Justice Committee on Nov. 23rd, 2006

[Larry Bagnell, Liberal, Yukon, YT]

Would another exacerbating effect on them be the fact that it would be such a dislocation? Some of the northern communities are hundreds of miles away and have no support system. They're not used to being cramped up. There's no social support. It's totally foreign to them. Wouldn't that, once again, give them an even worse chance for rehabilitation?

[Jonathan Rudin]

That makes it much more difficult, and of course, as you're aware, the correctional ombudsman reported just last month as well on discrimination against aboriginal people generally within the prison system.

[Larry Bagnell, Liberal, Yukon, YT]

As for the principles of sentencing, as you know, there's a clause for aboriginal people that takes that into account. Do you think this is an affront to that philosophy and that a legal battle could perhaps be undertaken? When you remove the discretion to make that choice, to look at the circumstances of aboriginal people, then you're going against that clause, that sensitivity we put in the Criminal Code to look at the circumstances of aboriginal people.

[Jonathan Rudin]

That certainly could arise. Mr. Hangar asked me a similar question last time. The situation now is that paragraph 718(2)(e) is simply part of the overall provisions of sentencing, so mandatory sentences override the opportunity of a judge to do anything other than sentence the person for a period of time. So with a mandatory minimum, all the judge can do is say that if you're an aboriginal offender, maybe you'll get four years and not six, but they can't move outside of the minimum that's mandated by the Criminal Code.

It is possible that we might launch a challenge to that, but currently the way the judges interpret this is that they have no discretion to go below the mandatory minimums. That's exactly one of the reasons why we're urging an exemption in the legislation to allow for consideration in exceptional circumstances that would allow for those sorts of issues to be addressed by the judge.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I'm going to speak in French.

Mr. Rudin, a similar amendment was proposed to us a little earlier by the Canadian Council of Criminal Defence Lawyers. You said that the native population, which represents 3 % of the Canadian population, represents 22 % of prison inmates.

I read the Gladue ruling for a course I took on sentencing, and I am in complete agreement with you. However, your brief is rather vague on the issue. It says that in certain circumstances, judges should have the choice not to impose minimum sentences. Have you thought of a more specific wording? Are you referring to cases which strictly involve members of first nations?

I would like to better understand your position.

[Jonathan Rudin]

No, we're not suggesting that it specifically deal only with aboriginal people. That could be one of the exceptional circumstances, but there may be other exceptional circumstances. We would see the amendment written more broadly to allow any exceptional circumstances for any offender to be considered.

[Réal Ménard, Bloc, Hochelaga, QC]

Of course, if minimum mandatory sentences were not consistently applied, people would say that they are not true mandatory minimum sentences. Whatever the case may be, few studies point to any deterrent effect these types of sentences might have. So deterrence is not really an argument which would convince us of the effectiveness of mandatory minimum sentences.

My question is for Mr. Bigger from Legal Aid Ontario. So what you are basically saying is that mandatory minimum sentences might lead to more trials and that it might affect the provinces, yours in particular, which is, incidentally, the wealthiest in Canada, at least in terms of per capita revenue.

What would you like to say to the federal government as far as the financial implications of Bill C-10 are concerned, if it was adopted? Of course, that's not a given. The more testimonies we hear, the more we should worry. Minority governments have many virtues, including the virtue of allowing the opposition to work harder to improve the government. It goes without saying that for us, the work is never ending, and we end our days completely exhausted because the task is so huge.

So what type of financial support should the federal government provide if Bill C-10 was passed?

[George Biggar]

As I said at the outset, every change to the justice system is an increased pressure on all of the system, and that includes legal aid. Some of these changes we can estimate better than others. For example, we've done estimates on the likely cost of legal aid due to increasing the number of police officers on the street by 1,000, as the government has done. We did an estimate on the cost effects of Bill C-9, the bill that deals with alternatives to incarceration, and we have done the estimate I presented this afternoon in relation to the cost of Bill C-10. What we in general are seeking from the federal government, since criminal law is a federal responsibility and that is in fact recognized by the federal government through the federal-provincial contribution agreement, is that the government, through the budget process, increase the funding available to the legal aid plans across the country in order that they may effectively respond to the increased—

[Réal Ménard, Bloc, Hochelaga, QC]

Don't you have a specific amount in mind? Do you have a ball park figure?

[George Biggar]

No, today I did not bring a specific number. No, I don't have a specific number today.

[Réal Ménard, Bloc, Hochelaga, QC]

That all right sir.

Do I have time to ask Ms. Sampson a final question?

[The Chair, Conservative, Art Hanger]

I'm sorry?

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have any time to ask another question?

[The Chair, Conservative, Art Hanger]

You do, indeed.

[Réal Ménard, Bloc, Hochelaga, QC]

Ms. Sampson, you are right to remind us that throughout history, women have been the victims of discrimination within the legal system. You are not the first person to tell us that the burden would probably be even heavier for women.

What can you tell us about the concrete implications Bill C-10 would have?

You said earlier that 70% of firearms owners were men, but that women were victims in 30% of cases. You have no reason to believe that Bill C-10 will improve protection for women: on the contrary, it will reinforce their victimization.

Did I clearly understand what you said?

[Fiona Sampson]

I think you're right to understand that it does nothing to decrease women's vulnerability and it does nothing to increase their equality. It's actually 85% of men who own guns and 30% of women who are the victims of gun violence. Those numbers are a real concern to us, but mandatory minimum sentences on firearms like those proposed through Bill C-10 just do nothing to address that inequality and the oppression that women experience through the connection between violence and guns and masculinity.

In terms of concrete examples of women's disadvantages associated with Bill C-10, women aren't just white, able-bodied, non-racialized women; women are members of other communities. It is primarily men who are gun offenders, and when those men are targeted by these provisions, it disadvantages the whole community, so it disadvantages the women in those communities as well.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Thank you, witnesses, for being here.

My question is for Mr. Rudin and Ms. Sampson.

I can't remember the factual situation of Gladue, if that was an equality, section 15.... So this may be a somewhat redundant question. Is it possible and is it being contemplated that at some stage the aboriginal community or advocates for women would actually launch a challenge under the charter because of the systemic discrimination that's within the system, because of the results you get with this kind of legislation? Both with regard to this legislation and perhaps a bit more generally, is that kind of litigation either going on now or is it being contemplated?

[Jonathan Rudin]

In the cases we have recently been appearing before the Supreme Court on--just a couple of weeks ago, a case about negligent investigation by the police, and earlier about the Youth Criminal Justice Act--we used section 15, but we urged the court to use that as a lens of equality for analysing a specific challenge to a particular piece of legislation. It's not a direct section 15 challenge; it's an aid to interpretation more than anything else.

I think the difficulty with launching a section 15 challenge head on is that you have to find an individual who you can show is being discriminated against, in addition to the fact that they've also committed a criminal offence. So that is one of the things that creates a challenge. It's why, for example, on a challenge to Bill C-10, to the provisions that I spoke about, we would bring in the issue of aboriginal representation in section 15, in the context of a cruel and unusual punishment application.

Given the way section 15 litigation is going these days, that's probably where we'd go.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Ms. Sampson, do you have anything to add?

[Fiona Sampson]

From LEAF's perspective, we would say that Bill C-10 is vulnerable to a section 15 challenge because of its discriminatory effect and the discriminatory impact.

It would be a challenge in terms of the court's most recent interpretation of section 15 to make a successful argument, so we think it's definitely vulnerable to a challenge.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

What kind of evidence would you have to put in, then?

[Fiona Sampson]

We would, as Jonathan mentioned, have to have a claimant. LEAF doesn't ordinarily initiate litigation but we intervene in support of equality claimants. On the kind of evidence that we would need, actually a lot of it is included in our brief that I keep teasing you with, which you will see soon.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

We will read it.