Justice Committee on Oct. 17th, 2006

[The Chair, Conservative, Art Hanger]

I would like to call the Standing Committee on Justice and Human Rights to order.

We will continue our debate on Bill C-9, an act to amend the Criminal Code on conditional sentence of imprisonment.

I would ask the media and the camera to leave. Thank you.

We have before us three different groups today: Barreau du Québec, Aboriginal Legal Services of Toronto, and the Assembly of First Nations.

I would like to proceed with the presentations in the order in which they appear on our agenda. Who will be speaking? Will it be Giuseppe Battista? I understand that Madame Moffet will introduce Mr. Battista. Please go ahead.

[Claire Moffet, Lawyer, Research and Legislation Service, Barreau du Québec]

We represent the Barreau du Québec, a professional body responsible for governing lawyers and ensuring public protection.

The Barreau du Québec has several standing committees, including one on criminal law. It is an advisory committee composed of over 20 members including defence lawyers, crown prosecutors and some university professors.

Mr. Battista has been a member of the Barreau du Québec since 1986. He has been on the criminal law committee for over 10 years. He practises mainly in the field of criminal law and, on occasion, disciplinary law. Mr. Battista is the author of several legal articles and has lectured in his field.

I'll now turn the floor over to Mr. Battista.

[Giuseppe Battista, Member of the Committee on Criminal Law, Barreau du Québec]

Thank you.

It is an honour for me to have this opportunity to present the Barreau du Québec's views before this committee. We of course hope to be able to contribute to your work.

The Barreau du Québec holds the following views on conditional sentences: the Barreau du Québec believes that conditional sentences, as introduced in the Criminal Code in 1996, are an important additional instrument made available to the Canadian criminal law system. It meets the objectives of sentencing and the tailoring of sanctions, without endangering public safety.

We believe that the proposed amendment would effectively made conditional sentences unavailable in cases punishable by terms of less than 10 years of imprisonment, and could consequently mean the setting aside of this precious tool.

By eliminating all offences punishable by terms of less than 10 years, could this sanction conceivably serve as an alternative to jail? Because that is the question.

We wonder how useful it would be to have a sanction that applied in cases where judges determine that a sentence of two years or less is appropriate. Will it only apply when offences are punishable by a maximum term of imprisonment of 5 years, 2 years, 18 months or 6 months? As regards of imprisonment, the Canadian tradition—according to the law, and case law—has always held that jail terms were to be used as a last resort when sentencing an offender.

Terms of imprisonment are imposed sparingly and carefully. If the maximum sentence provided is five years and we want to maintain this provision, will it apply? If a judge finds that an offence punishable by a maximum term of five years warrants a jail term, there may be issues as to the type of individual who finds themselves before the court. Some may wonder whether a conditional sentence will be imposed. We believe this limitation could have significant repercussions.

Conditional sentences are not automatically granted at this point. There are criteria for the granting of such a sentence: no minimum; less than two years; no danger to public safety; and compliance with the objectives.

The objectives are clearly defined by you, the legislators. Sentencing must denounce behaviour, and deter the offender and others. So, the idea of sending a message to society is a factor which must be borne in mind. Isolating an offender, if need be, is already a criterion under the law.

In my humble opinion, and in the opinion of members of the committee, conditional sentences are an important instrument of social rehabilitation. Obviously, we need to ensure redress for damages and we need to educate the offender. At this point, judges need to keep these factors in mind, and in our opinion, they do.

The criticism which has arisen, and which we read about in the consultation document, has to do mainly with one issue, the fact that this provision could be applied in serious cases or cases involving violence. In our opinion, these criticisms relate to one factor only, which judges need to bear in mind and which must be considered as required under the law and case law.

When sentences are imposed, a number of factors related to the granting of a conditional sentence must be assessed, as I mentioned earlier on, in addition to all the sentencing factors. Objective and subjective factors must be considered, as well as aggravating and mitigating ones.

It is conceivable that serious violent crimes, or crimes leading to serious outcomes may include subjective and objective factors which call for detailed consideration at the time of sentencing. It may be that positive factors far outweigh any negative factor in the case, despite the offender's guilt. Conditional sentences allow the legal system to deal with these cases humanely, and adequately. They allow judges to impose sanctions which serve as denunciation, and yet reflect the need and desire to rehabilitate offenders.

The Barreau du Québec favours an approach which provide for more administrative and monitoring support for this type of sanction, rather than limitation of its application. The Barreau believes that a cost-benefit analysis based on available information would be helpful. Indeed, we also have available information on the application of this type of sentence, but studies still need to be done on a number of aspects of its application.

Based on the information we have, we see no rationale behind any increase in costs. In our humble opinion, the proposed provision or amendment would certainly increase the costs of running jails. More people would obviously be sent yet there would be no corresponding benefits involved. Costs would definitely increase, but there is no guarantee that we would benefit from a decreased crime rate, because since conditional sentences have been available, nothing has indicated that there has been an increase in crime, a decrease in public safety or a decrease in the risk of recidivism. Once again, that is an area that has not been studied.

Finally, this amendment would reduce judicial leeway in sentencing. We believe that goes to the heart of an independent judiciary. We are of the view that it is important for judges to have more latitude in sentencing.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Battista.

May I ask for a point of clarification? In your presentation you mentioned that the studies don't show an increase in crime. Which studies are you referring to?

[Giuseppe Battista]

We can refer to the ones that were submitted to the justice ministry. In particular, I'm referring to documents we were able to access, the legislative résumé, where studies are considered in terms of the application of the sanction, where it's been applied in different provinces, the increase in its application, and the decrease in the number of individuals sent to prison. There is no correlation anywhere between an increase in the imposition of sentences in the community and an increase in the crime rate. Nothing indicates that people who are given those sanctions reoffend more often than others.

Our point is that we know for certain that we will be increasing the costs, but we have no certainty whatsoever of any benefit to society.

[The Chair, Conservative, Art Hanger]

Thank you.

From the Aboriginal Legal Services of Toronto, we have Mr. Rudin and Ms. Roman.

Who will be starting the presentation? Ms. Roman, please go ahead.

[Marisha Roman, Vice-President, Board of Directors, Aboriginal Legal Services of Toronto]

Thank you.

On behalf of Aboriginal Legal Services of Toronto, we appreciate the opportunity to present our position on Bill C-9 to the Standing Committee on Justice and Human Rights.

ALST has appeared before the Supreme Court of Canada on a number of occasions to address issues surrounding the sentencing of aboriginal people. We are also very active on the ground in justice issues. In 1999 we developed the community council, the first urban aboriginal and restorative justice program in Canada. We were also involved in the development of the Gladue Aboriginal Persons Courts in Toronto. Our Gladue caseworkers provide detailed Gladue reports to judges in Toronto, Hamilton, Brantford, and elsewhere in southern Ontario.

Our work has resulted in the imposition of many conditional sentences in circumstances where a jail sentence would otherwise have been a certainty.

We wish to make it clear at the outset that in our opinion, Bill C-9 is a retrograde move. It will not only worsen the already significant aboriginal over-representation in Canadian prisons; it will also result in less safe communities.

To put this issue in perspective, it is important to keep in mind a few statistics. The issue of aboriginal over-representation in prison was one of the motivating factors behind Parliament’s sentencing reforms in Bill C-41 and specifically in the introduction of paragraph 718.2(e).

Yet despite all the concerns expressed over aboriginal over-representation, the situation continues to get worse. From 1997 to 2001, the percentage of aboriginal people in jails in Canada rose from 15% to 20%. By the end of 2003-04, one in five men admitted to custody were aboriginal, while almost one in three women were aboriginal.

[Jonathan Rudin, Program Director, Aboriginal Legal Services of Toronto]

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.

[Marisha Roman]

When important decisions are made in the aboriginal community, we are often reminded by the elders that we must think seven generations ahead. As Oren Lyons, Faithkeeper of the Onondaga Nation, has said:

In our ways of life, in our government, with every decision we make, we always keep in mind the seventh generation to come. It's our job to see that the people coming ahead, the generations still unborn, have a world no worse than ours - hopefully better. When we walk on Mother Earth we always plant our feet carefully because we know the faces of our future generations are looking up at us from beneath the ground. We never forget them.

We realize that it is often difficult for politicians, particularly in a minority Parliament, to think 10 or 15 years down the line, never mind seven generations. But the sad reality is that the tragedy of aboriginal over-incarceration in this country can at least be partially understood by the fact that decision-makers have often not looked at all on the impact of their decisions on aboriginal communities. It is because we so often do not look forward and contemplate the outcomes of our decisions that we leap to hasty conclusions and quick fixes. Even if we cannot solve a problem, we want to look like we are solving a problem.

In our opinion, Bill C-9 is an example of a hasty, ill-advised response to what is perceived to be public unease with the operation of the criminal justice system. It is a response that will have a disproportionate impact on aboriginal offenders and will make the already growing problem of aboriginal over-incarceration worse; and it will do so with no corresponding benefits in terms of increased public safety.

We urge this committee to carefully review this bill and to recommend against its adoption. Conditional sentences can play an important role in addressing the root causes of offending behaviour. They are not a panacea, but they are a very useful sentencing option for judges. Removing this option in a significant number of cases is a serious step backwards.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you very much, Ms. Roman.

Next we have, from the Assembly of First Nations, Mr. Richard Jock and Mr. Bob Watts.

Mr. Watts, please go ahead.

[Bob Watts, Chief of Staff, Office of the National Chief, Assembly of First Nations]

Thank you, Mr. Chair.

Honourable members, on Richard's behalf and my own, I want to say we're pleased to be here today to present before you. I want to offer greetings to all of you on behalf of our national chief Phil Fontaine and the executive of the Assembly of First Nations.

As committee members know, we've tabled a document entitled “First Nation Perspectives on Bill C-9 (Conditional Sentencing)”, so we're not going to go into great detail. You have that document, and we are going to give some highlights of it.

The over-representation of first nations people in the criminal justice system has reached crisis proportions. The numbers confirm this critical situation. While aboriginal adults represent 2.7% of the Canadian adult population, they accounted for 11% of admissions to federal penitentiaries in 1991-1992 and 18% in 2002-2003; 29.5% of all incarcerated women and 18.2% of all incarcerated men in Canada are aboriginal. While the federally incarcerated population in Canada declined by 12.5% from 1996 to 2004, the number of first nations people in federal institutions has increased by 21.7% during the same period of time. Even more alarming, the number of incarcerated first nations women increased by 74.2% over the same period of time.

Just yesterday a correctional investigator, Howard Sapers, the Government of Canada's ombudsman, said that the federal prison system has practices that discriminate against aboriginal offenders. He found that the Correctional Service of Canada routinely classifies first nation inmates as higher security risks than non-native inmates, that aboriginal offenders are released later in their sentences than other inmates, and that they are more likely to have their conditional release revoked for technical reasons than other offenders. We are concerned that Bill C-9 will only contribute to these problems. We have identified in our written submission to this committee exactly why.

We'd like to focus on a few areas we believe require specific attention. I am going to go over some of them in general detail, and Richard will go into more specific recommendations.

In terms of solutions, there are four areas we believe require attention.

First of all, there's the issue of poverty. The socio-economic gap between first nations and other Canadians has led to the over-representation of first nations in the criminal justice system and must be addressed if we are to make meaningful progress in reducing the over-representation of first nations people in the criminal justice system in Canada.

I want to read into the record a quote from the Manitoba aboriginal justice inquiry with respect to this. The Manitoba aboriginal justice inquiry said:

Poverty, inadequate educational opportunities, unemployment, poor living conditions, alcohol abuse and domestic violence all contribute to Aboriginal people coming into conflict with the law. Where disadvantaged socio-economic factors lead to over-representation of First Nations people in the criminal justice system, this is...systemic discrimination.

In terms of structural change, we'd like to point out that the undermining of first nation law and governments by federal and provincial legislation and their policies is another factor that has directly and indirectly contributed to the over-representation of first nations people in the criminal justice system.

This minority government and the minority government before it struggled with the issue of residential schools and struggled with issues like alternative dispute resolution, restorative justice, truth and reconciliation—all those issues that are fundamental to what we're talking about here. And both of the last two governments have come to the conclusion that those are good things; that we need to work through those things. In fact, the foundation of truth and reconciliation is restorative justice. It's an important principle that I think governments have come to agree is important; yet we're seeing it side-stepped in this case, and we're concerned about that.

Existing institutions involved in the administration of justice in Canada are often foreign and not familiar to many first nations people. There are language barriers and issues of affordable legal representation that all contribute to the over-representation of our people in courts and subsequently in jails and prisons.

We'd like to point out that the aboriginal justice strategy is up for renewal and ask for your support as parliamentarians to ensure that this justice strategy is recommitted to and re-funded as of the end of next fiscal year.

One issue that oftentimes gets overlooked and that we found frustrating in preparing for this is the lack of data. We're able to give you some statistics, but in order to try to get behind those numbers we need more reliable statistics. In talking with some of our federal counterparts, they encounter the same problem. So one of the recommendations we would like this committee to consider is really the need for more evidence-based research, in fact, to conduct more research before more consideration of this bill goes on.

I'd like to turn it over to Richard for a more detailed recommendation.

Thank you.

[Richard Jock, Chief Executive Officer, Assembly of First Nations]

Thank you. What I'd like to do is summarize the recommendations.

First of all, we agree with the notion that it is important to study the impact of the proposed revisions that are contemplated by Bill C-9 before proceeding with those revisions. We feel it would be really important to conduct such an evidence-based study in advance of such enactment, in order to protect first nations people from further impacts and outcomes of systemic discrimination. This would also require a review of the potential impact of the bill on self-government arrangements that were negotiated in good faith by the crown and first nation governments. Our view is that should such a study be done, this would really reveal a different course of action.

We also propose that further revisions to sections 718, 718.2, and 742.1 of the Criminal Code be conducted in order to ensure that conditional sentencing and restorative justice options remain available to first nations offenders in respect to offences that are prosecuted by way of indictment, for which the maximum term of imprisonment is ten years or more, and for which offences are punishable by minimum terms of imprisonment. In our view, it's really essential that restorative justice and alternative sentencing measures remain available as a way to address the issues of over-representation that have been very effectively made by colleagues.

We would also urge the Government of Canada, on a more broad basis, to launch an inquiry into the causes of over-representation of first nations people, and that such an inquiry adopt some of the measures that would come from this inquiry in order to eliminate the systemic forms of discrimination and over-representation.

We also feel that prior to enactment of a bill, the Government of Canada should conduct a public education campaign among first nations citizens, particularly youth, regarding the potential impacts of any proposed legislation or any final legislation.

As mentioned, the aboriginal justice strategy should be renewed. This would also be a mitigating element in terms of any potential changes to legislation.

We're prepared to discuss the statistics issue at greater length. It's a critical issue, and we have several distinct recommendations as to how to improve and enhance those statistics and to take advantage of provincial databases.

Last, we recommend that this measure not be taken in isolation, that an overall plan be taken to address the socio-economic disadvantage of first nations people. That's a critical element; otherwise this will simply result in more cost to the Canadian public. The cost of education is much more preferable, in our view, to the cost of incarceration.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Jock.

I would like to thank all the witnesses for their presentations.

We will now begin questioning. Mr. Bagnell, what is your question?

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Thank you all for coming. This is very helpful.

Giuseppe, you mentioned that the evidence you had showed that increasing conditional sentences didn't increase crime. Did this actually come from evidence the justice department has?

[Giuseppe Battista]

No. My point was that there is no such evidence. What we're saying is that we know for certain--

[Larry Bagnell, Liberal, Yukon, YT]

That came from studies for the justice—

[Giuseppe Battista]

No, but there are studies that have been made. There is the study—I have it here—from the Information and Research Service, and there are a number of studies that are quoted in the document. They relate to the application of the sentence in different provinces and national statistics on its use. But there is nothing that demonstrates anything regarding repeat offences, regarding increase in crime, or anything of that nature.

So what we're saying is that there is a certainty that if we put more people in jail, that will increase the costs of running the prisons, because we're talking about sentences of less than two years--obviously, it's a provincial expense--but we don't have the counterpart, anything that indicates that it will have any kind of impact.

[Larry Bagnell, Liberal, Yukon, YT]

Does anyone have any evidence or statistics about the treatment you get with conditional sentences, that the vast array of treatment is more effective than having a jail sentence or having probation, which is less intensive and can do less as far as rehabilitation goes?

[Jonathan Rudin]

I'm not aware of any studies that have been conducted to address that issue.

[Larry Bagnell, Liberal, Yukon, YT]

I don't know, Richard and Bob, if you had input from the Council of Yukon First Nations, but aboriginal people in the north live in the most rural communities in Canada, with the most distance, and small communities. What are the effects of incarceration when you sometimes have to take someone a thousand miles from their home to put them in jail and the effects on their rehabilitation potential by not having family support? Conversely, if you have a woman who's been assaulted and is living right back in the same small, isolated community next door to the offender again....

Do you have any comments on either of those effects on aboriginal people living in rural communities?

[Bob Watts]

Thank you for the question.

One of the effects, for sure, from evidence we've looked at--some of it anecdotal, some of it more empirical--really goes to the effect of family on rehabilitation. If you have no access to your family, you have no access to your community, and the likelihood of your being able to serve time or to be rehabilitated and enter easily back into your family or into your community is lessened. Therefore, in some cases the likelihood, then, of reoffending grows higher because a person hasn't been accepted back into their family or into their community. So somebody who is sent thousands of miles away from their community is not going to have any contact...maybe the odd phone call or letter from their family. There's a great harm in terms of the ability of that person to deal with the issues and for the community.

It's important in our case to talk about community because community is going to be one of the keys in terms of that person being rehabilitated, being accepted back into society, being part of something that's functioning at the family...and larger than the family order.

[Larry Bagnell, Liberal, Yukon, YT]

On the aboriginal justice strategy that you referred to, does it refer to discretionary sentences, conditional sentences? Is that part of the strategy?

[Bob Watts]

A part of the strategy is indeed looking at conditional and alternative sentencing, at defined sentencing like what's going on in Toronto. Actually, on the service in Toronto, it would be nice if we had more time to hear some of the real stories that happen through this institution, but they're cited in a number of studies and in a number of books in terms of the effect of their services, their sentencing services, the elders they work with, the healers they work with, in terms of the impact on individuals and the impact on communities. That's exactly the type of thing that's cited in the Manitoba justice inquiry.

[Larry Bagnell, Liberal, Yukon, YT]

Let me just pursue that a bit. It was suggested earlier in committee meetings that with conditional sentences, a guy goes home and watches TV and has fun. I know there's more to it than that, but just so people know and it's on the record, could you tell us some of the things that occur in a conditional sentence?

[Jonathan Rudin]

We are very active, as Marisha pointed out, in making recommendations and suggestions to judges for sentences. For many of the clients we work with, because of their criminal records, there is no way a judge would ordinarily release them. So what are very common conditional sentences for our clients are sentences, for example, that will require them to go to a treatment program and complete an addiction treatment program. As part of our work, we help the client fill out the forms to get there, we pay for the bus to get there. Those sorts of things are very common.

There are often quite rigorous requirements to make people follow through. We have clients who are literally under house arrest, and it's not “sitting around watching TV” house arrest. Most of our clients don't live in places where they have access to a lot of luxuries, so they're very real. There are requirements to do specific things. Often the judges ask the individuals to come back and report on what they're doing during the course of the conditional sentence.

Certainly our experiences with conditional sentences are not that it's just go away and pretend to do something for six months. If the judge doesn't have concerns for safety, the judge can look to probation as an option. Conditional sentences allow for things like treatment requirements, taking people to get diagnoses to see if they have mental health issues. All those things we see regularly dealt with by way of a conditional sentence.