Justice Committee on Nov. 23rd, 2006

[Patrick Brown, Conservative, Barrie, ON]

Okay. In that case, to remain logically consistent, would it be the position of the criminal lawyers that the existing maximums in the code are unfair for inhibiting a judge's discretion?

[Andy Rady]

That's a good question. I could say this to you. With the exception...actually it's a minimum with murder. Many of the maximums have never been approached because there haven't been many cases in which that has occurred. The discretion probably hasn't been fettered, just by the way the cases have come up over time. But there have been ways around that, believe it or not, with consecutive sentences. They do get imposed. If one has multiple offences, that's how judges can sometimes get past that maximum if they see fit in that case. But the maximums now are generally set so high that we don't really come close to them, with some exceptions.

[Patrick Brown, Conservative, Barrie, ON]

If I could give an example, section 86 of the code, which deals with careless use or improper storage of a firearm, allows for a maximum of two years for the first offence. On that obviously high figure of two years, would it be the position of your organization that it would be inappropriate to inhibit the judge's discretion? Do you suggest it's wrong to inhibit their discretion all at the lower end, or should it be both?

[Andy Rady]

Again, I repeat my comment. Careless storage of a firearm probably takes in someone who didn't put their trigger lock on right, and they might be a legitimate hunter living in rural Saskatchewan. That's usually the kind of case involved for careless storage. Those aren't people who tend to be the “criminal types”, so it doesn't usually get to that point in that particular offence. The other alternative would be to allow life sentences for everything, but that's unrealistic as well.

One of the reasons why we have maximums at one end is that, as you know, by the charter, if the maximum punishment is less than five years, we don't have a right to a jury trial. A number of years ago, a number of the maximum sentences were decreased, and that has decreased the number of jury trials. The suggestion has been that this was done in order to take some burden off our courts in terms of the length of proceedings, because so many of the proceedings were going into the provincial courts in any event. We have far fewer jury trials now as a result of this lowering of the maximum punishment for so many offences. So there are different reasons for it.

[Patrick Brown, Conservative, Barrie, ON]

How about the existing minimum penalties within the Criminal Code? Do either of your organizations support the existing minimum times? I'm trying to get an idea of what type of balance you believe is appropriate. Are no minimum penalties appropriate, or are the existing ones appropriate?

[William Trudell]

In our exception provision that we suggested to you, we left treason and murder as the only ones. What we did was go out on a limb and say that you don't need minimum sentences. You can have a judge decide in the particular circumstances whether or not the minimum sentence should be imposed. If you reject that because you're not looking at the reconstruction of the Criminal Code and refer to firearms, that's fine. But we would respectfully submit to you that we don't know of the evidence that says minimum sentences solve the issue. Education on culture might solve the issues. We've put that in there.

Quite frankly, to be absolutely honest with you, I would rather say to a court that this offence and this offender are not the same as that offence and that offender, because the circumstances are different. In my respectful submission, judges need to be able to judge. They need to be able to make the decision. We don't think minimum sentences that take away the discretion of the judges solve the problems.

I really believe we have to recognize across the country that a judge has to sentence someone. My respectful submission to you is that the judges reflect the climate we live in. The periods of incarceration are going up for serious offences. The evidence that they aren't, I would respectfully submit, is anecdotal.

And just to answer your question about higher provisions or higher ceilings, what about corrections? Where is the money going to come from for building the jails? I'm sure you're going to hear from the people at corrections about the domino impact of filling up jails, if that's what going to happen. The jails are overstretched. I understand that the minister said we're going to need millions of dollars to build more jails, but that's just not addressing the issue. You can build the structures, but then you have to man them and you have to put the programs in, because in this country, we know we believe that people will eventually be released from jail.

[Patrick Brown, Conservative, Barrie, ON]

I can appreciate that. I guess where I find a bit of frustration with this advice we're getting is that you started your comments by saying that you don't want to inhibit a judge's discretion--that was the first thing you stated--but at the same time, you would not support inhibiting their discretion at the top end. How do you explain those opposite points of view?

[William Trudell]

No, it's not an opposite point of view. If you feel that the sentence for careless storage, the ceiling for careless storage—and careless storage—

[Patrick Brown, Conservative, Barrie, ON]

How about life? How about 25 years for Paul Bernardo? Did we inhibit a judge's discretion by not saying he could have done more? Because we can't say that we're against inhibiting judge's discretion on the one hand and say we're for it on the top end. It's contradictory.

[William Trudell]

That's not what I was saying.

[Patrick Brown, Conservative, Barrie, ON]

Well, then explain yourself.

[The Chair, Conservative, Art Hanger]

Let Mr. Trudell speak, Mr. Brown.

[William Trudell]

I believe, as a citizen and as a defence counsel, that the last thing we should do is send someone to jail, but if that person is a danger to society, they should go to jail. Then you decide how long they should go to jail. And if they are a repeat offender, if they are a dangerous offender, our Criminal Code is equipped to keep them in jail for a long time. Judges can make recommendations to parole. It's there.

So if you want to raise the ceiling for, say, careless storage, to 10 years, if someone gets charged with careless storage, it's simply what Mr. Rady talked about. It's not that he's part of organized crime; he didn't store his gun properly. But if he is part of something else, he will not just be charged with careless storage, he'll be charged with weapons dangerous, he'll be charged with other offences. So the facts will determine the seriousness of the offence and the penalty range.

But if you think that some provisions of the Criminal Code don't have high enough ceilings,and you think the way to solve the problem is to raise the ceilings, fine. You're the legislator. But allow the judge, who will have all the circumstances, to make the decision about what's fair. Crown counsel can make their pitch, and if someone decides that that wasn't right, they can appeal it.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Trudell and Mr. Brown.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you for being here.

I'm speaking mostly to Mr. Rady, and anybody else can join in.

Right off the bat, I want to remind Mr. Rady that it's true that the extra police in New York created quite a reduction in crime, but behind that was the broken windows theory. There was a decision made by the authorities and legislators that if you break a window, you go to jail; if you put graffiti on the wall, you'll be picked up and go to jail. That required more policing, the two worked pretty well hand-in-hand, and it's a very safe place to be. We forget about the fact that there was a decision made in regard to what to do.

Regarding root causes, I'll tell you that we've had lots of discussions and we hear an awful lot about this. When I was first elected in 1993, I sat down with Allan Rock, and we hit it off pretty good for quite a while. We used to talk a lot about root causes.

Yes, I agree that the root causes need to be addressed. We used to make our lists. I was sitting here today after you made your presentation about root causes, and you talked about poverty. Then I remembered my grandfather telling me that the Roaring Twenties was an awful era for crime, and yet the Dirty Thirties really tamed down. If it was poverty, there was a whole lot less crime than during the Roaring Twenties. Whether that has any bearing on the conversation, I don't know.

Then we talked about Hollywood and violence in film and the WWF—my God, have you watched that ultimate fighting on TV lately? It's violent. In all of these things, maybe there's a cause.

We know that drugs exist. I've been told over and over again that the population in the penitentiaries would go way down had it not been for alcohol. Yet we've had decisions that our bars should be open seven days a week instead of only six, and that they should stay open until three or four in the morning instead of closing at eleven or twelve in the evening. All of these decisions are root causes.

Child pornography is rampant out there. It poisons a sick brain even further. It causes them to act out their fantasies, and drastic things happen. It's a root cause.

Yet every time you try to do something about it, you get different decisions in courts that affect that effort, such as the John Sharpe decision. It had quite an impact, and I honestly believe that we tried hard with the Liberals to do something about child pornography. That decision made it practically impossible to move on this.

Can you imagine what you are going to do about alcohol? Bring back prohibition? That doesn't work, we've been told one hundred million times. Always another root cause that's hard to deal with.

When you go through all the root causes...I can't for the life of me figure out one cause that justifies any human being picking up a gun to endanger, threaten, or hurt the life of a citizen in this country. I cannot find one root cause. Yet we put an emphasis on how we have to do deal with root causes.

Mr. Trudell mentioned that things are decided for political reasons, and I would suggest a lot of these are. All of us stood on the platform in January and we said we've got to do something about crime and these guns; we have to do this, and we're going to do so. Lo and behold, we've been elected, and we're here now trying to do something about it. Because I can't find any root or justified cause to pick up a gun and hurt people, we have to create some legislation to deal with those who choose to do so.

Thus comes Bill C-10—I have not heard any other solution that makes any more sense to me—because now we have legislation dealing with what I know is a root cause, which is the criminal. Lo and behold, criminals are really a big part of the root cause of crime.

Let's deal with them, which we have to do as legislators.

But to talk about it in terms of, “We'll have to deal with root causes”, my goodness, I could give you a whole list. We tried to do that. It doesn't work. We've tried to protect the victims when it comes to pornography, when it comes to the rights of expression, and when it comes to the freedom of being able to run a bar and put on TV what you want to and listen to hard rock music whenever you want. We know that's been a cause.

I think we're really barking up the wrong tree about that, because I just can't find anything that justifies picking up a gun and hurting people.

[Andy Rady]

Neither can I, and neither can most right thinking people in this country. The fact is, some people do that, and the question is, why do they do that? They are not doing it because the Criminal Code is too soft or we're not punishing them enough. Maybe we don't even know the answers at first blush.

It is not a question that alcohol is the root cause. Why is the person becoming an alcoholic? Why is the person becoming a drug user? These are deep, difficult questions that cannot be answered easily or quickly. All I am saying is that if we really want to get to why this kind of crime is occurring, we have to think about that.

You lived, obviously, in this country 30 years ago when we didn't have these problems. We have them now. What has changed? Have we looked at what has changed? Has our law gotten softer? The Criminal Code has been the same for the last 30 years. It's actually gotten tougher in a number of provisions, but what has changed in our society?

One of the criticisms we hear about is that young people don't have the same manners any more. They don't say “excuse me”. They bump into you. They use foul language in the streets. Why is that? What is it in our teaching of how we're supposed to behave in our society that has changed? Why are some of these behaviours acceptable? All I am saying is the answer isn't simply in having mandatory minimum punishment and that's going to solve the issue. It is not. That is all I'm saying. It's a deeper-rooted issue.

[Myron Thompson, Conservative, Wild Rose, AB]

But of course all I'm saying is we have to deal with this gun problem. It's a serious problem. We have to deal with it and we have to deal with it fairly quickly, and that's the word we gave to the public who gave us the mandate to do something about it. That's our mission. That's what we have to do.

We could talk all year. I've been around this country and south of the border for 70 years, and boy, I've seen a lot of changes, but I think it's time to quit making excuses versus getting to the root causes. I think we tend to make excuses too often.

We've lowered the legal age of drinking. Who made that decision? You talked about a few years ago when it was 21. There were a lot fewer problems when it was 21, but somebody made the decision to lower it to 18.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you, and for the record, the example I used, Mr. Rady, with paragraph 341(1)(a), that it would have been just as valid had it been a loaded handgun in those sets of offences, may be an education for those who might have been misled into thinking we were only talking about unloaded. I just showed unloaded to show the discrepancy in the legislation, and maybe that's a result of non-consultation and hastily drafted legislation, because I just couldn't believe it.

When I raised this in the spring in the first debate, there were Conservatives sitting in the House who were yelling at me that it wasn't true. But it is true, and it's there and it's a problem, one of the many problems in this bill.

Mr. Trudell, you've given us a last-ditch potential amendment there. First of all, I thank you for your efforts and your organization. The only thing I would caution all of us is that when a bill comes to us after second reading, like this, where it's been agreed to in principle by the House, it's often very difficult to go into another section or like principle and get that amendment through the legal counsel. But just for interest and for potential situations, I will put it through and see if that does meet the requirements, though I am concerned that it may not. Having said that, I certainly very much appreciate the thought and consideration that went into doing it.

I do want to talk about Askov. I asked the Attorney General here. On the Askov situation, tie that into a situation of when you get an increasing system of escalating sanctions, one, two, three. When does the behaviour of a defence attorney or a crown attorney change with respect to representation for the accused when you get that type of escalation in sentencing principles? Do any of you have information on that, and how will it impact, from an Askov perception, in your opinion...? You're the closest in the courtroom.

[William Trudell]

Let me respond by saying this. Let's just say, for example, that you, as a member of this committee, felt that a bill was wrong; some people suggested you were going to take too much time in fighting this bill, but as a principle, you passionately believed the bill was wrong. You would take the necessary time to defend it.

If we represent accused persons who are facing a mandatory minimum, and we passionately believe that the sentence is wrong, then it is our obligation, as it would be yours, to fight it, and to represent them as best we can. It maybe means more time, but that's our job. That's what you want us to do.

If there are provisions that are not subjectively reflective and don't take into consideration all the circumstances of an offender and an offence, then it's our job to make sure they are contested, so at the end of the day the judges can make the decision after receiving all the help they need. That means more time, more court time, more work, less pleas, and a strain on the system.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes.

I'd like to thank the witnesses for appearing.

I know this has been a rather interesting day for our committee. We've heard a variety of comments and commentary.

For the assurance of Mr. Trudel, you have advised us that we have a very important job to do here. We believe that indeed we do, and we take it seriously.

I think everyone in this room is going to aim for the greater good and set aside certain positions that we might have personally. I believe that's even what this bill is aimed at. It may not be perfect; no one is saying it is. It may be subject to some alteration. It may not necessarily be favourable to each and every person in this room, but we will work at it--guaranteed.

We appreciate your advice, Mr. Trudel. You did inform us at the outset that we should be serious about what we're doing and contemplate everything. We are in fact doing that very thing.

[William Trudell]

We are grateful for being invited. When we are invited, we always come. We always try to assist.

We have a great deal of respect for the work you do. We wouldn't want to be in your position, I don't think.

[The Chair, Conservative, Art Hanger]

Thank you very much for appearing. We appreciate it.

The meeting is suspended for approximately two minutes.

Everyone can grab a quick coffee.

[The Chair, Conservative, Art Hanger]

Colleagues, I'd like to call the meeting to order.

This afternoon I'd like to welcome Ms. Fiona Sampson, director of litigation for the Women's Legal Education and Action Fund; and Mr. George Biggar, vice-president, policy, planning, and external relations, Legal Aid Ontario. Thank you for being with us this afternoon.

Missing, of course, right at the moment, and stuck in traffic, is Mr. Jonathan Rudin, Aboriginal Legal Services of Toronto. We will include him when he steps in the door.

In any event, we will begin our presentations with either Ms. Sampson or Mr. Biggar. Who would like to begin?

Mr. Biggar.

[George Biggar, Vice-President, Policy, Planning and External Relations, Legal Aid Ontario]

I'm happy to defer to Ms. Sampson.