Justice Committee on Oct. 16th, 2006

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

So if you're sitting in my chair, if we can't amend this, do we vote for it or do we vote it down? We have about twenty to thirty charges here that are just straight property charges. Some are relatively minor, like possession of stolen property over $5,000, theft from mail, obtaining credit by false pretense, forgery, forged documents. I could go on.

[Catherine Hutchison]

What we were saying at the outset is that we've spoken out for some years about the serious violent sexual offences, especially offences against children. So as we were saying, without an amendment...we quoted the professor who talked about looking at principles. We are not at all speaking in favour of some of those offences, and we've never done anything in the media speaking and being outraged about an offence like that getting a conditional sentence, but we're happy that some attempt is being made to deal with the long-standing issues around the most serious offences.

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

Going to the point that Professor Roberts was just making with Mr. Ménard, in terms of not having any absolutes, are there offences that you would say absolutely you'd never give a conditional sentence to?

[Donald Larman]

Manslaughter, any serious violent offence, any contact or non-contact sex offence--anything against any citizen, regardless of whether it's an adult or child.

[Catherine Hutchison]

The caveat that we gave earlier when we were talking about offences against children was that sexual assault and assault causing bodily harm would still remain as a hybrid. The issue we were raising there was that our concern was for offences of that nature against kids; we were still concerned about those, whereas an assault causing bodily harm, not against a child, we didn't raise an issue with.

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

Do you see a problem with that, in terms of in effect shifting the discretionary call from the judge to the prosecutor? We've heard comments that there's basically no review of the prosecutorial discretion; at least we have review of the judicial discretion.

[Catherine Hutchison]

That's a genuine issue. Obviously we would hope that decisions would be made based on the right, like the seriousness of the offence and so on, but what we have seen--and the reason we're stating these facts up until now--is that the discretion that does exist in terms of sentencing is a result of the principles, and the sentences that have come out, compared to what we had thought at the outset of this in 1996, are certainly not the same. We have talked about our concerns--the denunciation, the deterrence, and the separation of offenders from society when necessary. We're looking at those and we're looking at some of these more serious offences getting conditional sentences. That is our concern.

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

Would you agree with me--and I think we've heard it from some of the other presenters today--that there are a number of things you can do with conditional sentences that you can't do under probation, that you just legally cannot do? We just had a decision from the Supreme Court last week on bodily substances; under probation orders, you can't order those.

Do you agree with me that you can do a number of things with conditional sentences that you can't do with probation orders?

[Catherine Hutchison]

The main difference is the treatment. The normal difference that you see in terms of how that plays out is treatment versus calling it counselling. Often the service the offender receives is the same, and the issue is calling it “house arrest” as opposed to “curfew”. On probation, we have probationers. With curfews, we have many probationers who get treatment as well. The difference with the conditional sentence is that you can call it “treatment” when you order it, as opposed to putting it on a probation order and putting “counselling” or “rehabilitative programming” and so on. That's a difference in the language, but in fact that offender may go to the same program as the one on the conditional sentence. It's the language.

With conditional sentencing, you don't have to have the offender's consent to order treatment; with probation, you do, but in fact the service the offender may get may be the same service. It may even be at the same facility. That's the legal issue about needing consent versus not, but we would still have that offender on probation and we would still assess the offender and send the person to whatever rehabilitation was necessary, using the term that's on a probation order, which is very similar.

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

Ms. Pate, do you agree with that analysis, that there's not really much difference between counselling and treatment? What pattern do you see?

[Kim Pate]

No, I wouldn't agree with that.

I think certainly there is a need for increased resources, and my experience with probation officers whom I've had the experience of working with is that the real concern has been the lack of resources to support these orders. For instance, we were directly involved in one of the very few cases in which a manslaughter conviction resulted in a conditional sentence. There was also a long history of violence against the woman. There were many questions raised about whether charges should have been laid in the first place, about whether it was defensive. The man who died happened to be working for the RCMP. There was evidence that there was difficulty getting evidence to bring before the court. There were many other issues. Suffice it to say that when the judge heard all the information, even though the jury brought back a conviction not for murder, which was the initial charge, but for manslaughter, the decision was taken that a conditional sentence with many other conditions in place was the appropriate penalty. That woman has gone on to try to contribute in whatever ways she can, including raising her and the deceased's children.

I think it's very clear that we need to look at the issues and the conditions that need to be met and the issues raised by the particular individual who's charged. I could go on with many cases involving aboriginal women. I just came back from a trip across the country in the summer. I heard many stories of the number of aboriginal women who were counselled by their own communities to take responsibility in a context in which every lawyer who talked to those women thought they had a defence, and those defences weren't applied. In some of those cases they received community sentences, but not all. Most of them, in fact, spent extensive periods of time in prison as well. We would not want to see the removal of a conditional sentence for those cases.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Moore is next.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair.

Thank you, witnesses, for all your testimony.

I found it interesting today. We've heard a lot of testimony about offenders, what happens after an offence has been committed, and the lack of balance, as I see it, between the rights, the feelings, and the sense of justice of the victims.

A good part of the reason why this bill is being introduced is to recognize the seriousness of some offences. In opposition, some people seem to have the sense that conditional sentences came down from on high and they've created a panacea, but that's not the case. At the time conditional sentences were brought in, they were made available for some offences. Some people feel the use of conditional sentences has gone beyond anything contemplated at the time; they're used too frequently, and they take away from a sense of justice and rehabilitation.

I would suggest to the Council of Criminal Defence Lawyers that there's probably a reason why you request a conditional sentence order rather than a term of imprisonment for your clients. I would suggest that if you were to request a term of imprisonment instead of a conditional sentence order you wouldn't have them as a client very long because there is a deterrent effect. People do not want to go to prison. They would rather serve a conditional sentence.

We're trying to build some common ground with the bill. My question for the defence lawyers is, are there any of the offences included in Bill C-9 that you feel a conditional sentence should not be available for?

[Andy Rady]

No, and I'll tell you why. It's because of the broadness of so many offences under the Criminal Code. As I said earlier, a robbery is not a robbery. If the offences were tighter, that would be one thing, but if you don't want it to apply to certain situations within a robbery, then you'd have to say that.

The difficulty is if you exclude it completely, then you're excluding it from that first offender who is 19 and pushes the kid off the bike. A bank robber is probably not going to get a conditional sentence. The judge is likely going to sentence him to jail and the judge can see that. They're also going to take into account the victim impact statements in every case and the feelings of the victims in these cases. Having conditional sentences doesn't mean they're not going to go to jail; it just means that in those lighter areas of a particular crime they may not have to, yet probation may not be light enough. It's an in-between measure. It's something more than probation and something less than conventional jail. It might allow them to keep their job, or go to school, and it might be for a first offender. If it's a hardened criminal, they're not going to get it anyway. It doesn't really take anything away from the judges.

[Marvin Bloos]

Mr. Moore, if I might respond to your initial premise, I once appeared in front of a wise judge in Regina. He took the position that judges are representatives of the community; they in fact reflect the community feeling about a particular matter. He saw his role as passing the sentence of the community. He would take into account the offender, the victim, and the community circumstances.

I've had cases of impaired driving causing death where there were two best friends and one was driving and the other was killed. I've had one case where the family didn't want anything to do with that individual. I've had another case where the family wanted to forgive that individual and did not want to see him go to jail. I ask you, for every family that wants a harsher punishment in the sense of a conditional sentence, are we then to say to the families who think the person should be forgiven that there should be no penalty and that person should walk out of court? In my respectful submission, that's why we have a judge to balance all these considerations.

[Rob Moore, Conservative, Fundy Royal, NB]

With respect, I think if we were to go into many of these communities, you'd find that some of the decisions that are coming down from judges, where the community would expect the offender would serve jail time, even on some of these so-called property offences.... Some of the testimony would lead us to believe that property offences are not serious. Whether you're in B.C. or where I'm from, in New Brunswick, property offences are serious, and the sense is that there is not a deterrent effect in the conditional sentencing. And we're seeing recidivism.

I recognize that there has to be discretion, and by taking away conditional sentences for some of these offences that past parliaments have given this cap of ten years--past parliaments have drawn that line--we are saying as a Parliament that conditional sentences are not going to be available, but there's still a broad discretion. There are other defences where conditional sentences are not available, but there's still a broad discretion, when it comes to sentencing, on the part of the judge.

For the Probation Officers of Ontario, in your initial comments you said you had some points to add on rehabilitation, and I would be interested to hear them. You also made the comment that if jail is not a deterrent, then why are offenders warned that breach of a conditional sentence could lead to jail time? I find that persuasive, because we've heard that actually, oh, no, a conditional sentence is sometimes harsher than jail time. I think the same thing could apply to an offender who's on a conditional sentence as to someone who's contemplating committing a crime and getting caught, that there is a deterrent effect to having to serve time in jail. I'd like you to comment on those two things.

[Catherine Hutchison]

I am answering this, but first I'd like to clarify the programming comment that was made about lack of resources. The lack of resources in a community would apply regardless of what form of supervision you were on. I want to clarify that. If there's a community that lacks a certain type of programming for offenders, that would be a lack regardless of whether you're on conditional sentence, probation, or so on.

In terms of the deterrent effect we were talking about, it was just to say that when we have seen some previous testimony, or references, or research that there's no deterrent effect at all to jail, that is not our experience in dealing with offenders. We deal with supervising, literally, hundreds and thousands of offenders, and in fact for some offenders there is a deterrent.

Regarding the comment about the seriousness of the offence and that the judge reflects the community values and that would come out, we're not dealing with these sensational media cases, these three cases; we are seeing all of the cases. So we're not saying, I read in the paper about one such horrific case; we are seeing all of them. After you see, for example, hundreds and hundreds and hundreds of serious sexual offences against children, you would have to say in what community does that sentence that judge has handed down reflect the values of that community? Is it the value they placed on children? That's where I'm saying some of our concerns are coming from. We're actually seeing the cases, all of the circumstances--the prospects for rehabilitation, the offender's attitude--and that's the source of our comments.

[Rob Moore, Conservative, Fundy Royal, NB]

I think that's important.

Do I have a second, or a minute, or thirty seconds?

[The Chair, Conservative, Art Hanger]

You have one second, but I don't know if you can—

[Rob Moore, Conservative, Fundy Royal, NB]

I think that's an important point, because there are individuals who have suggested that someone is condemning conditional sentences because of one or two high-profile, sensational cases, and you're testifying that it's on the hundreds of cases.

[Catherine Hutchison]

If there are, for example, hundreds of serious sexual assaults, we're not talking about one. If we looked at the numbers in Ontario, if we're supervising all of them, then we would know that there are many serious sexual assaults. No, it's not as many as the frauds, certainly, but there are many, and if you looked at the seriousness of that offence, you would wonder whether that sentence does reflect the values of that community. I would question that, because I would hope, at least personally and professionally, that we place more value on our children and that we place more value on those behaviours as being inappropriate and dangerous.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Thank you for your excellent testimony. It was very helpful.

First of all, I want to talk about how these bills normally get to us, and, Ms. Saulis, you've mentioned that there was no consultation with you in any form. Maybe to you and the defence lawyers, is consultation something that you usually obtain from the government prior to the passage of a government bill?

[Jolene Saulis]

Yes, there have been some circumstances when NWAC has been consulted. For example, in legislation concerning the Indian Act, Indian Affairs often comes and consults with major national aboriginal organizations.

[Marvin Bloos]

We've been consulted regularly since 1992, and I've been to Ottawa and Toronto any number of times to meet with the Department of Justice.

Prior to coming here today, I spoke to Judge David Orr in Newfoundland, who is the chair of the provincial judges law section. I asked him if they had been consulted. I didn't know if there was a process. He said no, they had not been consulted on this bill.