Justice Committee on Oct. 23rd, 2006

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

I want to give a brief summary of my view on the amendment. It's also a summary of all the hearings.

Basically, I think we're coming into a system in which prison doesn't work. For centuries we've had it, and crime just keeps going on. It's mostly recidivism and it obviously doesn't work, so something new was put in: conditional sentencing. A vast majority of the witnesses and evidence suggested that either there was improvement or that it was not any worse than the prison option. In fact even the minister, when he appeared before us, had a chance to bring forward a few cases--perhaps eight or half a dozen out of tens of thousands of the worst ones--and even in those eight, he couldn't answer whether or not conditional sentencing had worked. It could have worked in all of them.

The downside of removing the option is that when the courts still try to come up with a fair outcome, an unintended consequence that will make things more dangerous will be that some people won't be convicted because the sentences available won't be reasonable. Some will proceed by summary conviction, and therefore won't get as long a period of treatment as they should otherwise get, or could otherwise get, and as the NDP's Mr. Comartin said, some will be given probation who otherwise wouldn't have been given probation--a less effective treatment than conditional sentencing, because it does not have all the options of various treatments and conditions.

One thing that was disappointing in the hearings, something that wasn't emphasized enough and that we didn't get enough evidence on, was the detailed types of conditions and treatments that go along with conditional sentencing, and why that option is so universally accepted by the academics and practitioners in the field. Although it appears counterintuitive at the beginning, to me all this evidence suggests that we're making a safer society for women and children and victims, because offenders will be a lot less likely to reoffend. Remember, every single person who is going to be dealt with in this law is going to be out on the streets again, or has the potential to be out on the streets again, so if they're all going to be out there, and you have two options, and one of the options is less likely to reoffend, then that's the one you would choose to make victims and people and society safer.

Finally, as the representative for the north for the opposition, let me say that we have some unique conditions that would even exacerbate the potential of a person to be more dangerous. When they have to go to jails that are hundreds or even thousands of miles away, they're away from the family supports that everyone needs in rehabilitation. You could exacerbate the damage that a prison does to a prisoner even more than in the case of someone from the south.

All that leads to not supporting the bill at all, but we have all heard evidence that some Canadians are worried about the serious cases if the amendment is brought forward, and they don't want this option for those people. I can go along with that sentiment.

The second point is again related to the uniqueness of the north. In some of these serious sexual offences, for instance, you'd like to put conditions on the conditional sentence, but because we have tiny, remote communities, it would be almost impossible to keep the offender away from the victim, often a female, because those communities are so small and isolated. In that respect, the amendment would deal with those situations.

Finally, I will address the two objections. The first one was by Mr. Moore. It was that serious offences would not be captured. Remember that all the maximums that are available to capture those offences are still there, so if judges make the appropriate decisions, all those serious offences will still be captured. The ability of the courts to capture them is still there.

The only other objection so far in the discussions was I think from Mr. Petit. It was that we don't want to fail to protect women and children. As I've already said, the evidence suggests they'll be more protected.

What was really compelling and surprising for me was the astounding statistic that a conditional sentence with probation was an average of 700 days in treatment, trying to stop the recidivism that we've never been successful in achieving in society...and conditions, etc., to rehabilitate a person, whereas for prison alone the average is 47 days. So if you have 700 days, with a lot of options, to try to solve a problem we've never solved versus 47 days, it was convincing to me that society would be safer with the 700 days.

Thank you, Mr. Chair.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Murphy, what say you?

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

Thank you, Mr. Chairman.

Very briefly, I won't rehash many points. Kudos to Sue Barnes for working with the other parties and getting some amendments that make some real sense.

I think what I objected to most of all about this bill from the outset, as a new member of Parliament and as a lawyer, which I don't feel I should apologize for—the member of Parliament, I don't know, but being a lawyer I don't apologize for—is that the judiciary appeared to be under attack in this bill. There was an animus that the system isn't working, they're too lenient, and therefore we're going to fix it with this bill. I found that offensive.

But I think what's important is that the government did not set out to completely eradicate conditional sentences, even though it may have led the public to believe that's what it was about to do. So if the goal was not to completely eradicate but only to tighten, I think these amendments do that.

Secondly, the overwhelming evidence of the witnesses here was that conditional sentences do work. They are appropriate in many instances. By limiting them, or refusing to allow them in the three instances in this amendment, the government has in fact set out and succeeded in its job of tightening the use of conditional sentences for serious offences, I'll call them. “Mission accomplished”, they might say, but it's also to keep in mind that this is a process. The application of conditional sentencing is something relatively new to the Criminal Code and the criminal justice system, and there is in this amendment and in the bill that was presented by the government, I think, an implicit bowing to public perception that they weren't working.

I might blame the media and I might blame the government for creating and heightening those perceptions, but the perception is there. As Myron Thompson would say if he were here, the people are always right, and the people feel that something needs to be done with respect to some conditional sentencing applications. This amendment does that.

We also have to remember, as responsible committee members, that several AGs in several provinces have been calling for the curtailing of conditional sentences in some applications, which is exactly what this amendment does.

Finally, it is about the victims. It is important to remember that a person given a conditional sentence is monitored, as the cold eye of society and the justice system is over him or her for a longer period of time than somebody who's merely thrown in prison.

I think Larry touched on it with respect to the north, but it can't be said enough that any sentencing regimes affect our aboriginal population disproportionately, so we must, as responsible members of Parliament, tread very carefully when we tighten and strengthen penalities that we know statistically affect deleteriously the aboriginal community.

So I am all for this amendment. Of course, Sue Barnes would kill me if I wasn't, but I'm also for it in my own heart.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

[Sue Barnes, Liberal, London West, ON]

On a point of order, I'm not capable of killing even a fly.

[The Chair, Conservative, Art Hanger]

Mr. Moore, would you like to speak about the cold eye of society?

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks. There has been a lot of discussion. I've had time to look at the amendment further and consider it, and I would suggest to opposition members that we can't have it both ways. On one hand, conditional sentences--I've listened to what everyone said--are seen as being some sort of be-all and end-all: it's a much better system than prison; it solves all our problems; judges always, always apply conditional sentences appropriately. That's what I'm hearing. Yet here's an amendment that does limit conditional sentencing.

The government was listening to Canadians, and we've said that we do need to limit conditional sentences. We've said that when someone is a victim of Internet luring, arson for fraudulent purposes, or break and enter, when we have a situation like that, who are we to sit here and discount that as being somehow not serious?

I heard it from some of the witnesses. I might as well say that we had some academics here who may never have had to deal with a victim in their life. We also heard, from victims groups and police officers who are on the front line dealing with victims every day, their sense of justice, their sense that justice has been served, that their government has protected them, that the justice system has protected them; their sense of security when, if someone has committed an act against them, whether that be physical or whether that be a property crime, they think there may be justice served. They hold out some faith in our system, and down the road when they find out that the person is right back into the community, their sense is that there has been no justice served whatsoever.

Again, I do not favour the amendment, just for those reasons. I did want to respond after having time to analyze it a little further, because this was the first that I had seen it. But I think it's too narrow. I think it's narrowing it too much. There does seem to be some admission on the part of the opposition that there are cases where the conditional sentence shouldn't be used. I would argue that it's in the cases that we set out in the bill, and this narrows the bill too far, I would suggest, because it leaves out some very serious offences where Canadians are left as victims and where their offender could be right next door after going through the justice system. The victim is still there, has to live with this the rest of his or her life, but the offender gets to serve time under house arrest.

And we've all heard about the amount of supervision that goes into these conditional sentences. I know it sounds fine to say there were so many days of supervision, but what was the evidence on the supervision? I heard evidence that there wasn't effective supervision on conditional sentences. So there is a reason there is an impression out there from the Canadian public that people who commit crimes are getting away scot-free when they get a conditional sentence.

And there's an admission in this amendment that this is the case, but I just feel that the amendment doesn't go far enough. Those are my thoughts on the amendment, and I guess that's all I have to say about it.

[The Chair, Conservative, Art Hanger]

Mr. Lee.

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

Thank you, Mr. Chairman. I suppose there's not a whole lot more to be said.

To respond to Mr. Moore, he's suggesting—I just use his words—that there are some serious offences that won't be caught by this restricting section. But in fact almost all the offences he might be concerned about are caught by the Criminal Code section itself, because conditional sentencing, under the existing Criminal Code provisions, can only be used if the proposed sentence is less than two years. If a judge reaches a conclusion that a crime is serious enough for a penitentiary sentence, there cannot be, under the existing provisions, access to the conditional sentencing provisions.

The Criminal Code does not impose conditional sentencing on anyone; it is only a sentencing option. I heard evidence here that the government bill in its current form could or would seriously impair sentencing procedures currently being used in aboriginal sentencing both in the north and in urban areas, and in some specialized courts—there are three or four drug courts now specializing in that area that make use of conditional sentencing.

I practised in the Toronto area. I know there are some courts that, while not formally specialized courts, focus on either women's matters—a criminal court for women—or family. These are courts that would, to a greater or lesser degree, from time to time want to rely on conditional sentencing, so I have been cautious about unduly restricting it.

For a reasoned restriction to address the hypothetical glaring example of a poor decision by a judge in sentencing, you have my attention.

My colleague says “appeal”. The way to solve the 2% so-called error rate among judges is probably an appeal. I admit that they are expensive, that we don't want to bog our crown attorneys down in too many appeals, but that is a possible solution.

The bill, the way it was drafted, used a measuring tool that I believe everybody around here sees as a very rough instrument: the 10-year maximum sentence. For all the reasons that were mentioned by our witnesses, including our experts, it just wasn't a good instrument as the measuring tool to restrict conditional sentencing.

So we looked for another one. I looked for another one. The best one we could come up with, within the scope of the bill, is the one we have here today.

For the record, I just want to reintroduce my concern. Because the bill makes a distinction between indictable and summary procedures when it comes to the availability of conditional sentencing, I viewed this as a pushing down onto the crown attorneys and police of discretion and decision-making early on in the process, which would not affect the weight of the criminal procedure to be used but would actually affect the availability of this type of sentencing to an accused. That's an additional level of decision-making on the part of a crown attorney, and it just didn't look right to me to have crown attorneys making those types of decisions that early in the process.

As it stands now, crowns will be making some of those, but because of the design of the amendment, which I intend to support, the ambit of their decision-making will involve a smaller basket of Criminal Code charges, and I regard that as a good thing.

Is the current amendment as effective as a specific listing would be? No, it probably isn't, but if we were to use a list, we would probably argue indefinitely about what would and wouldn't be on the list. But I am prepared to have confidence in the judiciary that when a serious matter warrants a sentence greater than two years, we don't have to be concerned about conditional sentencing, because it simply isn't available under the current regime.

Thank you, Mr. Chairman.

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

The parliamentary secretary mentioned witnesses who appeared before us. I'm sure it was unintentional, but he left out that the Canadian Bar Association, the Barreau du Québec, and basically everyone who deals with inmates told us the bill went too far. I would remind the parliamentary secretary that the judge's work ends once the sentence has been handed down. If the parliamentary secretary, and I say this with all due respect, does not agree with the way in which sentences are handed down—in other words that parole is granted too quickly, that conditional sentences are imposed too readily, that probation officers do not have the resources they need to effectively supervise the sentences imposed, then the parliamentary secretary should tell the Minister of Justice to ask the Minister of Public Safety to provide funding for these purposes. Our job is not to determine whether sentences are properly enforced; our role happens before the sentence is handed down, and involves mainly determining that the courts hand down sentences in keeping with the law, in keeping with the Criminal Code. So judicial discretion exists, and under this amendment, it will continue to exist. Tailoring sentences to individual crimes, which is so important in our Criminal Code, will therefore continue to exist and to ensure that Canadian courts are respected, not just in North America, but throughout the world, for the type of sentence they impose. That is why I and my colleague will be voting for the amendment.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lemay.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much, Mr. Chair.

Because my colleague was talking about lists, and for those who don't know, I'll put on the record part of the advice received from the legislative clerk to the senior levels, and verified by me personally, that it would have been an illegal amendment to this bill to have done an exemption list, because that would have been ruled out of order. Well, I know she gave me that advice, so I'll simply state it here.

The other point I want to make is that I think there are some lessons learned here. The Minister of Justice came before us in the first bill meeting saying he was prepared to say that if we came up with another way of dealing with this as opposed to the arbitrary way of simply going the 10 years, he was open to that. So we have done something that is inside of those concepts. We had to work inside of those concepts. As I said, there were only two legal ways to amend this bill.

The other thing that might be a lesson from this activity comes, again, from that first meeting when I asked the Minister of Justice for access to the bureaucrats inside the Department of Justice to help work on some amendments. There was a reason for that. It was about going through these offences having their expertise. That was refused to me. Thankfully, we have a very good researcher here in Robin, and I went to him to put together an idea of the starting lists that would have been included in this amendment.

In case anybody on the opposition benches feels this is a short list, there are three pages of serious offences that would have been captured here. There would be subjectivity. I mean, it will always be up to the judge to determine terrorist activity, or criminal organization activity, or what a serious personal injury activity is, but the bottom line is that this is not an irrational amendment, this is a factual amendment.

I think for the working of the committee, when there are bona fide approaches to working with a bill to create good policy and asking for access to complete briefings or access to people who have the best knowledge, those people should be made available to us. We got to the same result probably, but at the same time, it could have been done in a better manner and making it a situation where the committee could work more collegially, at least from the government to the opposition.

With that, I'm very happy that my colleagues from the other two parties are prepared to join in this amendment, because I think it is appropriate. My personal preference would have been that discretion be there, but that was not available to us. Because we believed that the public was concerned and wanting some tightening, I made it very clear from the first speech last spring and my first meeting with the government representatives that we would be working toward some movement to tighten the range of conditional sentencing.

Thank you very much.

[The Chair, Conservative, Art Hanger]

That's the end of my speaking list. I trust the committee will vote on the amendment now.

[Patrick Brown, Conservative, Barrie, ON]

Mr. Chair, may I ask for a recorded vote?

[The Chair, Conservative, Art Hanger]

You may.

(Amendment agreed to: yeas 7 ; nays 4)

[The Chair, Conservative, Art Hanger]

Is there any further debate on the clause before we go to the vote?

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

I'm sure you're doing it right, but we had a government amendment also. Will that be dealt with in the next clause?

[The Chair, Conservative, Art Hanger]

It's the next amendment.

Shall clause 1 carry as amended? A recorded vote? No one asked.

(Clause 1 as amended agreed to)

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

Could you wait a moment please, Mr. Chairman? Could you please repeat what you said? I was looking at my other papers. When you ask whether clause 1 shall carry, are we to understand that you are referring to clause 1 as amended?

[The Chair, Conservative, Art Hanger]

Clause 1 is carried as amended.

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

All right. I would ask for a recorded vote, because this is important. This was done for the amendment, but not for the clause itself. I believe I am entitled to ask for a recorded vote.

[The Chair, Conservative, Art Hanger]

We went through that, and I did call on the members to respond accordingly. No one did. The clause was carried as amended.

Mr. Moore, please.

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

That is all right.

[Rob Moore, Conservative, Fundy Royal, NB]

Amendment G-1 would simply delay the coming into force of the bill by six months, and that came out of meetings we had with the federal, provincial, and territorial levels. It gives some more time to get ready for the implementation of the bill.

[Sue Barnes, Liberal, London West, ON]

First of all, can I ask whether this amendment is in order?