Justice Committee on Oct. 17th, 2006

[Bob Watts]

That's true. And what this bill is talking about is taking an important tool out of the hands of judges and, as one of our colleagues has said, putting that tool into the hands of crown attorneys where a judge is trying to weigh a variety of evidence and trying to take the whole situation into account, including community, in our case; and often consulting with the community in terms of what's best for everyone, offender, perhaps victim, also community, to try to balance all those.

In the restorative justice programs in some of our communities, in particular in western Canada, a lot of non-native people who have offended aboriginal people are coming before our justice circles asking for forgiveness, asking to be sentenced through our sentencing circles. A lot are people who abused our people in residential schools, and we've already heard a bit about the intergenerational effect of residential schools.

If we're not going to allow judges to have tools to help deal with some of those situations, then that intergenerational effect is going be perpetuated to the next generation. It has to stop somewhere, and prison isn't the answer.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown.

I don't know if Mr. Battista would like to comment on Mr. Brown's question.

[Giuseppe Battista]

Just to state that when we look at an offence in and of itself, no one supports the commission of offences. And when lawyers make representations to judges, they're not making representations on the appropriateness of having committed an offence. The issue is how to deal with the person.

Before sentences in the community were put into effect for the types of offences you mentioned, Mr. Brown, judges sometimes, when it was appropriate, ordered suspended sentences. Today, those same judges have another tool. In the past they could control that person for three years on probation. Today, they can control that person for five years, two years sentence in the community and three years probation to follow that. So it's a better tool.

We have more today than we had in the past for those very same offences in those cases where jail was wrong. No offence in and of itself can ever.... When we look at the offence, we can all look at it and say it's absolutely abominable and no one should find it's appropriate. That's not the issue.

What we're dealing with is someone who's done it and we can't fix that. What we have to do now is make sure they don't do it again, make sure society is protected, and make this person a useful, productive individual. What's the best way to do that?

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Battista.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

First of all, for the record, my party certainly wants and will encourage whatever government is in place to continue with the aboriginal justice program. This is an essential program. If anything, it's underfunded and needs more funding and a wider distribution. It does an amazing, very necessary job with the remarkable resources and overstressed and hardworking people in the system.

I'd like to talk to Mr. Rudin. I visited your centre in Toronto a couple of years ago. You've got three Gladue courts now operating in Toronto? I just want a brief update on the number of Gladue courts operating throughout Canada, if that's increased at all. You're also doing the Gladue reports out of Toronto for some of the other areas--you said southwestern Ontario.

Some people around this table don't know what a Gladue report is, so perhaps just for the record and for the education of some people....

[Jonathan Rudin]

Thank you. I'd be happy to answer that.

There are three Gladue courts in Toronto. They are courts that are specifically designed to work with aboriginal people. They deal specifically with bail and sentencing. They are the only three Gladue courts in Canada, so there are no other courts like that. There are Cree courts and some travelling courts, but these are the only Gladue courts.

We produce what we call Gladue reports because they're done in light of the Supreme Court of Canada's decision in the Gladu case. It instructs judges to look for alternative sentences, and in order to do that judges need information about the clients. They need to know some of the background and systemic factors that have led the person to commit crime, and they also need to have some very specific ideas about what options might be available for sentencing.

Our Gladue case workers interview the clients, family members, and counsellors. It's a very wide process, and it often takes 30 to 40 hours to do a Gladue report. They run 10 to 20 pages. They consist of the person's background, including an examination of systemic factors. For example, we will provide background on residential schools generally, or on specific residential schools that a client may have been to, intergenerational trauma, and things that judges aren't necessarily aware of. Once we've done that, the report goes into very specific detail about the client.

We very commonly have clients who have substance abuse issues. We explain why those arose. Given the client's criminal record, the judge is often not prepared to give a probation sentence. So while the client is in custody, or if they're out on bail, we have them apply to and be accepted into a treatment centre. We're able to suggest to the judge that rather than sentence this person to jail, we have an option for consideration. Tomorrow this person will go on a bus to a treatment centre where he has been accepted--this is the acceptance date.

So we're able to put those sorts of things together. That's what a Gladue report looks like.

[Sue Barnes, Liberal, London West, ON]

Because of the interaction and the intensity of these reports, you tend to know the people who work through the system quite well, compared to a duty counsel going through a courtroom in another setting.

[Jonathan Rudin]

Yes. By the end of the process we know the clients quite well.

[Sue Barnes, Liberal, London West, ON]

Given that, even though I'm not going to hold you to the absolute accuracy of your answer, I'm aware that some of your clients have drug addictions that lead to their criminal activity. But we have different levels of drug addictions, and some of these hit the organized crime level where three or more persons are involved. Generally speaking, is that the level of addiction of the person with whom you're involved?

[Jonathan Rudin]

No. The drug traffickers we deal with are crack addicts who sell bits of crack in order to get a bit of crack to use. So they're essentially crack-addicted clients, and the only way they can make a living is by selling bits of crack.They're not involved in any large conspiracy. If there is one they certainly don't know it. They're just sitting on the street.

[Sue Barnes, Liberal, London West, ON]

So you wouldn't have any problem if someone who was involved in organized crime activity in drugs was not available for conditional sentencing. You would have a problem at the lower...well, other people might not call it lower, but there could be serious substances, but not in the sense of being involved in organized crime activity.

[Jonathan Rudin]

Yes. Drug trafficking is another good example of an offence that for many people conjures up images of Al Pacino in Scarface or something--someone living large and doing all those things. The reality is that our clients involved in drug trafficking do it to survive. It's not a good thing, we don't like it and we'd rather they didn't, but that's what they do. They're caught up in that sort of web, but they're not at all like the large gangs that deal drugs.

[Sue Barnes, Liberal, London West, ON]

Okay. Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

Ms. Barnes obviously had some knowledge of the Gladue court. I'm not too familiar with it, apart from the information before me stating that the courts were set up, if I believe correctly, to deal with the over-representation of aboriginal people in our jails.

[Jonathan Rudin]

The courts were established following the Gladue decision of 1999. There was a concern by judges that even though the court had instructed them to do certain things as a result of Gladue, they didn't have the information or expertise to be able to do that. The idea of the Gladue court came from judges who decided that maybe one way to do that was to locate, at least in Toronto, the expertise in one or two courts where they would best be able to follow the dictates of the Supreme Court.

[The Chair, Conservative, Art Hanger]

There's a question that begs to be asked. The courts were established to deal with this over-representation of aboriginal people in the jail system, yet we're still experiencing the same thing.

[Jonathan Rudin]

That's certainly the case.

[The Chair, Conservative, Art Hanger]

I want the information before the committee. This is pertinent to what we're talking about. I wouldn't mind comments from the three different representatives here in that regard.

Go ahead, Mr. Rudin.

[Jonathan Rudin]

As Ms. Barnes mentioned, the reality is that although the Gladue decision came from the Supreme Court of Canada, it is not being acted upon across the country. We know that. I get calls every day from lawyers who have never heard of the decision, and I get calls from clients who say they've heard of this decision but no one seems to want to hear about it. We hear about judges who don't want to hear about Gladue in their courts. The reality is that things are not changing.

We've discovered with the Gladue court that when judges are given the resources they need, they have the opportunity to come up with creative sanctions. It doesn't mean that people never go to jail. In Gladue court people do go to jail on occasion, so it's not that the judges feel it's their job to keep aboriginal people out of jail, but it's to look at all the available options.

The difficulty is that the resources have not been put into the criminal justice system to give judges the information they need to come up with the responses they need, nor have the resources been put into healing centres and addiction programs so there are options for people. So judges often feel hamstrung.

[The Chair, Conservative, Art Hanger]

Thank you.

[Bob Watts]

Thank you, Mr. Chair.

There are parts of the country that may skew some of our statistics. We note in our presentation that numbers reach critical levels in the prairie region, where aboriginal people make up more than 60% of the inmate population in some penitentiaries. There are parts of the country where there are no Gladue courts. Perhaps the systems aren't in place like we're trying to do in Toronto. Part of it's learning, and part of it is applying what has been learned to other parts of the country. Some of that isn't happening.

[The Chair, Conservative, Art Hanger]

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I am impressed by the excellence of these presentations and by all the information they provide regarding the use of conditional sentences.

I have practised criminal law since 1966, both for the Crown and for defence. I have been Minister of Justice and Minister of Public Security in Quebec. Therefore, I am familiar with these matters. I also have some very specific questions for you.

Mr. Battista, you mentioned several times that you have reviewed a number of studies on crime. You obtained these studies from the ones that had been submitted to the Department of Justice. Could you tell us about them?

[Giuseppe Battista]

Yes.

The legislative summary describes various aspects of conditional sentencing. There are references to studies of such sentences, as well as statistics about their implementation at the provincial level. These are the studies I was referring to. The Department of Justice is aware of them.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

The committee should also be aware of them, I gather.

Let me say right away that this is not my committee. I am here this afternoon by accident.

Did these studies show you an increase or a decrease in crime since conditional sentencing was introduced?