on what people are being told when you go out to speak, without first giving information, I think we're following a false premise. I would suggest that once people have the full information, understand why a sentence was imposed, more likely than not you'll see support for those sentences. That certainly has been our experience working with those who are victimized as well as those who work in the system, including the police.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Merasty is next.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

This is to Jolene, Kim, or Lucie. I myself come from a first nations community and grew up on a reserve, and from what I understand there are systemic barriers that contribute to the higher rates of incarceration. One mechanism to try to address this was the restorative justice approaches that were introduced.

I think Bill C-9 actually removes the restorative justice approach in large part, potentially, because many of the offences are listed under Bill C-9. What other mechanisms do you think would work if Bill C-9 passes and these restorative justice approaches are taken away?

I know in my community we've had fly-in courts in which maybe sometimes the judges, the prosecutors, and the defence lawyers have an agreement before they land in the community on the outcome of some of the--

[The Chair, Conservative, Art Hanger]

I'd like to just make a correction on one comment you made. The bill does not totally take away restorative justice, nor does it take away CS.

[Sue Barnes, Liberal, London West, ON]

On a point of order, this is his time, Mr. Chair.

[The Chair, Conservative, Art Hanger]

I know, but I was just correcting a misunderstanding, obviously.

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

No. In large part, when I look at a lot of the restorative justice cases that are occurring out there.... When you look at Hollow Water, which the minister addressed here earlier, I think he was unsure if it would, and was not absolutely sure that would happen; I think the minister himself was confused on this issue.

Being remote, flying in, lacking a court...what other mechanisms do you think could be employed if this fails or if that alternative is potentially removed?

[Kim Pate]

I think there are some other mechanisms. Certainly in the past we've seen probation and other options used. The reality is, though, that because conditional sentences have become so entrenched in our system, it's more likely to be a conditional sentence option in particularly the more serious cases, which in our experience are the ones in which the aboriginal communities and the communities up north have wanted to see those approaches. That's where we're seeing increased use, or some of the greatest use, of conditional sentences, and Jolene can correct me if I'm wrong, and it's where we hear from elders and from members of those communities that the person who is the predator....

I was surprised, actually, to hear from our friends at the probation service that there are many hundreds of those cases, because certainly we're not aware of many hundreds of child sexual abuse cases going to conditional sentence. So I'm very interested in seeing the stats as well.

In fact, what happens, particularly in some of the northern and aboriginal communities, is the elders in those communities are respected and are asked for their support and advice on what should happen in terms of sentencing. If they say this fellow has been here a while and we don't think he should be continuing on, chances are he won't be accepted by even the community to be looked at for a conditional sentence. So some of the screening is happening there.

Some lawyers will still argue for those individuals; probably some of them still get those. My guess is that if they do, they have very stringent conditions placed on them and probably they're not held or kept in their own communities--just from the stories I've heard.

There's no doubt that there are concerns. Women's groups, ourselves included, and the Native Women's Association as well, have expressed concern over the years about really lenient approaches being used in cases of misogynist violence.

The fact that we have systemic discrimination already in our system and that sometimes our judges suffer from using bias is not new--there have been far too many aboriginal justice reports to challenge that--but the reality is that an arbitrary removal of conditional sentences based on the provisions in Bill C-9 is not going to solve that problem; it is quite the contrary.

[Jolene Saulis]

She said it all.

[The Chair, Conservative, Art Hanger]

Are there any other questions?

[Gary Merasty, Liberal, Desnethé—Missinippi—Churchill River, SK]

I think one of the big issues.... This is getting into the symptom issue. You know, heart attacks kill; heart problems are the symptom....

There are other factors in life that contribute to this discussion we had earlier.

What would you recommend, given Ms. Barnes' earlier comments? At this stage of second reading, what types of amendments or possibilities could you suggest for the committee to consider as we move forward?

[Jolene Saulis]

I'm going to reiterate that consultation needs to take place. The removal of conditional sentences, or whatever you call it--I see it as a removal--will greatly impact aboriginal people. It would add to the overrepresentation of aboriginal people in the justice system.

We are consistently seeing a lack of programming. Aboriginal people are always getting out of jail last. They are always classified higher, at maximum--60% of aboriginal women in jail are maximum; 46% are medium.

I think you need to consult with the organizations that are acting as the voice of these women. Clearly, being in an institution.... You always hear the argument, “Who's going to listen to them?” If they can't do it, then I need to speak on their behalf. Consulting, hearing these women's stories, and hearing about...again, I'm going to go back to the root causes of why these people are in jail. At least through the consultation process you will be able to say that we took the time to listen, we took the time to address the overrepresentation of aboriginal people, and we're looking in a direction to address aboriginal women in particular in regard to Bill C-9.

I still believe that consultation is probably the route to go.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Merasty.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is for Mr. Bloos or Mr. Rady. There is something that I am puzzled about. You said it is easier if you use conditional sentencing. Currently, there are street gangs in Montreal. I just heard someone say that criminals have no knowledge of the law. They use youngsters under the age of 14 because they know that the sentences will not be as harsh. In this way, young people are employed as street pushers, and this is spreading all over Montreal. A member from the Bloc has even written a book about this very topic. The problem has reached endemic proportions.

Now the sale of drugs does not involved violence as such. Deals are made, and that is all. But on the other hand, this leads to prostitution, theft, assaults of the elderly, etc. I know for a fact that defendants are overly protected, but I am speaking on the behalf of the victims, because there are far more victims than you might think, for instance, there are people who become addicted and take up prostitution. In Quebec, this frightful situation lasted for two years. I do not wish it on anyone. The entire system was contaminated.

You said that aboriginal people are overly represented. We know very well that most Aboriginal people—as Ms. Saulis just said—live in poverty. We have been working with Legal Aid Certificates. How do you react when you have a legal aid certificate? Right away, you would enter a guilty plea so as to avoid a trial. This is how many Aboriginal persons end up in jail because the legal aid grants are insufficient to pay for their defence.

I would like to hear what you have to say about this

[Andy Rady]

Maybe I can answer that.

I do a lot of legal aid work. I represent a lot of aboriginals, both through legal aid and by way of their paying me privately. I don't make any differentiation between the two and how they're treated by me.

The difficulty seems to be that everyone who consults a criminal lawyer expects that lawyer to be their advocate in court, whether they're pleading guilty or having a trial. They all have the presumption of innocence.

In terms of the native community being overrepresented, there are two reserves near where I come from in London, and they are overrepresented in that more natives than non-natives per capita are being charged with offences. So I don't know how to answer that question, because it seems we have a lot of natives being charged in the first place. So obviously in some cases I'm representing more natives--given that they're part of the population--than non-native people. I don't know if that really answers your question.

In terms of what we are supposed to do, it's not just to make a deal. Sometimes it is. But at all times it is to see that they're treated fairly by the justice system. And that's what we're trying to do in all of those cases. Whether that means going to trial or whether it means a guilty plea and trying to mitigate their sentence or get a sentence that's fair and just for them, that is the role of any criminal defence lawyer.

[Marvin Bloos]

I would like to add to that, sir.

With respect to your example of the street gangs, starting off with the 14-year-olds and on up the chain, I can tell you that in Alberta the offenders at the lowest end, the ones who have just been dragged into it and are still young and don't know what they've gotten themselves into, if they're involved in a minor way, might be eligible for a conditional sentence order. But our court of appeal has made it crystal clear that anybody involved with drug trafficking for commercial purpose is going to jail. There is no availability in Alberta for a CSO for those kinds of offences because of the appeal pronouncements our court has made, and that applies, I believe, to the Northwest Territories. I'm sure the same is true in Saskatchewan.

When you get those young kids who don't know what they're doing and get dragged into it because of a friend and are in the car one night selling to somebody and get caught, those are the guys who you can still reclaim. Those are the ones you can help. Sometimes, if the right conditions are there, they can get a CSO, but otherwise, at least in Alberta and in the west, they're not getting CSOs for those kinds of offences. They're treated very seriously. Gangs are a problem in Edmonton and in Calgary. The community is concerned and sentences are not light for persons involved in gang activity, I can tell you that.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Do you have another question?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Yes.

[The Chair, Conservative, Art Hanger]

You may have to hold it.

Mr. Lee.

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

I've enjoyed the discussion here this afternoon very much.

I've perhaps already reached the conclusion before I got here today, but today just confirms it, that we all know that this bill doesn't get rid of conditional sentencing. It never intended to. Any pretension otherwise is misleading.

The ambit of the provisions goes way beyond any rational approach to designing a sentencing regime because it includes things such as unauthorized use of a computer and--I'll mention it again--cattle theft. The chair pointed out at some point that you could use a cow for a terrorist offence and then you'd really be into some serious territory.

I'm disturbed by that and the criteria. In other words, using the criterion of the ten-year maximum is anything but reasoned, almost to the point of being irrational, given the state that the Criminal Code is in, in its whole listing of maximum sentences.

So we have a very difficult situation here in which we're expected to be reasonable and rational in designing laws and enacting them. I can't find a way out of this, other than rejecting the bill, yet the public seems to want a bill. I mean, some people want to get rid of conditional sentencing, but the government isn't going to do it, and I don't want to do it in opposition, and professionals in the field all say don't do it.

I want to ask Mr. Roberts this. Is there any quick fix here? I know you made some suggestions. Is there any quick fix that you could see here that would allow us to reach out and grab a hold of something that's reasoned, so that in the end the judges will understand it and that would allow the public to see a shift that meets the political need and still allow aboriginal communities to get on with the good work they've been doing in sentencing and accomplish some of the other objectives?

[Dr. Julian Roberts]

My simple answer would be that I'd tell the government to go back to the drawing board. If you have the bill as it stands and you have no judicial discretion, it's not going to be an effective piece of legislation. It's not going to achieve the goals, as I mentioned.

One thing you could do is you could make it presumptive: for an offence proceeding by way of indictment, with a maximum penalty of ten years or more, the offender will be presumed not to receive a conditional sentence, or language to that effect. This would permit a court in exceptional circumstances, for example, with respect to the aboriginal issue, if restorative justice was uppermost in the court's mind, and the conditional sentence is, of course, a hybrid--punitive and restorative--to impose a conditional sentence in that case, notwithstanding the language of the statute. That's one way of doing it. You could allow the courts some souplesse, some ability to impose a conditional sentence, although there would be a strong statutory presumption against it.

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

Would we have to rely on the Constitution and the sidebar wording of the charter to allow aboriginal communities access to that kind of a special arrangement?