Evidence of meeting #23 for Justice and Human Rights in the 39th Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was amendment.
A recording is available from Parliament.
4:05 p.m.
Liberal
Sue Barnes Liberal London West, ON
I have a point of order. Mr. Hanger, I believe the Internet luring was sent to committee here, so it may be captured.
4:05 p.m.
Conservative
The Chair Conservative Art Hanger
The bill is going to be before the committee, but that's the status of that particular bill.
Go ahead. Do you have a point of order?
4:05 p.m.
Bloc
4:05 p.m.
Conservative
The Chair Conservative Art Hanger
Monsieur Ménard, he wants to finish his statement in reply to your first question. So--
4:05 p.m.
Conservative
Rob Moore Conservative Fundy Royal, NB
That bill has been sent to committee, but it's not captured. It's not defined as a serious personal injury offence as defined in section 752, so if our bill were to be amended as suggested, that would not be captured.
There are other serious offences that would not be captured by the bill if we chose to amend it in this way. We said very clearly that we do not want the conditional sentence to be available for serious offences. We've heard from victims groups; we've heard from those groups that Internet luring, break and enter with intent to commit an indictable offence, or being unlawfully in a dwelling house are also serious offences. They would not be captured by the bill if we adopted Mrs. Barnes's amendment. That is why I cannot support it.
We put forward a bill that recognizes that the use of conditional sentences has increased. We know that. We saw evidence of that. This is a way of ensuring that people who commit serious crimes, as set out in the bill, do not receive house arrest.
Those are my comments on the amendment.
4:05 p.m.
Conservative
The Chair Conservative Art Hanger
Thank you, Mr. Moore.
There are other speakers on the list, and you've had your opportunity once, Mr. Ménard, but I will allow you to ask a point of clarification if you need to.
4:05 p.m.
Conservative
The Chair Conservative Art Hanger
I'm not cutting that off. You've had an opportunity to speak once, and Mr. Petit is on the list.
4:05 p.m.
Bloc
Réal Ménard Bloc Hochelaga, QC
I will conclude.
I just want us to understand one another clearly on one point. I respect the government's reasoning. It is your prerogative to vote for or against this, and the same goes for us. Here, we will restrict ourselves to the law as it now stands and to the way in which the Supreme Court has interpreted conditional sentencing. My question is for Ms. Kane.
Would you agree with me that in the Supreme Court decision in Proulx in 2000, it was clearly pointed out to us as lawmakers that a conditional sentence was indeed a prison sentence?
I will not go into other subtleties of the decision. All too often, during our committee's work, members have acted as if conditional sentencing was not imprisonment. I agree that the system may have some deficiencies, but as we complete our work I would not like anyone to be left with the impression that a conditional sentence is not a sentence of imprisonment. Have I understood the Proulx decision correctly?
4:05 p.m.
Catherine Kane Senior Counsel, Director, Policy Centre for Victim Issues, Department of Justice
Yes, you're correct that the Supreme Court of Canada has made it clear in relation to conditional sentences that the first point is to determine whether a sentence of imprisonment is appropriate. Then the next consideration is whether that term of imprisonment can be served in the community, and if so, under what conditions. In that case and in subsequent cases the court also clarified that, under the present law, no particular offences were ruled out of the scope of a conditional sentence, but that it was up to Parliament to decide what the parameters should be.
Bill C-9 is resetting those parameters to clarify when a conditional sentence should be considered appropriate.
4:05 p.m.
Conservative
Daniel Petit Conservative Charlesbourg—Haute-Saint-Charles, QC
Like Mr. Lee, I would like the following facts to be on the record. I read Ms. Barnes' amendment rather late, but I did nonetheless read it. Like my government, I will be voting against the amendment, but I would like to explain why.
One of the reasons I am here in Parliament is that, as a practitioner of law—like Mr. Lemay—I have worked both for victims and for the Crown. In Bill C-9, Parliament's intent is to protect victims. I would like it known that I, Daniel Petit, wish to protect victims and do not wish to try by all kinds of means to protect what we have already tried unsuccessfully to protect in the past.
I would like it clearly noted that I am absolutely against the idea of having the amendment passed in this fashion. I want to stand in the way of leaving victims unprotected against crime, regardless of whether those victims are children, women or even men. I think that is very important. This is not about procedure and legal argument; this is about putting victims first.
4:10 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you, Mr. Chair.
I, like the Bloc, will be supporting this amendment. The evidence I heard that stuck with me, quite frankly, even before the committee work started, and certainly during the course of the committee, was that we had concerns in the country over the conditional sentencing regime being used inappropriately where the crime itself cried out from the public perception for a more severe sentence than what would be entailed under a conditional sentence. I believe this amendment addresses that.
I have to say, Mr. Chair, when I first saw it and did some analysis of it, I was still quite concerned about whether it wasn't too restrictive on the extent that conditional sentences could be used, and some of the directions and restrictions we were placing on the courts. But after further analysis, I believe we have struck the proper tone and I think we're developing the proper response to the concerns that we've heard from our communities right across the country. In that regard, Mr. Chair, we heard evidence that if the government's amendment, which is Bill C-9, was to go through, roughly 5,500 incidents--that is, charges--each year would have been precluded from consideration for conditional sentences.
I've done an analysis--it's not exact--that if all of the charges that are precluded, at least on the surface, under section 752, which is basically going to be the test for the courts now if this amendment goes through both here and in Parliament, only about 1,500 charges per year will be precluded from consideration. We know, Mr. Chair, that in addition to those that, strictly speaking, are precluded from this, a number of them will still be dispensed with by way of probation, which, quite frankly, is a worse alternative than conditional sentencing because of the restrictions the judges have on any conditions or terms that they can place on probation orders. Again, we heard extensive evidence on that point.
The final concern I had, Mr. Chair, was over costs. We know that the figures would be quite extensive if all 5,500 of those charges were excluded from consideration and a large number of those people ended up in provincial prisons. Of course, the costs would be to the provinces, not to the federal government. Again, I believe, if we pass this amendment here and in the House, we will have dramatically reduced the exposure to the provinces of these added costs. I haven't done an analysis, Mr. Chair, but it will be substantially less than what would have occurred under the government's amendment.
Mr. Chair, let me make one final point. I looked at some of the specific offences, and I actually had the House do some statistics on it, and four or five of the charges would fall under the serious injury offences that draw most attention and make up most of those 1,500 incidents or charges that I mentioned earlier. There were two that in particular bothered me, and we were going to exclude them completely. One of them was the charge of causing bodily harm. In that regard, in the last year that we had statistics, there were 850-odd conditional sentences given for that offence. A number of those offences I'd have to assume, Mr. Chair, given the quality of the judiciary in this country, were appropriate conditional sentences, where the bodily harm was not of such a serious nature that it called for imprisonment. So in a number of cases, 850 of them, our judges found that. There are similar provisions under some of the driving offences.
What we're doing by passing this amendment, again, assuming it goes through, is allowing the courts, the judges, to make this determination, that even though they are convicted of assault causing bodily harm, the consequences of that assault--that is, the injury to the individual victim--is not so severe that it precludes the use of conditional sentences.
In that regard, I did do some research on cases under existing section 752, and a number of the cases say that this section can be invoked in these circumstances. Conditional sentence is granted even when they meet the legislative test but they don't in effect meet the circumstantial test. So if the assault causing bodily harm is of a more minor nature, they would still be eligible.
Having determined that, Mr. Chair, I'm quite satisfied that the number of offences that ultimately are going to be precluded are going to be the ones that society wants precluded, and that the judges have enough direction under this amendment that they will know which ones are to be precluded, those being the ones causing the most serious injury and crying out for a more severe penalty.
Those are my comments. Thank you, Mr. Chair.
4:15 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I will say at the outset that if it had been my decision alone, I would have voted against the bill without hesitation and strongly recommended that my colleagues in my party oppose the bill outright.
But I have come around to Ms. Barnes' opinion, and to the opinion of my colleague, the learned and extraordinary Réal Ménard.
October 23rd, 2006 / 4:15 p.m.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
I will stop there, Mr. Chairman. He has succeeded in persuading me that this amendment is fair, and that it will guide courts satisfactorily in the future. I will therefore accept his view.
Nonetheless, I do have a comment for my colleagues across the way. I would reiterate the words of Giuseppe Battista, who is probably one of the best criminal lawyers in Quebec. He's very highly respected by the Superior Courts, the Court of Appeal and the Supreme Court of Canada in particular. He has told Parliament that if Bill C-9 were passed in its current form, crimes, not individuals, would be judged. This runs counter to all practices established by the courts, and counter to the principles of rehabilitation and punishment.
I have argued cases in court and in criminal court for 25 years, and always found it important to remind the judge that he or she was to judge the accused, not the crime. Committing a crime is a reprehensible act, regardless of the crime involved. As the saying goes, he who will steal a penny will steal a pound. It is unfortunate that our colleague is not here today, because I would tell him that when the issue is rehabilitation and punishment, we need to think about the person in the prisoner's box, not the crime.
Of course, we do have to take into account the crime itself, and the denunciation it calls for. That is exactly what conditional sentencing does. I repeat—I have read all 94 pages of the Proulx decision. I have cited them and filed them in court at least 20 times since 1996, and I can say that—for once—the Proulx decision is clear. The Supreme Court ruled that conditional sentencing was indeed a sentence of imprisonment. I have had clients to whom I strongly recommended that they do not agree to a conditional sentence, because they would not be able to comply with the extremely stringent conditions that courts frequently impose with conditional sentencing.
That is why I am ready to explain to any victims' group to which my colleagues—Mr. Petit or other colleagues—would care to invite me, the position that I advocate and will continue to advocate. We will take steps to ensure that the Criminal Code is adapted to a variety of situations, and to ensure that repeat offenders do not end up on our streets day after day.
However, though there are indeed victims' associations to argue one side of the case—and I do respect victims' associations—there are also other means to make one's case in Parliament. Forgive me for calling to your attention something that seems quite obvious, but we are here to discuss the Criminal Code, and the Criminal Code deals with crimes. Unfortunately, crimes are committed by individuals, and that is why we are here—to ensure that the Criminal Code is brought into line to reflect 20th-century aspirations more effectively.
I will conclude by saying that I will vote for the amendment, because in my opinion it establishes satisfactory limits. We should bear in mind that we will guide the courts and explain to them that for certain crimes, such as the crimes provided for in Ms. Barnes' amendment, they will have to make limited use of conditional sentencing. Thus, we will do nothing to hinder the work of the sentencing judge or to influence the decision on what sentence to impose.
I hope that my colleagues will understand this argument and allow us to vote on this amendment as quickly as possible.
Thank you.