Justice Committee on Nov. 20th, 2006

[The Chair, Conservative, Art Hanger]

[Inaudible--Editor] ... The agenda, I believe, is before the committee members. Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms) and to make a consequential amendment to another Act is the topic of discussion.

The witnesses before us today are Ms. Kim Pate, the executive director of the Canadian Association of Elizabeth Fry Societies, and she has with her Debra Parkes. We also have, from the Royal Canadian Mounted Police, Mr. Michael Woods, director general of national criminal operations for community, contract, and aboriginal policing services.

Thank you for being with us today.

I will start with the Elizabeth Fry Societies, as it shows on our agenda first. I would ask them to put their presentation forward in approximately ten minutes, and then we'll go over to Mr. Woods to make his presentation.

[Kim Pate, Executive Director, Canadian Association of Elizabeth Fry Societies]

Thank you very much, Mr. Chair.

And thank you very much to the committee for inviting our organization to appear and to present testimony before this committee with respect to Bill C-10. I'm here, as you've indicated, representing the Canadian Association of Elizabeth Fry Societies. I'm joined by one of my board members, who is also the co-chair of our social action committee, Professor Debra Parkes. She's also a law professor at the University of Manitoba. So I'm very pleased that she was able to join us as well, and thank you very much for inviting her.

I will skip over who our organization is because it was just a few weeks ago I was here when we were speaking about Bill C-9. But suffice it to say that our organization works with both victimized and criminalized and imprisoned women within the criminal justice system. Our agencies, our 25 members across the country, provide services that range from working with those who have been victimized to those who have ended up in the prison system. It's in this context that we offer our testimony.

Our testimony primarily focuses around a couple of areas, as you'll see from our brief. I won't repeat everything that's in our brief. I'll merely summarize to say that we do have concerns about Bill C-10. Our main concerns have to do with the extent to which we see much of what is being presented as contrary to the principles of sentencing that exist.

[The Chair, Conservative, Art Hanger]

I'm sorry to interrupt, Ms. Pate. I believe there's some information just being handed out. Please continue.

[Kim Pate]

One of the main ones, in terms of the primary principles of sentencing, is proportionality. When we look at this bill, we see that this fundamental principle is not adhered to. In fact, we see it promoting something other than the least restrictive approaches to dealing with individuals who come before the system, with a particular focus I think on aboriginal people. We're seeing concerns in our organization about the increasing numbers of aboriginal people, particularly women, ending up in the system.

As I think you're aware, the same day we were presenting here on Bill C-9, October 17, the Correctional Investigator released information that had the shocking statistic of 1,024 aboriginal people per 100,000 being jailed in this country now. Considering the importance of adhering to existing sentencing principles that very much encourage looking at all of the circumstances of offences—the circumstances of the individuals accused as well as of those who are victimized—it's very important that we look at proportional sentences that can be adjusted, at situations where mitigating circumstances must be taken into account.

When we think about women in particular in relation to this bill and about some of the areas being introduced, particularly around constructive possession of weapons, we know the number of women who will be implicated as parties in these sorts of offences. We already know they're in the system now. This bill will likely increase the amount of time they will end up in prison because they are not willing or able, for all kinds of reasons, often having to do with histories of abuse at the hands of the men who are wielding the guns, for whom they may be hiding the guns, in vehicles or in homes that they also inhabit, and therefore they may risk other issues, in terms of their own safety, should they try to interrupt or interfere with that kind of constructive possession.... There are a number of examples we could use, but rather than dwell any further on those, we're both happy to discuss them more in the question period.

One of the things we see is that sentencing in the absence of such relevant facts is extremely problematic. This is exactly why the principles of proportionality, the provisions that were placed in the Criminal Code with respect to the need to focus on least restrictive interventions or least restrictive penalties, and the need to focus particular attention on issues for aboriginal people, will be interfered with by this bill.

We also see it as inconsistent, actually, with some of the positions taken by the government in other areas. For instance, the seeming allowance of the proliferation of guns that may be occasioned by the abandoning of a gun registry, yet the development of extensive additional penalties for prohibited weapons, does not seem consistent.

It is our respectful submission, therefore, that in the actions of this committee, the public would be best served by the withdrawal of this bill and not proceeding any further with mandatory minimum sentence provisions of this nature.

Thank you.

[Debra Parkes, Member, Board of Directors, Canadian Association of Elizabeth Fry Societies]

I'll just make a couple of more comments, adding to what Kim has said.

As we understand it, one of the key bases on which this legislation is being put forward is to act as a deterrent. I think it's very important to keep in mind that sentencing severity, that is, having a harsher sentence—having a four-year sentence rather than a two-year one or six years rather than four years—has been shown not to deter crime, or, rather, the null hypothesis is being accepted by social scientists. It's very hard as academics, or people very steeped in research, to prove a negative, but social scientists or academics are very much coming to a view that accepts the null hypothesis with respect to deterrence due to sentencing severity. The idea that people are deterred by having harsher sentences just simply isn't borne out by the evidence. So if the government wishes to proceed in this way, I think it's very important to be clear that it's not going to produce that particular result, or at least there simply isn't the evidence to support that argument, in our view.

If members of the committee are interested, I do have an article that I could make available to anyone. I don't know if you have it before you, or if you've had Professor Tony Doob appear before you, but it's an article he's written with Cheryl Webster, called “Sentence Severity and Crime: Accepting the Null Hypothesis”. It is a meta-study of numerous studies examining whether or not deterrence can be proven.

So this is something we're quite concerned about. If it is being done in the name of deterrence, we ought to be asking some very serious questions about that. There's a burden of proof there that I think hasn't been displayed as to whether this will actually deter people.

Because of that, I think we're seeing a moving away from this approach by other jurisdictions that have taken this approach in a very concerted effort. A number of American states, as well as jurisdictions in Australia, are starting to move away from imposing mandatory minimum sentences, precisely because they come at great human and fiscal cost, as well as not delivering on the promise of deterrence.

So this is something that we think is important to keep in mind when considering this bill.

Thank you for your time.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Parkes. I know the debate is certainly going to be in reference to taking people out of circulation, the criminal element in particular, and deterrence is the issue that will probably come to the forefront here, several times, I would suggest, in this debate.

Mr. Woods, please present.

[C/Supt Michael Woods, Director General, National Criminal Operations, Community, Contract and Aboriginal Policing Services, Royal Canadian Mounted Police]

Thank you, Mr. Chair, ladies and gentlemen.

I'd like to thank you for the opportunity to provide this perspective of the RCMP, the Royal Canadian Mounted Police, on Bill C-10. We recognize that achieving public safety, or a safe society, requires commitment and a continuum of action from all stakeholders. The criminal justice system, including enforcement and sentencing provisions for legislation, is one tool that can assist in achieving this.

The RCMP Public Safety and Crime Reduction Strategy is premised on a few guiding principles, specifically targeting crime, location and offender; simplicity of design and execution; coordination of partners and process; a continuum of action on prevention, enforcement and rehabilitation.

This strategic approach is about preventing crime in the first place, intervening early where people are at risk, taking rapid enforcement action and providing support and rehabilitation and resettlement services to victims and offenders.

In 2006-07 the RCMP's planning process identified the need to focus on the impact of guns, gangs, and drugs. To that end, RCMP units across Canada will be aligning initiatives to combat this menace. In doing so, we draw on research done on the impact of organized crime in remote and rural communities, the growth of youth gangs, and the nexus with vulnerable populations such as our aboriginal communities. We are working with our key partners and stakeholders at the community, provincial, territorial, and federal levels to operationalize strategies that will increase public safety through the reduction of crime.

The major impact of this legislative reform will be at the provincial and territorial level in the administration of justice. If there are more trials, police agencies across Canada will find their resources heavily taxed by the workload this will require upstream.

I am ready to answer your questions.

I have prepared a few other notes. If you would permit me to continue, I will read them.

[The Chair, Conservative, Art Hanger]

Please do.

[C/Supt Michael Woods]

Police in general believe that harsher penalties and mandatory minimum sentences will both deter and incapacitate the offender and thus are valuable tools in the fight against crime. Unfortunately, it may not be that straightforward. While there is some evidence that mandatory minimum sentences will deter criminals, the prolific offender--and those are the 2% or 3% who commit 80% to 85% of the crime--is less likely to be deterred. Members of this group generally are not calculators who weigh the cost and benefits of their crime. This is from Thomas Gabor and Nicole Crutcher from the University of Ottawa.

It's more obvious that when an offender is incarcerated, he's incapacitated. The threat to the community is eliminated through his lack of access to it, but he may be a greater threat upon his release. Prison allows him to learn his craft better and provides him the opportunity to increase his network. Some--gang members in particular--may see prison as a rite of passage. Of course, for some offenders who are beyond redemption, prison may be the only way to protect our communities.

Mandatory minimum sentences have an impact at the time an offender first comes into contact with the law. A longer sentence can take away the incentive to plead guilty, thus resulting in more trials. This would of course add pressure to police resources.

At first contact with police, an offender may respond more violently if he knows he's going to jail for a longer period of time. On the other hand, a stiffer penalty may offer the offender sufficient incentive to provide information to police about other criminal activity in the community. It may also provide the prosecutor greater sway in plea negotiations for a different charge.

As you can see, it's not a simple black or white situation.

As I noted earlier, the RCMP is piloting a crime reduction strategy in British Columbia, which is beginning to show results. It combines hard-hitting enforcement with a holistic approach to identifying root causes of crime. The key here is a strong commitment from key stakeholders in the community, including the departments of public safety, health, social services and housing, addiction services, probation, prosecutors, Correctional Service of Canada, the department of education, and family services--there is a whole list.

Prime Minister Harper said:

It is equally important that we prevent criminal behaviour before it has a chance to take root. To this end, the Government will work with the provinces and territories to help communities provide hope and opportunity for our youth, and end the cycle of violence that can lead to broken communities and broken lives.

In fact, I've already seen evidence of support from the federal government in some of these programs, and it's beginning to work.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you all.

I will now turn to questions.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

First, to the RCMP, are you representing the RCMP totally or just the public safety crime reduction strategy area?

[C/Supt Michael Woods]

I'm representing the RCMP and I'm presenting the crime reduction strategy as an option.

[Sue Barnes, Liberal, London West, ON]

Okay. In your mind, is this a good option?

[C/Supt Michael Woods]

It absolutely is a good option. It's beginning to show results.

[Sue Barnes, Liberal, London West, ON]

If you had more money in that option, do you think that would be beneficial to the safety of Canadians?

[C/Supt Michael Woods]

I think it would be, based on the evidence we've seen thus far in British Columbia.

[Sue Barnes, Liberal, London West, ON]

Okay. Twice you have talked about the workload demands to support increased trials, which will impact on the resourcing levels of police agencies across Canada. Both times you made that as a factual statement. Do you stick by that statement, and why would you see that?

[C/Supt Michael Woods]

It's anecdotal. We don't have specific measurements. As was referred to earlier, it's hard to quantify those kinds of issues. But anecdotally and in speaking with others, and in particular in the instance where we saw an increase in penalties for impaired driving, there were additional or more trials than you normally would expect, in our experience.

So yes, there would be more trials if the consequences were more severe.

[Sue Barnes, Liberal, London West, ON]

Okay. In fact, I very strongly agree with you that the resources of not only the police but all the court systems will be taxed if we go forward with legislation like this.

Ms. Parkes, from an evidentiary point of view, at this committee, I think most of us like to do evidence-based work. Can you expand not only on Professor Doob's material but on other pieces of existing material that say exactly the same things that Mr. Woods has been talking about?

There has been hard evidence scientifically posed that doesn't rely on the anecdote but has actually been proven. Can you comment on that, Kim or Debra?

[Debra Parkes]

I think I'll let Kim go first.

[Kim Pate]

In addition to the piece that Tom Gabor and Nicole Crutcher did, which our colleague referred to, there's a whole colloquium that our organization co-sponsored with the Osgoode Hall Law School.

There's an entire package of research-based and evidence-based material that talks about the human cost, the fiscal cost, the pressure to go to trial, the pressure to have more people inside, all of the pressures we've all spoken about today, and the very devastating long-term impact on our entire communities with that type of approach in continuing down that road.

[Sue Barnes, Liberal, London West, ON]

The other thing I wanted to ask you, Ms. Pate, is on the sentencing principles that are mainly found in section 718 of the code. You often hear the minister and other people talk about the deterrence factor or one or two of the factors, but there are in fact at least six factors. Could you flesh out what they are and why they were included back when we did the revision of that part of the code in around 1995 or so?

Ms. Parkes, perhaps you're better equipped to answer.

[Debra Parkes]

Yes, I can briefly speak to that.

When the sentencing principles were introduced in 1995, at that point, there were a lot of common-law decisions that these principles had relied on, but they had never been codified in the legislation. It was a result of much research and of the Canadian Sentencing Commission recommendations.

The primary, overarching purpose of sentencing is declared to be proportionality. There has to be a just and proportionate sentence. It means taking into account all aggravating factors and mitigating factors.

There are other principles. There's the promotion of deterrence, incapacitation, the protection of society, and rehabilitation. There's the principle that we would use the least restrictive measures consistent with public safety and, specifically, that imprisonment would be a last resort. This was after much study and much evidence when looking at what was working and what was not working in the criminal justice system.

Our co-presenter commented about crime prevention strategies and other strategies that we as a society need to be doing along with the sentencing process.

Our main concern is specifically around proportionality and that we're very much moving away from that. When you say there's a mandatory sentence, at least for the sentences in which there are significant mitigating factors, it's impossible to have a proportionate sentence in every case, unless you accept the proposition that it's only ever going to be proportionate to have at least five to six years in jail, or whatever it is, no matter what the circumstances are. It's a major concern we have.

Then, of course, with the great human and fiscal costs of imprisonment, we're moving away from the principle of using imprisonment as a last resort.

[Sue Barnes, Liberal, London West, ON]

Okay. Mr. Woods, I have a short question for you. Can you think of any policing reason for why a sentence would be different for a long arm as opposed to a short handgun?

[C/Supt Michael Woods]

Well, in terms of sentencing, there is a greater danger with handguns in that they're more easily concealed and can be more readily used in the commission of many of the crimes that we see, particularly armed robberies. Handguns would be more serious.

In fact, the handgun is a restricted weapon, and of course a long gun isn't restricted.