Justice Committee on Oct. 17th, 2006

[Giuseppe Battista]

We are sorry to say that this kind of analysis does not seem to have done yet, especially with regard to the application of such sentences in the case of various offences and the circumstances of their application.

For instance, we do not know whether persons without a criminal record who have benefited from a conditional sentence are more likely to reoffend than persons who have been jailed.

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

According to statistics, since the implementation of conditional sentences, has there been an increase or a decrease in crime in Canada?

[Giuseppe Battista]

I could give you an empirical answer, but on page 15, in the section entitled "Conditional Sentencing Data", you will find the data I was referring to earlier. That section deals with the use of conditional sentencing, the number of conditional sentences that have been imposed and the percentage of convictions involving a conditional sentence.

There have been increases and decreases, but in general, the use of conditional sentencing has increased, albeit always within certain limits. The percentage of these sentences does not exceed 12%. So it's a very limited category. In any event, no reference is made to the type of study you are referring to.

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

Well, that's not what I wanted to know.

Regardless of the studies, do the statistics show that crime has gone up or gone down?

[Giuseppe Battista]

I will give you an empirical answer, as an informed person, not as someone who has done in-depth studies on this. The general trend indicates that crime is decreasing.

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

You will find that in general, people in favour of doing away with conditional sentencing tend to look at the most serious offences and say that conditional sentences cannot be justified in those cases. They say that some judges have used them, but that it should no longer be done, and that as a result, conditional sentencing should be completely abolished.

However, in the studies you have, and that are available to the committee, it says in relation to offences for which conditional sentencing is not possible that judges impose them in only 12 per cent of cases. So that remains a relatively infrequent sentence.

Could you explain to those who don't know what the circumstances are in which a maximum sentence is imposed? In Canada, those are very stiff sentences. For example, entering a home and falling asleep in front of the television could give rise to a sentence of life imprisonment. Theft over $5,000 could give rise to 10 years imprisonment.

In which cases do the courts feel obliged to impose the maximum sentence?

[Giuseppe Battista]

I think, as the saying goes, it's in cases of the worst crime for the worst offender.

That is, the worst crime for the worst offender.

That's why, in my presentation, I questioned whether it was reasonable to think that this sentence would be useful if it were only applied in the case of offences liable to sentences of 5 years, 2 years, 18 months or 6 months. The Criminal Code provides for these sentences.

If someone who has committed an offence that is liable to a sentence of at least two years appears for the first time before a judge, the judge, before sending the person to jail, is going to have to verify whether there are circumstances warranting that person's isolation from society. I can tell you that it's relatively rare for people appearing in court for the first, or even second, time.

Conditional sentences are imposed in cases where the judges feel that a sentence of imprisonment is required. When that is required for a first offence, it's because that offence is serious. We are talking here about individuals with no previous criminal record, who have committed an offence, but who fit the profile of someone who is clearly a candidate for rehabilitation. Sometimes the person is already fully rehabilitated, for example, when the offence was only reported years after the fact. We are not just talking about sexual abuse here; there are other types of offence too. In some cases, the person is fully rehabilitated.

So the court has before it an individual who has committed an objectively serious offence, which, objectively, should give rise to a sentence of imprisonment. However, a sentence of imprisonment is not justified in such a case. This is the type of offence we are talking about.

I have taken up too much time, I'm sorry, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Petit, what do you say?

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

My question is for Mr. Battista, from the Barreau du Québec, first; Mr. Rudin or the lady here could also answer after.

There are extremely powerful street gangs in Montreal, so much so that Ms. Mourani, from the Bloc Québécois, has published a book condemning the situation. Not far from Montreal, in Kanesatake, houses are being burned down, drugs are being trafficked, there is prostitution and there are street gangs. We are dealing with two separate groups, but they operate the same way. These groups are subject to—I hope you will agree—the Criminal Code, and they should certainly be punished. The former minister here had problems with the Kanesatake group in the past. The Sûreté du Québec is afraid to go into Kanesatake. That's the first problem.

The Montreal police has problems because the street gangs so powerful that they operate virtually in broad daylight, and it's no secret to anyone. What do they do? Quite calm things at times: they sell drugs and engage in prostitution. They commit crimes that, on the face of it, are not violent. However, these crimes entail a frightening problem for all communities: 14 and 15-year-old prostitutes. For seven, eight or ten years, even our Department of Justice has been having problems. Mr. Ménard had to confront the worst gang ever, the bikers. However, they weren't selling drugs. That's soft, drugs.

We are dealing with the same problem currently. There was the legislation we are talking about today. Everyone was given every opportunity to succeed. I'm wondering whether, despite all of those opportunities, we haven't fallen into the same trap 10 years later. We can't get out of it. We had this problem before, and now we are having it again. Do you have a solution?

You say that imprisonment is sometimes an excessive sentence. It's easy for us to sit around a table and talk about what is excessive. But could you tell me why, when a conditional sentence is imposed and not respected, a sentence of imprisonment is imposed? If a sentence of imprisonment is not the right sentence, why don't we hand out a second conditional sentence, if it's so good? I'm trying to understand your view point. I respect it, but you and I both have a problem in our community. If we don't get it together, we will soon have a problem.

Mr. Battista, what is unreasonable about this bill? What would you keep and what would you get rid of?

[Giuseppe Battista]

Thank you, Mr. Petit. There are a number of aspects to your question.

You said that the threat of imprisonment is always there when a judge imposes a conditional sentence. To begin, you have to acknowledge that it is indeed a sentence of imprisonment that is imposed. The only difference is where the sentence is served.

When there is a breach, the legislator at the time provided that incarceration would not be automatic. The judge can do nothing, adjust or order imprisonment. There's a range of options. In this respect the current legislation affords some leeway to rectify a given situation, if needed.

A member asked a question about the distinction to be made between a street pusher who is addicted to hard drugs and those who are involved at the higher, more organized level. I think that is what you are alluding to.

On the facts, I don't think many conditional sentences are imposed. People involved in structured criminal organizations, who have a criminal past and represent a danger to society, are not entitled to a conditional sentence. If a judge feels that an individual is involved in organized crime and will continue, once released, to act as a member of an organized and structured gang, that provides sufficient ground for the judge to deny bail. That individual, although presumed innocent, may not be released from captivity.

In serious cases, if a judge feels that a conditional sentence is warranted, it's because the individual meets all of the criteria and because the best way of ensuring that the individual does not go back into that environment is to order a conditional sentence. But I think that the cases you are describing are rare, exceptional cases. When it comes to dealers, the image that comes to mind is the one your colleague referred to, that of Al Pacino. It's an image, but there are many steps to take before you reach that level. There are some individuals who find themselves in the wrong place at the wrong time. They grow up in a neighbourhood and have certain associations. These realities have to be taken into account.

You are talking about a serious problem. But you have to adapt the punishment to the individual who is brought before the courts.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Battista and Mr. Petit.

Mr. Murphy.

[Brian Murphy, Moncton—Riverview—Dieppe, Lib.]

Thank you, Mr. Chairman. I have a few questions for Mr. Battista.

We have just received a brief about the bill from André Jodoin and other academics from Quebec. Do you know these people: Julie Desrosiers, law professor at Laval University, Simon Roy, from the Université de Sherbrooke, Rachel Grondin, from the University of Ottawa, and Anne-Marie Boisvert, dean at the Université de Montréal?

I know Anne-Marie Boisvert, at least.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

All we have received is this brief, and, unfortunately, they will not be appearing before this committee. Mr. Jodoin wrote a sentence that says—I have the English version—that conditional sentencing is used more often in Quebec than in other parts of Canada.

In your opinion, is that true? If so, why?

[Giuseppe Battista]

I'm going to speak from an empirical standpoint, because I have not studied this, and on behalf of the majority of lawyers who practise criminal law. Conditional sentencing has been used a lot in Quebec. As a practioner, it's my impression that the Quebec Court of Appeal has had a tendency to restrict its application, whereas the courts of appeal of other provinces have tended to extend it.

We have found that judges at times impose suspended sentences in cases where they felt that imprisonment would not promote rehabilitation as well as a different type of sentence.

Judges now impose conditional sentences automatically. So they now exercise greater supervision over individuals than before. A suspended sentence allows for three years of supervision; a conditional sentence, if a judge applies the full range of measures that go with it, allows for five years of supervision.

I have spoken about our experience from an empirical standpoint. At the Barreau, we are somewhat concerned, because we see no negative causal connection. It seems to us that the use of this provision has had positive effects.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Merci.

The paper I have is in English and includes probably the best few sentences I've seen. I'll open this up to all of the witnesses and ask whether you agree with the kernels contained in it. This is from the paper by the professor I mentioned.

The Bill introduces rigidity where flexibility is needed. It deprives judges of a powerful and sophisticated tool enabling them to arrive at equitable solutions in complex and difficult cases. It hinders the development of a harmonious and coherent law. It promotes prisons instead of cheaper more efficient and more humane solutions. It should not become law.

What do you think of that synthesis of the issue by the academics?

[Bob Watts]

In some ways it sums up what we've been talking about as far as the tools judges require, particularly when you're dealing with our communities. We need tools and types of sentencing that are specific to our communities.

At the same time, as we've said in our report, there needs to be more study. We've tried to do a sort of reverse study of this to find out things like all the good things about mandatory minimums. How has that worked? What great success stories are out there? There aren't many statistics either way. I think we should engage with each other, do our homework, and find out what will be best for the people of Canada and first nations people in particular.

Thank you.

[The Chair, Conservative, Art Hanger]

Ms. Roman.

[Marisha Roman]

I concur with my colleague.

[Jonathan Rudin]

That sums up our position as well.

[Giuseppe Battista]

I concur.

[The Chair, Conservative, Art Hanger]

Mr. Rudin, I know you wanted to reply to Mr. Petit. Do you still want to make a comment?

[Jonathan Rudin]

No, that's fine.

[The Chair, Conservative, Art Hanger]

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you very much, folks, for the fine presentations you made today.

As you know, we've been studying this bill for quite some time now and we've been listening to quite a large number of witnesses of varied opinions. One opinion that's not brought to this table very often is the opinion of various groups or organizations that are specifically working in certain areas that we mostly hear from. I find that the supporters of this bill seem to come from the enforcement side of the spectrum. Police officers are supporting this bill. Probation officers are supporting this bill. I know corrections people are. Victims of crime are certainly supporting this kind of legislation. But there are other groups who are not.

I'm a politician, as are the rest of them, and we're sitting in a position where we have to make up our minds on what we are going to do. On one hand, we have a group of people who say this is not the route to go, yet on the other hand we have people who are cheering us for this decision.

Some people would call it political, but I don't think it's necessarily political. Over the last few years, we've had quite a few elections rather quickly. I can remember my door-knocking, going door to door and talking to the public. It seemed like no matter where I went, other than just in my riding, the top issue that was always mentioned, but it seemed that always second to that was the justice system: for crying out loud, fix the justice system. I heard that over and over again.

I would suggest to you that the public, from my door-knocking experience, is not satisfied with what's happening in our judicial system, not at all. I think that's reflected in...yes, they're not the standard, but when you hear of a seventeen-year-old who sexually assaulted and virtually raped the next-door neighbours' little girls, and he received house arrest and is back living in the home beside those same victims, what kind of a justice system would allow that to happen?

We hear probation officers talking about the great number or quite large number of people they are supervising on house arrest or community service who have attacked or violently attacked little kids. They're sexually assaulting little children, yet they're out there doing this. The public objects most vehemently that these people should be allowed into the public.

I have some reserves in my riding where the people are complaining about guys being allowed back in their communities after what they did, given the seriousness of the crime. That's not every case, because I believe—and so do a lot of other people—that there is room for conditional sentencing and there's room for this thing. But sometimes we get this message completely misconstrued, and I'm telling you that the Canadian people are not a happy lot. They want change, and that can be verified by the literally millions—not a few, but millions—of signatures on petitions that have come through this House of Commons starting in 1993, since I've been here. They are still in there, demanding that we toughen up this justice system, start getting justice in our society, and stop supporting a legal system that is not effective.

So that's the dilemma I'm in as a politician. I can't disagree with anything you folks have said, but I do know one thing. The public that pays the bills for our justice system is not happy. To the people at the door, I'll say that's going to take a lot more prisons, and they'll say to build them, they're paying for them, they're the taxpayers, so build them and fix this because it's not safe out there. People in our communities are feeling safe less and less as time goes on. And we know the events that are happening in our cities and all that they're causing.

So is your final analysis that this is not a move to get tough on crime and to give people some hope that we are going to definitely do something about protecting them? Or are we going to continue going down this path of saying we must provide this and that and still leave that same perception, still receive our petitions, and still table those petitions in the House of Commons while still not answering the cry from the public? And I might add once again,the public is made up of the ones who pay the bills—the taxpayer.

I get to the point where I sometimes don't know what to do. I understand what you're saying, but I believe you're not adhering to what the public's demands are. Those demands are even coming from the reserves. I want to stress that, because I have heard over and over again, particularly from the women on reserves, questions about why they are treated as second-class citizens.

Why is it that people who offend, if they happen to be aboriginal, get special consideration because 718 of the Criminal Code says they should? They want to know why we do that to them. If that offender was a white man, they'd throw the book at him, so why are we giving them second-class citizenship?

There's no satisfaction out there. There is none, and we have to do something about it.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Mr. Watts, do you have a reply?