Justice Committee on Oct. 16th, 2006

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. It is Monday, October 16, 2006.

Here are the orders of the day: pursuant to the order of reference of Tuesday, June 6, 2006, Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment).

Appearing before the committee are a number of witnesses. I'll just refer to the organizations they represent: the Probation Officers Association of Ontario; the Canadian Council of Criminal Defence Lawyers; the Native Women's Association of Canada; and the Canadian Association of Elizabeth Fry Societies. We also have one individual, Mr. Julian Roberts.

First of all, I want to apologize to the witnesses sitting before us. We had some committee business that we had to contend with, and unfortunately it ran a little longer than anticipated. I know you were inconvenienced by having to stand out in the hallway. I apologize. The committee apologizes to you.

I would ask that we now proceed according to the order that appears on the orders of the day. The Probation Officers Association of Ontario can begin.

[Donald Larman, President, Probation Officers Association of Ontario]

Thank you, Mr. Chair.

My name is Don Larman, and I'm the president of the Probation Officers Association of Ontario. With me today is Ms. Cathy Hutchison, past president of the association.

The Probation Officers Association of Ontario is a not-for-profit organization representing the professional interests of the probation and parole officers in Ontario since 1952. In addition to many other functions, POAO provides policy and legislative positions on relevant criminal justice topics and is separate from the bargaining agent.

We thank you for the invitation to share the perspectives of those working on the front lines in the supervision of offenders.

The POAO supports the appropriate use of community supervision in the rehabilitation of offenders and protection of communities. The mandate of the probation officer is to protect society from offender recidivism through assessment, supervision, and enforcement. In Ontario, officers supervise approximately 53,000 offenders on probation and approximately 5,000 on conditional sentences each year. In light of the varying circumstances of each offender and each offence and the amount of information we have pertaining to the cases, we fully understand and appreciate the concept of individualized sentencing; that is, this offender, this offence.

When conditional sentencing was introduced in 1996, we understood the intent, as did all others who heard the messages about its purpose. The language in section 742.1 indicating that conditional sentencing was to be used in accordance with the sentencing principles, and in cases where the offender serving the sentence in the community would not endanger the safety of the community, certainly served to emphasize this point.

The reason for our testimony today, and undoubtedly the reason for attempts to amend conditional sentencing legislation, is the great concern surrounding the fact that in some cases very serious offences are resulting in conditional sentences. The traditional system of judicial discretion has been questioned by many as the conflict between the original description of this regime and the reality of its use is apparent.

While some may say that it's easy to criticize decisions made by judges who are not able to speak out in defence, we are not here with the purpose of criticizing. Perhaps, as suggested previously, the principles with regard to use of this sentencing regime are too broad, and perhaps the results of case law such as Proulx have given such direction. Regardless of the reason, our association has spoken out for many years on the inappropriate use of conditional sentencing in the cases of the most serious offences.

While there are other issues of concern, such as enforcement, resourcing, and monitoring, we are speaking today about the issue of appropriate offenders and offences for conditional sentencing. For the reasons already stated, we are in support of Bill C-9, which, although not perfect, as some have pointed out, certainly makes an attempt to address the grave concerns regarding which offenders should be eligible for this option. Examples of these, such as causing the death of a child, serious violent and sexual offences against children, driving offences resulting in death, manslaughter, and others, are certainly not the ones that we or the public ever imagined would be used for this house arrest sentence.

In cases involving serious violent and sexual offences, as well as those resulting in loss of life, it is our submission that the principle of proportionality is not met by using this imprisonment in the community. How is it proportionate that the offender in such cases does not serve one day in jail for their actions, and how does this meet the sentencing principles of denouncing unlawful conduct, deterring the offender and others, separating offenders from society where necessary, and promoting a sense of responsibility in offenders? It seems that in such cases the only principles being prioritized are rehabilitation and the principle of using the least intrusive measure. In such cases, we do not believe that the gravity of the offence is acknowledged sufficiently by a jail-at-home sentence. In addition, we submit that more attention needs to be given to the suitability of offenders for this sentence, particularly their history of opportunities for community supervision and compliance with these.

Such information can be conveyed to the sentencing judge through a pre-sentence report, and we submit that this information should be requested with greater frequency if a conditional sentence is being considered.

A professor who testified to this body a few weeks ago made a point with which we concur. He stated:

The reality, in my opinion, is that we tend to overestimate the denunciatory and deterrent effect of a conditional sentence. This is because of what I would consider to be a questionable assumption that is made in the case law dealing with conditional sentencing. That assumption is that a conditional sentence is more like a jail term or a period of incarceration than it is like a period of probation.

He went on to say “In my respectful submission, this inflates the impact of a conditional sentence.”

We agree with the statements of this professor, who noted that conditional sentencing is an appropriate response “where the offence is not so serious that permitting the offender to remain in the community provides an unjust response to the offence”, and further, “will not pose an appreciable risk to the community”. Finally, he noted that conditional sentencing is appropriate “where priority should be given to rehabilitation or restorative justice”.

Cathy.

[Catherine Hutchison, Past President, Probation Officers Association of Ontario]

I'm just going to continue from there.

The reality that we have come to speak about today is that a conditional sentence is not a term of imprisonment; it's in fact closer to a term of probation than to incarceration. It is a community-based sanction that can be used appropriately for certain offences.

The aspect of this sentencing regime that we have noticed disturbs many is the lack of honesty around the description of the sentence. In fact, offenders serving this sentence are not in jail. They live at home; they go to work, school, and appointments and shop for necessities; they attend religious places of worship and have other types of outings. Many such offenders have the house arrest condition or curfews, except for these defined purposes. However, for many offenders, the exception to house arrests are quite numerous. Aside from the house arrest or curfew conditions that may appear, many of the offenders have conditions that would also commonly be found on probation orders.

To state that these offenders are in jail in the community is misleading, in our submission. The main difference from probation in the offender's eyes, where there is no house arrest on the order, would be the enforcement mechanism. Where there is a house arrest condition on the order, the primary difference is the removal of spontaneity in the offender's life, in terms of the ability to plan outings—and obviously they have travel restrictions—and there's a lack of ability to attend non-essential outings, such as for strictly recreational or entertainment purposes.

While we acknowledge and appreciate that some offenders are most diligent in adhering to the terms of their order and are working towards rehabilitation, we also acknowledge that many aspects of the sanction depend upon an honour system. When the offender is at home serving his or her jail sentence, he or she may enjoy the freedoms that the rest of society enjoys, including having friends over, having parties, watching television, using the Internet, having unlimited telephone use, enjoying time with their families, etc. This is not jail, and calling it such is undoubtedly one of the contributors to the erosion of public confidence in the justice system. Further, for victims who may feel threatened by the presence of the offender in the community, advising them that the offender is in jail, and yet at home, may not address their fears or needs for safety.

To indicate that such a sentence has a great deterrent value for serious offences and offenders is not accurate, in our opinion, and continues to ignore the many resources and bodies of research revealing that the public, front-line professionals and the victims are not supportive of community-based sentencing for very serious crimes of violence. Professor Roberts is here today, so I don't need to go into much of the research, but to ignore these bodies of research and the Department of Justice's own fact sheets is to ignore those who are key constituents in the justice system.

Aside from these issues, we've also observed the comments made during some of these hearings that jail does not serve as a deterrent. While some of the most recidivist offenders may not respond to any sanction or attempt at rehabilitation, there are some for whom jail is a deterrent. If jail did not have any deterrent capacity, then why are offenders, for example, cautioned that non-compliance with various types of sentences will result in a jail term? If no deterrence existed, why do we not have line-ups of offenders at our doors to tell us of all the undetected offences and breaches they have committed? The reality is that conditional sentences carry less deterrence than true incarceration, and this further explains the frequency with which offenders will plead guilty in exchange for this opportunity to be in jail at home.

In addition to these issues around the transparency of the description of the sentence, there are issues frequently mentioned and questions raised, including the level of monitoring, resourcing, and enforcement of conditional sentence orders. We do have comments on each of these, if time permits, but we may have to leave those for later.

We are relieved that the very frequent practice we were seeing of using conditional sentencing in child sexual offences, both child pornography and contact offences, will diminish somewhat due to the passage of Bill C-9. The concerns we would still have related to this bill is that some of the hybrid offences that could have child victims, such as sexual assault or assault causing bodily harm, could still result in a conditional sentence. So without an amendment to this bill, we would hope that the sentencing principle related to abuse of children would be closely adhered to, and we would hope those offences wouldn't result in a conditional sentence.

For those who are concerned that the passage of Bill C-9 would result in excessive sentences of incarceration, a lack of community supervision, and/or a lack of restorative justice opportunities, we do have some comments of relevance or points to remember. We probably don't have much time to get into them here, but there are, as people know, the aggravating and mitigating factors remaining, and judicial discretion to determine the sentence would remain, so we would still be going from the range of a suspended sentence plus probation, up to, obviously, incarceration.

It's been recognized that in many conditional sentences the term is longer than the period of incarceration would have been. Also, taking into account that offenders serve only two-thirds of the sentence in jail, the term of actual incarceration would be less than the conditional sentence.

The reality is that if the circumstances of the offence and the offender were so compelling as to warrant a more lenient sentence, this would be the situation as it stands now. We note that some offenders wouldn't go into custody at all. They would get straight probation.

Note, too, that some of these offenders, first offenders with one of the potentially excluded offences, would be eligible for Ontario parole. The rates of provincial parole in Ontario fell from about 59% in 1993-94 to about 22% in 2003-04. One of the significant contributing factors was conditional sentencing. Some of these offenders will in fact be suitable. In such cases, if they were given a term of incarceration, they might become eligible for parole at one-third and then go on probation. So there was still adequate opportunity for community supervision of these offenders.

[The Chair, Conservative, Art Hanger]

Thank you. I know your presentation is somewhat longer and your information is valuable, but we have to hear from some other witnesses.

I want to ask one question for clarification. You represent the Probation Officers Association of Ontario. You have an arrangement with the federal government. Do you monitor conditionally sentenced individuals?

[Catherine Hutchison]

Yes, probation officers are the conditional sentence supervisors.

[The Chair, Conservative, Art Hanger]

Does that apply to all probation officers in every province?

[Catherine Hutchison]

Yes, as far as we know.

[The Chair, Conservative, Art Hanger]

So it's not any special kind of arrangement then. You monitor them according to the conditions laid out.

[Catherine Hutchison]

Yes.

[The Chair, Conservative, Art Hanger]

I'm going to have to adjust the schedule slightly. I'm advised that one of the presenters has a commitment. So I'm going to turn to Jolene Saulis of the Native Women's Association of Canada.

[Jolene Saulis, Team Lead, Policy and Research, Native Women's Association of Canada]

I'm from the Native Women's Association of Canada in Ottawa.

The proposed change in conditional sentences undermines the fundamental principles of sentencing, which emphasize elements of restorative justice. This is especially true for aboriginal populations, for whom restorative justice is rooted in a healing world view.

Aboriginal women, children, and families understand fear. But to see a fear-based approach to changing legislation and to blame it on conditional sentencing seems a regressive measure. The following quote from a parliamentary publication indicates such a fear-based rationale:

The fear is that to refuse to incarcerate an offender can bring the entire conditional sentence regime, and hence the criminal justice system, into disrepute. In other words, it is not--

[Marc Lemay, Abitibi—Témiscamingue, BQ]

With all due respect, we are going to have to call upon the translation service, because you did not submit...

Oh, pardon me, I am speaking too fast......

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

No, the same comment can be made for everyone. I am going to say this once and for all. Since you did not submit your document in both languages, our poor interpreters cannot keep up with you. Therefore, if they are unable to interpret what you have to say, we will be unable to take notes and have interesting and intelligent questions to ask you.

I would suggest that you speak slowly. If necessary, opposition members will ask fewer questions. I see that Mr. Petit agrees with me and that he is also willing to ask fewer questions.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay.

Ms. Saulis, please continue.

[Jolene Saulis]

Okay, I'll slow down.

In other words, it is not the existence of conditional sentences that is problematic, but, rather, their use in cases that seem clearly to call for incarceration.

We would not like to see a fear-based response to crime that would eventually hurt especially vulnerable populations, such as aboriginal women and youth.

Aboriginal women are often convicted of crimes that are related to poverty and crimes that are related to their own victimization. Many of these crimes are currently eligible for conditional sentencing under sections 742.1 to 742.7 of the Criminal Code. More emphasis should be placed upon providing the resources necessary to ensure the safety of aboriginal women and their children within their homes and communities and within society in general. Initiatives are also needed to improve the standard of living conditions for aboriginal women and their children. Without first resolving these issues, Bill C-9 will further compound the issue of overrepresentation of aboriginal women in the prison system.

Aboriginal women play an integral role within our communities. They are the givers of life and are central to aboriginal traditions, government, community, and our ceremonies. They are responsible for maintaining a collective efficacy of our communities. Given that Bill C-9 will result in an increase in the incarceration of aboriginal women, it is predictable that these communities will suffer culturally as collective efficacy diminishes.

It is clear from the Minister of Justice for Saskatchewan that the concerns of compounding the problem of overrepresenting aboriginal populations in jails and prisons is a factor to be considered in this legislation. Mr. Frank Quennell, Minister of Justice for Saskatchewan, has said many times that measures that limit conditional sentences could put at risk the province's unique justice programs aimed at its large aboriginal population. Aboriginal people now make up one in five admissions to the Canadian Correctional Service system, while they represent only 3% of the general population. The justice minister from Saskatchewan stated that Saskatchewan has the highest percentage of aboriginal residents in the whole country, and it has had some success in encouraging the use of penalties focused on native traditions, known as restorative justice, rather than prison time. The programs encourage native communities to find alternatives to jail, such as providing restitution to the victim of the crime, volunteering with a charity, or attending counselling or an addictions program.

These proposed changes may also be problematic for Nunavut, where, in 2005, territorial judges handed down 203 conditional sentences compared to only 189 jail terms.

It is clear, therefore, that there is a need to develop more community-based resources to ensure that aboriginal women who are criminalized are able to successfully complete their sentences within their communities. Ensuring that women are able to maintain their role within their family and community throughout the course of their sentence is integral to the sustainability of our communities.

Canada's judicial system is premised upon Eurocentric values and is at its heart an adversarial system. When an individual commits an act, it is seen as criminal. It is considered a crime against the state, and reparations are generally made to the state by way of punishment. In contrast, aboriginal traditions dictate that wrongs are committed against individuals and the community. Reparations are made as a way of restoring balance to the community and restoring relationships among community members. In an era when people are becoming more disenfranchised from each other, these community-based efforts would go a long way to building much sought after social capital.

In recent years these ways and beliefs have been acknowledged for their effectiveness and have garnered a great deal of support from both within and outside the aboriginal communities. Conditional sentences are well suited to the concept of traditional justice, as they allow offenders to be supervised within the community while giving them the opportunity to work towards restoring the imbalance that resulted from their actions.

Restorative justice initiatives are intended to add cultural relevance to the mainstream criminal justice system, but aboriginal men and women have not shared equally in this experience. Rather than focus on increasing rates of incarceration through the elimination of conditional sentencing, efforts should be made to ensure criminalized aboriginal women are given the opportunity to participate in restorative justice practices.

In addition to being overrepresented in the charging and imprisoning processes of the criminal justice system, aboriginal women are also overrepresented as victims. This victimization is often centred upon sexualized and racialized violence. Bill C-9 does nothing to address the root causes of this victimization and criminalization, nor does it address the sexualized or racialized violence that many aboriginal women face throughout their lives.

No in-depth examination of the impacts of conditional sentencing on aboriginal women, families, children, or communities has been done, and one is needed. This research must capture how conditional sentencing practices are currently applied to aboriginal women and how the criminal justice system, both federally and provincially, can better address the needs of aboriginal women.

The Government of Canada has failed to consult with relevant stakeholders, including the Native Women's Association of Canada, with respect to Bill C-9. In failing to do so, they have not considered the broader social or cultural impacts that this bill will have on aboriginal women, children, and our communities.

The Government of Canada should concentrate on building more diverse community-based programs, such as restorative justice initiatives. By diverse, we mean diversity in settings, since aboriginal people exist in all sorts of settings--rural, urban, remote, and far north. There should also be an examination of how changes in conditional sentencing interrelate with other social and global developments in the areas of social, health, education, and traditional culture for indigenous populations, since Canada's indigenous population is in relationship with other worldwide indigenous populations.

There has been a significant amount of effort put forth by aboriginal populations, in partnership with government, that is meant to deal with the deep-rooted causes of crime. These should not be overlooked by a policy that seeks to send more people to jail. People in jail do their time, and they are not afforded development opportunities. They are burdened with labels and records that stunt their development potential.

Merci.

[The Chair, Conservative, Art Hanger]

Thank you very much, Ms. Saulis. I understand you have an appointment you have to reach. Thank you for your presentation.

I'd like to turn now to the Canadian Council of Criminal Defence Lawyers, Mr. Bloos and Mr. Rady.

[Marvin Bloos, Honourary Chair, Canadian Council of Criminal Defence Lawyers]

Thank you, Mr. Chair.

The Canadian Council of Criminal Defence Lawyers was formed in November 1992 to represent the voice of the criminal defence bar across Canada on issues of national importance. We have representatives on our board of directors from every province and territory. I'm the immediate past chair of the Canadian Council. I've also been going to the Uniform Law Conference with the federal Department of Justice as part of its delegation when we look at changes to the Criminal Code each year.

I was asked to come today because I could bring a perspective from the west. I practise in Alberta, but before practising there I was with the Saskatchewan Legal Aid Commission for 12 years, where I had a large aboriginal caseload. I now just do appellate work. A good portion of my work concerns appeals on conditional sentences. I work in Alberta, British Columbia, and Nunavut. I have a perspective from Nunavut, because Nunavut, as we've just heard, is very concerned about this legislation--the defence bar, I suspect the crowns, and judges I've talked to.

I've been doing defence work for thirty years, so I have some experience in this area. The Canadian Council of Criminal Defence Lawyers is opposed to Bill C-9. In our view, the wheel isn't broken, so why are we trying to fix it? We have difficulty understanding where the hard evidence is that indicates there's a problem. We know about the individual cases that have been raised, and we don't disagree. Bad decisions are made, and that will happen every day because we have a human justice system. I've spoken to judges across the west, Alberta, Saskatchewan, and the north. I've spoken to defence counsel, I've spoken to crowns, and I've spoken to one probation officer. I don't think the probation officer I spoke to in Edmonton shares the view of the Ontario probation department.

Here are the main themes. I bring about ten points to you from the various individuals I have spoken to. The concern we have and that I bring today is that there will be a great increase in the costs associated with building more prisons, housing more prisoners, and the associated legal proceedings if Bill C-9 passes. We heard earlier that last year in Nunavut there were something like 250 conditional sentences, I believe, as opposed to 180 jail sentences. There is only one jail facility in Iqaluit and it was built to hold 44; it has 64 beds, and there are now 85 inmates. If the CSOs are unavailable, inmates will have to go to Ontario, the Northwest Territories, and possibly to Quebec facilities.

The other difficulty for Nunavut is the number of small communities. I'm not sure how many circuit points there are--five, six, or seven--that the court travels to. If individuals are sent to jail from that circuit point they are sent 1,000 to 1,500 kilometres away from home, in some cases. They are cut off from contact with their families and their support.

The native or Inuit communities in the north by and large embrace the restorative justice model. It is difficult to get a CSO, a conditional sentencing order, there. Defence counsel has to present a plan in advance. There has to be a responsible guilty plea. There has to be an agreement on the part of offenders to work with the elders, take appropriate counselling, and exist within the community.

House arrest is enforced, so they don't get to go out on the land with the rest of the community, which is a very important tradition in the north. That is a very painful experience for the individual. In the small communities everybody is aware who is on a CSO. Any breaches come to the attention of the authorities very quickly. The breaches are brought to the attention of the court. If there's not a good reason, the sentence is collapsed, and the community supports that because they see individuals as having been given the opportunity. If they don't want to take it, then they're removed. Predators are not given CSOs.

If an individual is simply bad news in the community, that is generally known to the sentencing court--there aren't any favourable reports--and the person is not available for a CSO order. Those concerns are reflected by the judges I've spoken to in Alberta who are working on reserves. In small communities, CSOs have a place. There is rehabilitation, education, treatment potential and availability, and the community is aware of the individual, so any breaches get reported. And of course from the aboriginal and the Inuit perspective, when the individual is serving their sentence in the community, they're confronted with the shame of their wrongdoing. Through that we get a rehabilitative, a remorseful, a cathartic effect as they reintegrate.

There is concern brought about the Crown being able to choose whether a CSO is available or not, simply by deciding to proceed by indictment, thus taking away the option of a conditional sentence in some cases. The concern is there will be a disproportionate effect on aboriginal people and people in the north. Some persons have mentioned to me that in close cases the inclination on the trial court, on the sentencing judge, will be to sentence down rather than up. If it's a question of whether or not the person ought to go to jail, it being a human system--judges are human, they hear that human story--the inclination may be to sentence down rather than up, and not necessarily make available the treatment that's necessary.

CSOs are seen to be better for educating and certainly much better in terms of rehabilitation purposes. Recidivism rates, it's generally felt, are lower with a CSO than with jail.

There is a serious concern that there has been a lack of consultation by the government with the relevant groups, such as judges, defence counsel, crown counsel, women's groups, aboriginals, and others.

Conditional sentences also have the benefit of avoiding having youthful first-time offenders or first-time offenders go to jail where they can learn a better trade. They can learn how to hot-wire a car, how to properly break into a house, how to cover their tracks. They can learn all of those things in jail. They won't be learning those things if they're at home.

It is my respectful submission to you that appellate courts in this country are doing their jobs. On the opposite side of defence counsel who are requesting a conditional sentence sit crown counsel, and if a mistake is made, crown counsel can recommend an appeal. These matters go up to the appellate courts. This is one area where I disagree with Professor Paciocco. I think appellate courts are doing an excellent job. In the west--and I can speak of Alberta, Saskatchewan, the Northwest Territories, and Nunavut--the appellate courts are not easy on conditional sentences. You have to earn the right. And if they've been given out improperly, the court wastes no time in reversing that sentence and sending the individual to jail. I can speak from personal experience on that.

My submission is that trial judges are exercising their discretion properly. They're doing it effectively. They're considering the myriad of circumstances that they have before them, such as the aggravating, the mitigating circumstances, the impropriety of the individual--should they have known better or not?--and then they're imposing a sentence that is appropriate to the circumstances. I've seen conditions on conditional sentences that limit who can go to the individual's house to visit. I've had people who have been given a conditional sentence who live in an apartment and have called me up to appeal. They would like to do it on straight time because it simply became too difficult. A conditional sentence is a prison of the mind. You know you can't go out of your house. You know you are limited. You know you can only go to work and come home right after; you can't attend birthday parties; you can't go out with your friends. You're going to get checked on. They can come at any time and ask you for a urine sample or what have you, if that's a condition. So they're not easy to obtain, and in my respectful submission, for the people who are serving them, they're not an easy sentence.

Bill C-9 fundamentally will shift the law and it will put more people in jail, which we regard as a regressive step. We've made great progress.

Initially there was difficulty in 1996-97 in sorting out how they should be imposed. With the Supreme Court decision in Proulx, a lot of that confusion was taken away. Four or five years after Proulx, I believe we now have a good sentencing regime in Canada. In the west there are clear appellate cases that set the guidelines.

In our remaining time, I'm going to turn the matter to Mr. Rady, who comes from Ontario and can speak to the Ontario experience.

[The Chair, Conservative, Art Hanger]

Mr. Rady, you have approximately two minutes.

[Andy Rady, Executive, Canadian Council of Criminal Defence Lawyers]

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.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Rady.

Mr. Roberts.

[Dr. Julian Roberts, Assistant Director, Reader in Criminal Justice, Centre for Criminology, Oxford University, As an Individual]

Thank you very much, Mr. Chairman.

I want to point out that although I've just come from the University of Oxford, I'm not some presumptuous British academic coming to give some opinions. I lived in Canada for 35 years. It's a great country and I miss it greatly. I'd like to put that on the record.

I've been following the debate about conditional sentencing for 10 years, since its inception in 1997, and I'm quite sensitive to the question of circumscribing the ambit. In fact, the first paper I wrote in 1997 talked about ways you could reduce the scope of the sanction.

Is it a good idea? I think I'll go straight to the question of ambit and Bill C-9 by saying that it may be a good idea, but I think you want to have a more compelling case before you than just a few cases: “Did you hear about the sentence in Windsor? Did you read about the conditional sentence that was imposed?” I think it would be nice to have a really good research record. You don't have that. Unfortunately, we don't have that. The CCJS presentation from a couple of weeks ago raised more questions than it answered. So before you take the step of curtailing judicial discretion, in quite a radical way I'll argue, I think you might want a better case.

However, if we accept for the moment that it is a good idea to circumscribe the ambit of the conditional sentencing regime, the question then becomes, well, is Bill C-9 the appropriate vehicle? And here I'd argue that no, it's not. It's not going to get you what you want, if you want to circumscribe the ambit of the sanction; it's going to create a lot of problems.

Let me explain. The first point has been made by many witnesses, so I won't say much about it. It really is over-broad. I have the document here from a Mr. MacKay of the Parliamentary information research service. If I'm counting right, there are 162 offences there. That's a lot of offences. If the purpose of the bill is to reassure the public or to ensure that victims don't get demoralized when this sanction is imposed, then you want to focus on those cases and only those cases. If you take a conditional sentence off the table for uttering a fraudulent document, I don't think too many members of the public are going to be picketing Parliament Hill. They're concerned about a much smaller range of offences. Unfortunately, Bill C-9 paints a very broad brush--it's very broad.

The second thing is that it attempts to screen out the most serious cases, and it does so with two very questionable and curious filters, as I would call them. The first is the statutory maximum penalty. The statutory maximum penalty is a very unreliable guide to the true seriousness of an offence, as we've just heard. In the report of the Canadian Sentencing Commission, discussed in this very room twenty years ago, the commission made the point that the maximum penalty structure is thoroughly chaotic and needs overhauling. So to pick out offences on the basis of the statutory maximum penalty is not a good idea.

The second point about the statutory maximum penalty takes me to the issue of proportionality. A lot of people have come here and said we need more proportionality in sentencing. These judges have lost sight of proportionality. That's fine. I'm a big fan of proportionality, and I'm very glad that Parliament codified the principle in 1996. What people seem to forget is that proportionality has two branches. The first branch is how serious the particular crime is. The second branch is the culpability of the offender for the offence. That's not me talking; that's section 718.1 of the Criminal Code. If you identify an offence by the maximum penalty, or even by the name of the offence, you have an idea of the seriousness of the crime but no idea of the culpability of the offender. In fact, you're losing proportionality by that route.

The second filter is the decision by the prosecutor to proceed by way of indictment. That is a very bad way of filtering cases, for two reasons. First of all, the prosecutorial decision to proceed by way of indictment will be based upon the file communicated to the prosecutor by the police. That's evidence that has not been tested in an adversarial proceeding. You're only getting half the battle, as it were. You're getting a version of the facts based upon material that has not been subject to an adversarial proceeding. That's number one.

Number two is there's no comparison with the degree to which a prosecutorial decision is going to be subject to review. In order to have a prosecutor's decision reviewed, the standard is very high. This decision will be made out of the public arena. You will not be able to review it; it will be in the shadows. That's one of the things we've always talked about: bringing justice out of the shadows and into the daylight.

The prosecutorial decision to proceed by way of indictment is based upon one version of events that hasn't been subject, for example, to cross-examination and is not really subject to review in the same way that a court can review. The person best placed to determine the seriousness of an offence and the degree of culpability of the offender is a sentencing judge, and he or she should make that determination.

This doesn't mean you can't give a judge or a court some steer. And that's why I think the presumptive approach that Paciocco and other people have suggested is probably a much better one.

The other problem with Bill C-9 is that it creates a clear anomaly: you take the conditional sentence off the table, but you leave probation on the table. What's a member of the public supposed to think of that? The court can't impose a conditional sentence of imprisonment, with curfews and strict reporting requirements and an expeditious procedure to respond to breach, but it can impose probation. That's a real anomaly that's going to play very poorly in the newspapers.

I fully agree with a previous witness that what courts are going to do, in some cases, is say: “Before Bill C-9 I could impose a conditional sentence of imprisonment. I can't do that now, but I don't want this individual to go to prison, so how about a pretty lengthy probation order? I was thinking of a conditional sentence in the range of six to eight months, prior to Bill C-9. Well, we'll have a long probation term of three years. There's no statutory bar to the imposition of a curfew as a condition of a probation order. Well, I'll put a curfew on the guy and extra reporting requirements.”

So the court will turn the probation order into a de facto conditional sentence order, and the effect of Bill C-9 will be to disturb and distort a perfectly good rehabilitative sanction.

There is a place for both sanctions in the sentencing tools available to a court in Canada. You need both.

My last point is, I think it's important not to intrude into judicial discretion unless and until you really have to. Parliament, of course, took away judicial discretion with respect to the offence of murder, where we have a mandatory penalty. But for lesser offences, to take a sanction off the table and tell the judges of this country that you know better than they do what kind of sentence is appropriate in which particular cases is I think a mistake. It's an expression of non-confidence in the judiciary, and I think probably you should be aware of conveying that message.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Roberts.

From the Canadian Association of Elizabeth Fry Societies, Ms. Pate.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

I'm the national director of the Elizabeth Fry Societies. I'm pleased to be here along with my vice-president Lucy Joncas, who is also chair of our social action committee.

I want to start by apologizing for not being here earlier. We hadn't anticipated that the Minister of Public Safety would table the report of the correctional investigators. I had to attend to some business there, and I hope to be able to speak to a couple of issues that have come up around that particular report today that directly interact and intersect with some of the issues you are concerned with today.

I also want to start by acknowledging the Algonquin people, on whose territory we have the privilege of meeting. Whenever we talk about criminal justice issues, particularly issues that are likely to increase the imprisonment of people, we know that disproportionately they will be aboriginal people, as has again been borne out by the report of the correctional investigator just today.

You have heard from some excellent people who preceded us. I wish to merely summarize, and I apologize that our brief apparently has not been finished being translated. I was out of town, and it was delayed getting to the clerk. My apologies for that. You will have it in both official languages, hopefully within the next couple of days.

In summary, the issues that we see that Bill C-9 raises have already been covered: the fact that it's not the least restrictive measures that should be available, as has been pointed out; that there is a lack of community resources, period; and that to impose this kind of measure will likely only further mean a draw and drain will be placed on those existing community resources, both in terms of trying to provide alternatives, as Julian Roberts has just pointed out, and also in terms of when those individuals are released from prison—the drain on resources to try to reintegrate them after their life in the community has been interrupted.

We also suggest that when it comes to some of the principles of sentencing—denunciation, proportionality, and deterrence—we believe there is a reason that the judge, and in some cases juries, are made the triers of fact. It's because they have an opportunity to hear and balance all of the evidence that is available in a case. We think this discretion, the ability of the courts to hear all of the information, is not something that should be interfered with lightly, and in this case we feel it would not be the most effective way to proceed.

In addition, in terms of deterrence, there is sufficient evidence—most recently, admittedly, looking at the Young Offenders Act—that the Supreme Court of Canada talked about as being purposeful that deterrence was not included in the act. Part of the reason for that is linked to some of what we know and has already been mentioned by some of the members of the defence bar here: that in fact most people don't think of the penalty. Many people don't even know what the penalty is prior to their involvement in an offence. To argue that deterrence is a principle of sentencing that's applicable, that Bill C-9 reinforces.... Already there is some controversy about the application. Clearly Bill C-9 would only exacerbate it.

In terms of rehabilitation, reparation, and restoration, we've already had cases such as the Supreme Court of Canada's decision in the Gladue case, in Proulx, and in others where we've seen again that in fact those principles of sentencing were not put lightly into the Criminal Code, and that we should be looking at utilizing them and not merely abandoning them in favour of something like the suggested repeal of conditional sentences for so many of the offences, as has been already outlined.

One of the things we're very concerned about related to this bill is the human and fiscal costs the bill will create. It's already been acknowledged through the report that has already been alluded to done by Mr. MacKay that this bill could result in another 5,500 people per year being jailed.

Provincial and federal corrections across the country estimate the cost of imprisoning each person at anywhere between $50,000 and $250,000 per year, depending on the level of incarceration, the nature, the placement, how far they are from other communities. We're talking at the very least about a fiscal increase of between $275 million at the most conservative and $1.3 billion as the increased costs of incarceration that this bill could result in, based on the figures produced in Mr. MacKay's report.

In addition, to talk about women in particular, we know that women are the fastest-growing prison population worldwide.

We just heard across the street that more than 80% of Corrections' budget is used to jail people, and anywhere between 10% and 20%, depending on the jurisdiction, is used for community corrections. Clearly that is not a mechanism that assists people to integrate into the community, and it is therefore not a mechanism that increases public safety.

The reason why women are the fastest-growing prison population has nothing to do with any increased risk they pose. Almost everybody will recognize, and all the research shows, that there isn't a crime wave of women internationally or in Canada, yet they are the fastest-growing prison population.

The correctional investigator's report just released today shows that over the past several years there's been a 75% increase in the number of aboriginal women jailed. Canada is now jailing aboriginal people at the rate of 1,024 people per 100,000, which is between seven and eight times the rate at which we jail other people in the country. Women are disproportionately being jailed as well. The estimate is that in another five to ten years, about 25% of all jail populations will be aboriginal. We're well beyond that already when we talk about aboriginal women in the federal system; they already comprise one-third of the jail population.

So we're talking about a mechanism that will not only deplete resources in the correction system itself, but will also lead to a further depletion of resources in the community. Contrary to Minister Day's assertion today that there is no empirical evidence that the system already discriminates against aboriginal peoples--and I would say women as well--there is abundant evidence when you look at those sorts of figures.

It seems that the only evidence being put forth in favour of this bill is based on American evidence. Everywhere I could find...every academic, every person working in the system who I could speak to in the United States, has reaffirmed that although the U.S. jails from six to seven or more times the rate we jail in Canada, their crime rate has not been significantly reduced, and they still have five times the crime rate we have in Canada.

We're concerned that media accounts of exceptional cases seem to have driven this initiative, yet we know that those media accounts rarely describe the cases involved adequately. We also know from the research of Mr. Roberts, Tony Doob, Cheryl Webster, and others, that when you provide Canadians--the average person in the community, the average person in the street--with more information about the particular cases, very few of them differ in their decision-making from the judges. That's the case for some of the more serious offences and for some of the less serious offences.

We encourage you to not pass this, in this form or in an amended form. It's very clear that what's needed is increased investment of resources in the community to help prevent individuals from being there and to assist people to integrate once they're released from prison.

I'd like to call on Lucie to add a few comments.

[The Chair, Conservative, Art Hanger]

Make it very quick, please.

[Lucie Joncas, Vice-President, Board of Directors, Canadian Association of Elizabeth Fry Societies]

I'll take one minute of your time to address you in French.

First thing , I wish to underscore the importance of maintaining the court's authority. A democracy must respect the separation of the legislative, executive and judiciary branches. Bills such as C-9, C-10 and other pieces of legislation to be tabled in upcoming weeks distort judge's role by significantly restricting his discretionary power.

Canada is considered an important ally in the reconstruction and development of several countries' legal systems, countries which acknowledge and argue that our justice system is one of the best in the world. I would argue that none of the data calls for the reform being proposed. According to government statistics, 90% of cases resolved in conditional sentences of imprisonment follow a guilty plea.

The abolition of this measure will lead to a backlog in the legal system, and I would ask that you take this into account. I have been practising law for the last 14 years and can say that we agree on most of the cases, but we must have the means to carry out our work well.

Thank you.