We have five specific but linked concerns with the proposed bill, and we will address each one in turn.
First, the bill casts too wide a net. If passed, Bill C-9 would include among offences ineligible for conditional sentences robbery and break and enter into a dwelling. While most Canadians might think that these offences represent particularly heinous crimes, as members of this committee know, that is not always the case.
Take the offence of robbery. What is robbery? It is theft with violence. In some cases, the violence can be extreme and would require the incarceration of the offender for public safety. In other cases, a theft is turned into a robbery because the offender pushes or threatens to push the victim. Most of us would agree that this latter situation is by no means comparable to the first example, yet both are robberies.
The same holds true with respect to break and enter charges. While we cannot discount the trauma experienced by people who have had their homes broken into, there is a difference between a gang carrying out a home invasion and someone with an addiction attracted to an open window. We have clients who have been charged with break and enter who were found asleep in front of the television in the house they broke into. Did they commit a crime? Yes. Should their action disentitle them to consideration of a conditional sentence? No.
The second concern is about an increase in prosecutorial discretion. Many of the offences listed in Bill C-9 are hybrid offences. If prosecuted summarily, a conditional sentence is possible. If prosecuted by indictment, it is not.
Sentencing decisions should be made by the judge, not by the crown attorney. There is nothing wrong with the crown proceeding by indictment and strenuously arguing for a jail sentence, but it does not seem right to us to allow the crown to unilaterally remove one of the possible sentences available to the sentencing judge at the outset of the process.
Third, we are concerned about forcing judges to choose between probation and jail. Bill C-9 will require a judge who does not think jail is an option to choose a sanction that may be less able to accomplish the sentencing goal than a conditional sentence. We fail to see the logic in this process. How is giving a judge a choice between two sanctions that he or she would rather not choose better than allowing the judge the full panoply of sentencing options?
Fourth is a concern about increasing the problem of aboriginal overrepresentation. It is worth remembering the words of the Supreme Court of Canada in R. v. Gladue. With respect to aboriginal over-representation, the court said:
These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.
The court went on to say:
Sentencing judges are among those decision-makers who have the power to influence the treatment of aboriginal offenders in the justice system. They determine most directly whether an aboriginal offender will go to jail, or whether other sentencing options may be employed which will play perhaps a stronger role in restoring a sense of balance to the offender, victim, and community, and in preventing future crime.
Bill C-9 will impede the ability of sentencing judges to follow the dictates of the Supreme Court of Canada. It will make the problem of aboriginal over-representation worse.
We have found that judges can design quite creative and helpful conditional sentences. Sentences can be fashioned to allow the offender to take responsibility for his or her actions, and also take concrete steps to address why they are involved with the criminal justice system. In many cases, the offenders are required to attend or complete treatment programs, often in conjunction with other conditions.
Let's look again at aboriginal over-representation, but from a different perspective. Jail sentences are often advocated because they act as a general or specific deterrent. If incarceration really worked as a general deterrent, we would expect that rates of aboriginal representation in prison would drop. After all, what aboriginal person in Canada does not know that if you break the law, you stand a good chance of going to jail?
If jail worked as a specific deterrent, we would not see aboriginal people coming before the courts with criminal records that stretch over three or four pages and include multiple periods of incarceration. But that is what we see, and we see it every day.
As this committee has heard, the average jail sentence of an offender serving time in a provincial institution is between two and three months. No positive change will come over a person who spends 60 to 90 days in custody. No programs will be made available to the person; no counselling will take place; nothing positive will happen. For our clients, frequent periods of jail lead simply to the institutionalization of the offender. Conditional sentences can offer hope for change for the aboriginal offender; incarceration offers just more of the same, more of the same that does not work.
Our fifth concern is that removing conditional sentences would not make communities safer. Let's talk about victims. In addition to being over-represented in prisons, aboriginal people are also over-represented as victims of crime. Aboriginal people and aboriginal communities are very aware of the need for initiatives that will lead to safer communities. It is for this reason that aboriginal communities are at the forefront of restorative justice programs.
Restorative justice programs allow for individuals to break the cycle of jail and the street by having them take responsibility for their actions and for their healing. We have seen what incredible changes aboriginal justice programs can have with individuals with long criminal histories, including many spells in jail. While a conditional sentence is not a restorative justice sentence, it is often an appropriate sentence for an individual who requires a greater degree of supervision. Taking away this option will not lead to safer communities; it will mean communities--aboriginal and non-aboriginal--will be more at risk form offenders who have simply done their time and emerged, at best, no worse than when they went in, but certainly no better.