Justice Committee on Oct. 17th, 2006

[Larry Bagnell, Liberal, Yukon, YT]

In our first session, the stats were given. An average prison sentence, I think, was 47 days, and a conditional sentence could be around 700. Do you think you could have more effect on improving or rehabilitating a person if you worked with them for 700 days on some of the things you just outlined, than you could by putting them in prison for 47 days?

[Jonathan Rudin]

The difficulty with the short prison sentences is that you cannot access any programming. If you want to accomplish something, if you want someone to get to a treatment program, you need to give them time for that to happen. So you do need four, five, or six months. A client who does 50 or 60 days will receive nothing. No one cares, and there'll be nothing provided to them.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Lemay, you have the floor.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Thank you, Mr. Chairman.

I want to thank our witnesses this afternoon. You shed significant light on the issue of conditional sentences.

Having personally practised criminal law for almost 25 years—from 1996 until I was elected in 2004—arguing cases involving conditional sentences in Aboriginal communities, because my riding is in northern Quebec. So I know Aboriginal communities as well.

I am fascinated by one thing. Actually, you are in a way repeating what we've already heard, because you are not the first witnesses to have appeared before us. So, our questions may seem rather pointed. Actually mine will be. My question is for the representatives from the Aboriginal Legal Services of Toronto.

I read your brief, where you state that you have five specific concerns with the proposed bill. One of them is of great interest to me. You state "In many cases it shifts important sentencing decisions from the judge to the Crown prosecutor".

That is not something I had heard up until now, and I'd like you to explain what you mean by that.

I'd also like to know if that applies to Quebec, which would avoid me having to ask the same question of the members of the Barreau du Québec, and in Aboriginal communities that are further away from large urban centres. You seem to be located in the heart of a big city, like Toronto or Montreal, despite the fact that there are small communities elsewhere.

Could you explain to me what you mean by "it shifts important sentencing decisions from the judge to the Crown prosecutor"?

[Jonathan Rudin]

Yes, thank you for the question.

As we mentioned, a number of hybrid offences carry with them, if prosecuted by indictment, sentences of over ten years. So what happens now is the crown elects whether they'll proceed summarily or by indictment.

If Bill C-9 were to be passed, the crown could decide, on a hybrid offence, to proceed by indictment. Because the maximum sentence, if proceeded on by indictment, is over ten years, any possibility of a conditional sentence would be removed, even though the crown may be seeking a relatively short jail sentence. So that is our concern: that it gives crown discretion.

I want to be clear that we have a very good relationship with the crown's office in Toronto, and we're not suggesting that there is a widespread design on the part of crowns, but at the same time, it allows crowns, in this case, to make the decision as to whether or not a conditional sentence will be available to an offender at the outset, simply by saying they're proceeding by indictment.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Would a member of the Barreau du Québec like to comment on that?

[Giuseppe Battista]

I would say the same thing, the application of the provisions. The Crown elects how to proceed. So this election may limit the judge's options in sentencing.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

Mr. Watts or Mr. Jock, would you have any comments to add?

[Richard Jock]

I think we would have a similar concern. Also, the expansion of the types and numbers of offences as well would have a multiplying effect, in our view, as to the number and type of persons affected under this provision.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

As I have argued on several occasions, I suggest we speak amongst ourselves, as lawyers. They will not listen, on the other side of the table.

But seriously, we all know what plea bargaining is. Do you think that Bill C-9 will lead to more or less plea bargaining? Do you think that if the bill were to pass in its current form, far more trials would go to completion? That would preclude any plea bargaining. Am I completely wrong or partly right?

[Giuseppe Battista]

If you will allow me, I would like to add that any measure precluding reasonable or negotiated settlements will necessarily lead to an increase in the number of trials. I think we need to factor that in when making these decisions. Let us say, for instance, that an individual with no prior record stands accused of having committed a serious crime, like one of those that are mentioned here, punishable by a term of 10 years or more. Even if this person meets all of today's criteria which would allow for a conditional sentence, if he is found guilty and has no other option but a jail term, he will be unable to say anything.

To get back to your earlier question, I would say that when Crown attorneys find themselves in that type of situation, because they now have the discretion which the judges used to have, it may be that prosecutors decide the only way to settle a case or ensure a reasonable sentence would be to proceed by summary conviction. But generally, the case would involve an indictable offence.

That leads to the opposite results. Why? Because a strict enforcement of the provision would, in this case, lead to an undesirable outcome for society. The underlying principle when it comes to penalties and sanctions is that we want to punish the person, not the crime. When you limit the options within the system, specifically for judges, this can lead to more trials. The Crown may be forced to find another charge which could apply in the circumstances, to avoid a situation which would be undesirable all around.

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

I noted one interesting comment. You said that we punished the individual and not the crime. Under Bill C-9, we would be punishing the crime and not the individual.

[Giuseppe Battista]

The emphasis is actually on the offence. Judges are told that even in a case where a just solution would be found in another provision, he cannot apply this provision. Our colleague, who is here now, gave as an example a situation where the judge had to choose between two extreme solutions. On the one hand, there would be a suspended sentence. The judge would find that it is inadequate because it does not send a strong enough message about the seriousness of the crime. But on the other hand, a prison sentence could also be unsuitable.

Offenders might not have a criminal record or associate with known criminals. When faced with a choice of putting such an individual away in a place where he can associate only with convicted criminals, a judge might decide that if it is not yet time to take this step. I think that our Aboriginal colleagues will have some things to tell us about this. At a certain point, a cycle sets in. In some cases, we want to break that cycle. In other cases, we want to avoid starting it. Conditional sentences allows us to do this. If we restrict its application, we restrict our chances of rehabilitating offenders.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay.

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Chair.

My question will be directed to Mr. Rudin and Mr. Jock.

I hear a significant amount today in your comments about the overrepresentation of aboriginal offenders and the consequences that has for aboriginal criminals. My question relates to the over-representation of aboriginal victims. If we're talking about an over-representation of aboriginal offenders in remote northern communities and what it means when they--I heard reference--are brought down to other jails in different locations, my larger concern is what this means for an over-representation of victims within the aboriginal community. It's certainly not healthy that we're having an over-representation of tragedies, in a sense, where families are shattered and the communities are shaken.

The concern I have is that if we do nothing, if we accept the status quo of an over-representation of aboriginal victims, then we are really doing a disservice to aboriginal communities. If we're going to stand up for aboriginal communities, there has to be some medicine for that problem. What can we do? What is your advice? What can the government do to stand up for over-representation of aboriginal victims?

I'd ask for a few examples. I've heard this shying away from conditional sentences is something that wouldn't be welcome. Are there are any examples of things listed in the legislation where you believe a conditional sentence isn't warranted? Are there aspects of the proposed legislation with which you agree?

For example, I looked at a few instances within parts of the Criminal Code that would be affected by this. I looked at section 155: incest. Can you think of any example where a conditional sentence would be warranted in a case of incest; or section 234, manslaughter; or section 271, sexual assault, or someone's integrity has been attacked; or section 281, abduction of a person under 14? What message are you sending someone, a mother and a father, their family, if someone has been given a conditional sentence, if the criminal, the person proven in court to have been a criminal, has an available recourse so that they could have a conditional sentence? Or for arson, where someone has lost their own home, in a case where a building or property they've saved up for has been completely disrespected and ruined...?

So what advice do you have for the government as to what we can do to protect an over-representation of aboriginal victims?

[Jonathan Rudin]

I certainly can actually speak to three of those specific examples. It's not to say, of course, that everyone who commits offences should receive a conditional sentence; we're not suggesting that conditional sentences are appropriate for everyone. What this bill does is remove that option for everyone, and there are a number of cases--there is a case at the Ontario Court of Appeal. I can get you the...it's M. and C. or M. and A. It in fact was an incest case. It went to the Court of Appeal for Ontario, and the Court of Appeal for Ontario is very strict: incest is something you go to jail for.

In this particular case, this offender had himself been molested, been sexually abused. Bob talked about residential schools. It's interesting that at the same time the government recognizes the impact of residential schools and is providing funds to people, many people are now inflicting on others the damage that they experienced in residential schools and are not getting the opportunity to heal from that. This particular individual had been sexually abused, and the court was taken by the steps that he had taken to address his issues; they felt that in this case jail was not appropriate.

We in fact were involved just recently in a manslaughter case in a town in southern Ontario. A woman whose parents had been to residential school had been drinking and got into a fight, an argument with her sister, her best friend. In the midst of that she took a knife and stabbed her, and as often tragically happens, her sister died. She killed her.

She did six months pretrial custody. When she came up for trial, she was more remorseful than you could be. There was nothing more you could do to her than had already been done, because she had killed her sister; she knew what that was like. The judge was convinced and the crown didn't appeal. There was a conditional sentence, which in her case involved house arrest and two spells of alcohol treatment, the first a short-term residential program and the second a long-term residential program. Is that the norm in all cases? No--but this was a manslaughter in which clearly the most appropriate sentence was a conditional sentence.

As for arson, I am aware of a case up in northern Ontario that occurred before conditional sentences came along. A family left their home and there was a fire and they lost their children. Again, they were so.... Remorseful can't even touch it. The pain they felt was so huge that the crown in that case said that rather than prosecuting, it was preferable to deal with it through the community justice program in the community because it would be able to help them both address why they did what they did and what led to it, and also help them heal so they wouldn't do those things again.

Those are just three examples in which conditional sentences or options like that have been used and have been effective.

[Patrick Brown, Conservative, Barrie, ON]

To be clear, do you believe that a conditional sentence can be potentially appropriate for all the offences listed in the proposed legislation?

[Jonathan Rudin]

I can't conceive of, and I don't think anyone here can conceive of, all the situations and all the individuals who come before them. Those of you who have practised law or have been in courts will have seen, on occasion, a case for which jail makes no sense. It's a rare case, but we'll see it. It is for those cases that conditional sentences, certainly in the examples you raised, would be appropriate, and at the end of the day I do think they make communities safer. This woman who killed her sister will be a better person; if she has the treatment she needs, it's not going to happen to her again. But I can't give you the same promise if you put her in jail for 9, 10, 11, or 12 months.

[Patrick Brown, Conservative, Barrie, ON]

Is that perspective shared by you, Mr. Watts?

[Bob Watts]

I think, first of all, that it's a simplistic equation to say that a first nation offender or an aboriginal offender equals a first nation or aboriginal victim. I don't think that's true. I think there are a lot of aboriginal victims who weren't victimized by aboriginal people. The premise in the first part of your question, I would argue, is incorrect.

[Patrick Brown, Conservative, Barrie, ON]

Would it be your assumption that there is not an over-representation of aboriginal victims?

[Bob Watts]

Yes. What I'm saying is it's not due...it's not a straight line to the over-representation of first nation or aboriginal people imprisoned.

[Patrick Brown, Conservative, Barrie, ON]

But conditional sentences would apply to everyone--

[Bob Watts]

That's true.

[Patrick Brown, Conservative, Barrie, ON]

--and the issue is an over-representation of victims.