Justice Committee on Oct. 17th, 2006

[Bob Watts]

I don't think there's any one easy answer. Early on in our submission, we talked about systemic discrimination and we identified what the Manitoba justice inquiry said about systemic discrimination. When we met with Minister Day, the national chief was there and he asked Minister Day for support in terms of talking with his cabinet colleagues and dealing with the issue of first nation aboriginal poverty. Those are the underlying issues in terms of whether we're talking about a justice system or a legal system or healing or healthy communities.

Minister Day said he doesn't think too many things happen that aren't planned, and he was talking in particular about poverty and wealth. He said you can win a lottery, but that's kind of accidental and you can become really wealthy. Or a hurricane could come through and rip up a small community or a trailer park, but that's accidental too. That's extreme in terms of wealth and poverty that happen by accident, but he said most of it's planned. Our question is, where's the plan? Is our poverty a plan? Our poverty is part of what underpins what we're talking about in terms of the negative effects of Bill C-9.

The honourable member talked about maybe some sort of a mix in terms of a conditional sentence and a mandatory minimum. Maybe that's the way. I don't know. But we've also said we have to do the homework. We've tried to find the statistics. We can find tons of anecdotal evidence from the good to the bad to the ugly, but I think we're working in a vacuum on some of this. We don't have the good evidence that says, given this evidence, this is what we need to do in terms of legislation. Until we have that, I think we may be trying to appeal to public opinion but we're fighting with one hand tied behind our backs.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Watts.

Mr. Rudin.

[Jonathan Rudin]

Thank you.

First, I should make it clear that we have a victims' rights component to our organization, so victims' issues are very significant to us as well.

I don't sympathize with the dilemma that you have in some ways as Parliamentarians. I certainly know that many people have those concerns that you have with the justice system. But I found it interesting that when you spoke, you said there's room for both conditional sentences and imprisonment. That's what we have now. That's why we don't understand Bill C-9.

The concern is that we have no confidence, no belief that this will make any community any safer. May it make some of your constituents feel they're safer? It may do that. But in order to do that, you are sending individuals to jail who shouldn't be going to jail. And we know that, disproportionately, those individuals will be aboriginal.

So if Parliament would like to respond to real concerns about public safety by enacting a bill that will not do anything to actually address those concerns, but will send aboriginal people to jail in even greater numbers while not resulting in any increase in public safety, then you should do that. But you should be aware of what you're doing. You are simply perpetuating what has been done for years.

So if the concern is how we remedy the problems, we look for real answers. In our opinion, this is unfortunately not going to do that.

[The Chair, Conservative, Art Hanger]

Mr. Rudin, regarding the Gladue courts, why would the other courts refuse to embrace a Supreme Court ruling—and I assume more than one particular ruling?

[Jonathan Rudin]

I can't speculate on that. I know that the Ontario Court of Appeals has just issued a decision in the Kakekagamick case, in which they asked that question.

In my more pessimistic moments—

[The Chair, Conservative, Art Hanger]

You mean your more realistic ones?

[Jonathan Rudin]

We're realistic with what we do in Toronto. But in my more pessimistic moments, I realize the justice system sometimes works very quickly. As a judge once described it to me, it works sometimes like a sausage factory. People don't have time to talk and discuss and think about what needs to be done. Aboriginal people make up an increasing number of sausages in that factory. Often, as the aboriginal justice inquiry noted, they do not receive the best representation. They don't often have good people to advocate for them, so they go through very quickly. Sometimes rocking the boat is difficult.

[The Chair, Conservative, Art Hanger]

Yes, indeed.

Section 718.2(e)--where is the override? Does that not override conditional sentencing?

[Jonathan Rudin]

There is a series of things a judge could take into account in section 718.2(e). It is one of the elements, but certainly, as the Supreme Court and several courts of appeal have said, it's not a get-out-of-jail-free card for aboriginal people. Where offences are violent, the expectation often is that the sentence for an aboriginal offender will be the same as for a non-aboriginal offender.

The court of appeal said in Kakekagamick that the result may be the same. It's the process by which you get to the result that may be different. That's what section 718.2(e) does. It doesn't mandate a different result; it mandates a different approach to get to that result.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

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

This is another interesting panel. I know that each of you comes from communities and constituencies that are fairly extensive, representing a fairly large catchment area, and the AFN is virtually national in spanning the country. We have the policy wonks fine-tuning the correction system and the sentencing regime, and we have the lawyers and the judicial system working with it. As it passes through Parliament, Mr. Thompson has articulated what he says is a sense among Canadians out there that we should be taking certain steps to “crack down on crime”.

I'm asking you a political question rather than a policy-wonk question. From the constituencies you come from—and I don't know where each of you is based—would you acknowledge that there is a demand from Canadians that we take a step like this? If you're hearing it, how the heck are we supposed to respond in Parliament? If Canadians want us to take steps, is this one of the right steps? Can we move back? Can we step sideways? Can we improve our footing? Maybe one person could answer from each group: the AFN, Toronto, and the Quebec group.

[Bob Watts]

Not being a politician, I would ask if the amber alerts get rid of all the abductions of kids. A couple of years ago, every time we turned on CNN it was all about child abductions. Those abductions are still going on at probably the same rate they were before, but other things have overtaken them in the news. Sometimes this happens in politics too. Some things are cyclical. I think the member is right: people want justice, not just a legal system. But we don't all have the same definition of it. That's part of the difficulty: we have to engage each other on what it means.

We wouldn't be here if we didn't care about the legal system, justice, victims, and offenders. That's why we're here. We're not here to trash Parliament or any particular party. We're here to engage folks. We've talked about the need for some of these studies to be done, because we want to see justice done in our communities. I think everybody does. I don't think it's the political imperative of any particular people, party, or area of the country. So I don't know that there's an easy answer. People have to know that you're doing something as parliamentarians. We're saying we should make sure to do the right thing.

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

Mr. Rudin.

[Jonathan Rudin]

Certainly the constituency that we represent is not clamouring for Bill C-9 to be passed. They're not clamouring for more opportunities to put aboriginal people in jail. What they're looking for are facilities where people who have been damaged can be healed. What they're looking for are safer communities.

You mentioned the issue about jail and people wanting to be safe. The difficulty is that jail doesn't make people safe. There's a recent study by the Canadian Centre for Justice Statistics that talks about aboriginal people being much more likely to go back to jail after they've been in jail. They have a higher recidivism rate than non-aboriginal people. What that says is that this option isn't working. It's not making the community safer, because the person comes out and reoffends. So unless we can find real ways to break that cycle, people won't feel safe. The way to break that cycle is not to send people back to a place that doesn't work.

It has always struck me as odd--though I can't expect people to do things with it--but given the high rate of recidivism we have.... If I started a program at Aboriginal Legal Services in which I could guarantee that 75% or 80% of the people who went into it would then get out and reoffend very quickly, I wouldn't be funded for very long. And if I could say that on top of this, if they come in on a minor offence, later they will commit more serious offences, my funding would be cut off right away. Yet that's what happens in the prison system.

I'm not saying that we should get rid of prisons altogether, but we have to look at what the consequences are when we simply respond to legitimate public concerns by saying we're going to look like we're doing something and we're going to look like we're getting tough.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Rudin.

Mr. Battista.

[Giuseppe Battista]

Yes, I'll try to be brief.

It's difficult to talk about the constituents. I'm representing the Quebec Bar here today. We have two honourable members who are members of the bar, and they are probably on opposing sides of the issue. So it's difficult to say that we're speaking from one simple point of view.

I am a member of a committee that recruits lawyers who are university professors, crown prosecutors, defence lawyers, and who practise in a wide range of the province. There are people from Montreal, Quebec City, and the province. The committee is balanced in that way. So the Bar of Quebec obviously takes into account the views held by those who are practitioners in the field.

I would dare say, very respectfully, that you're parliamentarians and you obviously have a duty to the people who elect you, and you have a duty to the people of Canada because you are representatives of the people of Canada. But you are also leaders. There may be voices that call to be tough on crime, but we also hear many times that prisons are the universities of crime. That is also a reality.

When this legislation was introduced, Canada was among the countries that imprisoned people more than anyone else. Are we less safe today if we're imprisoning less? Have we done anything wrong from that perspective? Was it a wrong objective to not want to be one of the societies that imprisoned the most? I think those are some of the issues that need to be addressed.

I think the point is well taken. If someone was asking for government subsidies and they did not produce results in relation to what they were asking for, it would be legitimate for members of this Parliament to say no and for them to criticize and hold the government accountable for funding that.

What we're saying is that we haven't seen the studies to support the costs. There are no benefits that are obvious or available for the costs that are going to be incurred by the amendment to this legislation.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Battista.

It's an interesting question you raise. I've heard that issue about the effectiveness of programs more now that we're in government than I have in the last 13 years.

Mr. Preston, you have a question.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

No, I don't--

[The Chair, Conservative, Art Hanger]

Make one up.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

--but I'll make one up.

I'll follow up on what was last said. You're asking us not to go down one road and to stick with a road, as my colleague has said, that many of our constituents say isn't working. So if you're asking us to stick with a policy that isn't working, in lieu of one that might, I'm sorry, but I have to err on the side of the one that might.

[Jonathan Rudin]

I think, though, the way you phrased that is a bit misleading. We don't know this isn't working.

You made three statements. One was that the public is not pleased, and I'll accept that.

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

You'll accept that? Okay.

[Jonathan Rudin]

You're the politicians; you would know.

But then you asked, why should we continue down a road that isn't working? But we don't know that. We know that the public is not happy, but—

[Joe Preston, Conservative, Elgin—Middlesex—London, ON]

We don't need to know if the public thinks it isn't. The point here is that I'm taking the value judgment of the public.

I understand what the other side are trying to say with their hounding, but what I'm saying is that if the public is telling us one thing, then I have to listen to that too.

[Jonathan Rudin]

I would never tell you how to do your job—and I would never want to do your job. It's an incredibly difficult one, and I have great respect for all of you who do that work.

This gets to one of Bob's points, I guess, that we actually have very little information about whether things are working or not. So to assume that things aren't working because people say they aren't working seems to be a strange way to do business or set public policy—and that's what we're doing here.

Our sense is that Bill C-9 is a response to a perceptual issue, but not an actual or real concern. So I think it would be dangerous to act simply on public perception when we don't actually know if that perception is correct.