Justice Committee on Nov. 23rd, 2006

[Rob Moore, Conservative, Fundy Royal, NB]

Okay, thank you. Is it from the Department of Justice or the Library of Parliament?

[The Chair, Conservative, Art Hanger]

It's the library commentary.

[Margaret Beare]

I have an extra copy here if somebody wants it.

[The Chair, Conservative, Art Hanger]

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

I hope the point of order doesn't come off my time.

[The Chair, Conservative, Art Hanger]

Don't worry about that, Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Are you surprised then that without the consultation on two of these bills, when I asked the minister, and the justice department officials were here, they didn't even have recommendations from the justice department officials to proceed with bills like this?

[William Trudell]

Let me just speak to my experience. I've been practising for about 35 years now. Formerly I was vice-president of the Criminal Lawyers' Association. I've been chair of the Canadian Council of Criminal Defence Lawyers now for more than ten years--my wife says too long. There were major consultations on bills, and they gathered everyone in the room, not just defence lawyers but crown counsel, victims organizations, and academics. That did not happen here. If you compared one set of legislation that had that with another set of legislation that didn't have that, it speaks for itself.

We are disappointed. Maybe there's a political agenda, but that's not our concern. You're being asked to make the decision.

[Larry Bagnell, Liberal, Yukon, YT]

Okay. I just want to get at some other points, but that is a very serious charge in process.

The point you made about aboriginal people in Yellowknife is tremendous. I want to reiterate that it's even worse in Nunavut, where people are further detached and further detached language-wise.

In that respect, would this bill increase the already disproportionate number of aboriginal people in prisons, and would it be a violation of the aboriginal principles of sentencing in clauses 17 and 18, looking at aboriginal situations?

[William Trudell]

We believe that some of the legislation we've seen is a direct or indirect attack on the principles of sentence. Our exception provision reflects the spirit of that, because it talks about the particular needs of the community.

Just to respond specifically on Nunavut, Sue Cooper is our representative in Nunavut, and she has passed on the concerns about what this will do to the aboriginal community.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Petit.

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

My question is for Mr. Trudell and Mr. Rady, or for Ms. Beare. I will begin by making a brief preamble to help you understand where I am coming from.

First, you compared Ontario's legal aid system to a Cadillac, and I can confirm this. It's absolutely true, if I compare Ontario with the situation I am familiar with in Quebec. That's a problem. In Quebec, we have fixed mandates, whereas here, lawyers earn an hourly rate in what is called a certificate system. Further, more guilty pleas are entered in Quebec. There are fewer here in Ontario because lawyers are paid differently. Perhaps that explains the deficit. In any case, that's their problem.

Ms. Beare, I would like to hear you address an issue which intrigues me. You completely reject Bill C-10. However, I want to explain something to you. As is the case with Mr. Trudell, I have been working in the field for 33 years. In fact, I am still a lawyer, and I still have a lawyer's office. I therefore still work in this profession.

Just imagine: some of our citizens, after having killed a moose outside of the official hunting season, and after receiving a $1,500 fine which they are unable to pay, might spend up to three months in jail. Furthermore, if they do not pay their federal income taxes, and the fine becomes due, since they are being prosecuted and cannot afford to pay the fine, they are jailed because they have not paid their taxes.

But today, the only thing we are trying to achieve is to protect individuals by simply amending the Criminal Code. So I would like to know what bothers you so much to the point where you reject the bill.

Here is my second question. We also represent many women who have been beaten by their spouses. Are we to say to women that we try to adopt a bill to protect them or, at least, to mitigate the problem? If you tell me today that you will reject this bill, what will I say to women's groups which I met throughout the summer and who told me that we must become more forceful if we are to address this problem, which exists in Quebec's system?

I would like to hear you respond to these two questions.

[Margaret Beare]

There are two parts. First of all, I've never expressed a problem and I don't particularly have a problem with the ceiling of these sentences. Also, in terms of getting tougher, the kinds of sentences a judge has been giving and can continue to give can in fact be significant. My objection to the legislation is the mandatory minimum, which I find problematic.

I find it a problem for you to bring in the issue of spousal assault. Clearly that is serious, and the government has responded over the years with zero tolerance, and serious sentences have been given to individuals who inflict violence on their spouses. I see that to be quite a separate issue from this debate over firearms.

[William Trudell]

Let me respond on behalf of the CCCDL. The reason we reject the bill outright as our opening premise is that the bill optically seems to be addressing a problem, but in reality it is not.

The most troubling part of this bill is this. We have judges in this country who are working hard. We ask them to use their discretion as the final arbiter in deciding whether someone should go to jail or not. If a judge decides someone should go to jail for five years or ten years, the judge can send them there, but if the judge decides that the disruption to that person and the community merits some other disposition, we have to trust them to impose that sentence, and if it's not right, it can be appealed.

We reject this bill because, with great respect to something Mr. Moore said, we don't live in a catch and release society. This is anecdotal. The chief can come in this morning and talk about anecdotal cases. When you want to change something, you use a catalyst, a bad case. But that's not how we change the law. That's why we reject this, because it hasn't been studied properly. It's being used.

Lastly, in relation to your question, sir, about what you say to these victims of violence, we deal with this every day; it breaks our heart, whether we're defence counsel or whatever we are. But this is not going to change domestic violence, and I'm sure you'll probably hear, before this is over, about the number of women who may be caught by this type of legislation.

If this were going to be the end of domestic violence, if we could magically find it, well, yes. But that's not what this bill is going to do. You're going to say to these people—what? We have a bill, and if we introduce this bill and get mandatory minimums, then we're going to solve domestic violence?

With great respect, you can't say that, and you would be letting them down if you did.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit.

Mr. Lee.

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

Thank you.

Just as a comment, I've been struck by the number of times individuals—witnesses, the Minister of Justice, others around the table—have used judicial interim release scenarios following a serious crime as a reason why we should have mandatory minimums. It doesn't compute, and it came up just earlier.

I'm going to leave three questions—no more rhetoric, I promise.

We're forced to look at so many of these things through a rear-view mirror. It's tougher to look ahead. I'll ask this to Mr. Trudell. Just as there are, from time to time, exceptional cases where a sentence is either too light or too long, as seen through the rear-view mirror, would this bill, in your view, create similar types of flotsam and jetsam and disproportionate sentencing? Once we have a chance to look through the rear-view mirror and see the application of a mandatory minimum, how likely is it, do you think, that we would see a whole lot more disproportionate inappropriate sentencing as a result of the application of the mandatory minimums?

Secondly, and I'll ask this to Mr. Rady, do you think a prosecutor would have the same view as you, a defence counsel? Do you think, if we had a prosecutor here as a witness, the prosecutors would have the same view as the Ontario attorney general or the chief of police? Or just what do you think?

And thirdly, to Mr. Trudell or Ms. Beare, do you think the seven- and ten-year minimums that are imported by this new legislation might encounter heavy water in terms of a charter challenge, through the rear-view mirror of previous charter challenges and the Supreme Court decisions?

[William Trudell]

In response to your first question, Mr. Lee, I can't tell you, but I am so afraid that that's exactly what we will see. We will see aboriginals and we will see judges struggling to try to do something other than what is commanded of them. We will see aboriginals in custody and the disruption of their communities. We will see, unfortunately, more persons from lower socio-economic classes, persons of colour, persons who come from different cultures, caught, especially when we see the increase in the unrepresented accused.

I believe when we come back here, another year from now or another two years from now or another three years from now, we'll be saying it didn't change anything but too many people suffered as a result of the lack of care. I'm very, very concerned about it, not in Toronto so much, but in some of the smaller communities throughout the country.

That's the information I'm getting from our representatives right across the country.

[Andy Rady]

With respect to the prosecutors, it is difficult to say. I would suggest that there are probably many prosecutors who would agree with the bill. Similarly, I would say there are many prosecutors who would disagree with the bill. It's not an uncommon incident, where we have already some of the mandatory minimums and it's an exceptional case and the prosecutor will say “Look, I agree that this sentence does not mandate a year because of the background circumstances as to why this person may have had this gun, but my hands are tied”, and they have to get the year. Their hands are tied as well because even though they can proceed in some of these offences either by summary procedure or by indictment, they're directed to go by indictment.

Frankly, if the attorney general has now spoken today and indicated his position, I would think that from the prosecutors--they're not defence lawyers, who really don't answer to anyone--if the big boss is saying he's in favour of it, you are going to have to be careful to see what they're going to say on the record.

[Margaret Beare]

I'll let them respond in terms of the charter challenge, but I guess I want to say I don't think we need to go to Nunavut to see again the disproportionality that will take place. I don't think we can deny racial profiling and in order to be guilty of a second offence you have to be.... Having been convicted of the first one, who gets stopped? Who gets searched? Who gets actually charged? I think again there's enough evidence that in downtown Toronto that is not an equally distributed characteristic.

[William Trudell]

Mr. Lee, can I only say that we had a seven-year minimum sentence for importing a long time ago? We realized it didn't work. In the 1950s there was a minimum sentence for car theft. That was the major charge that was going to upset the socio-economic balance in our country; take an auto without consent kind of found its way through...it was still theft but there wasn't any minimum.

But quite frankly, something has happened in previous consultations, and I can tell you without mentioning specifics that there was not a minister of justice who said in a meeting, “I'm sorry, I'm hearing one story from the crowns, I'm hearing one story from the defence, I'm hearing another story from this person. What I'm going to do is put you all in the same room and then I can hear it all.”

Take away the anecdotal stories, so when you get crown counsel in a room, not on the record, and when they are as concerned as all of us about how the criminal justice system works, because they do it every day, you will get answers that you would not get on the record. That's the type of consultation that needs to take place.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell and Mr. Lee.

Now, Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you.

I have three questions to try to fit into my five minutes, so if I can get you to be concise, I can get a broad spectrum of answers.

One of the criticisms I've heard of this legislation is that it removes discretion from judges. Is that a fair assessment, from a criminal lawyer's perspective?

[Andy Rady]

Yes.

[Patrick Brown, Conservative, Barrie, ON]

Does that mean we should try to avoid in our legislation inhibiting a judge's independent discretion?

[Andy Rady]

Generally speaking, yes.