Justice Committee on Nov. 23rd, 2006

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell.

I just want to let the witnesses know that we have two hours, not one, as I previously stated.

Mr. Rady, please, the floor is yours.

[Andy Rady]

I was going to speak much more quickly, but I'll speak slowly so that people understand.

I'm a provincial director, as well, of the Criminal Lawyers' Association. This is an association of just over 1,000 criminal lawyers from the province of Ontario. I'm the representative of the Criminal Lawyers' Association to the Canadian Council of Criminal Defence Lawyers, and as such I'm a director of the CCCDL. The Criminal Lawyers' Association of Ontario has also submitted its own brief to this committee and I commend it to you.

I've been practising criminal defence law for 25 years in the city of London, and I have appeared at all levels of court throughout Ontario. My perspective here today is that of someone who has the knowledge of criminal law as practised in this province. I've represented persons charged—sometimes acquitted, sometimes convicted—with crimes involving guns, and any insights I have come from that point of view.

I obviously adopt what Mr. Trudell has said, but in my own capacity here I've looked at the legislation and there are a few points I'd like to make and a few questions I'd like to ask. That's what criminal defence lawyers tend to do: they ask questions. My first question is, why? Why this legislation? What is it hoping to accomplish?

Well, at first blush, what it's hoping to accomplish is to get tough on serious crime. That is the phrase we've heard many times over the past little while. But does it do that? Let's look at this in a deeper way.

Why has gun crime increased, if it in fact has? Why is gun crime a problem that needs to be addressed? Will this legislation answer the question as to why? I submit to you that it does not.

I represent people who are charged with gun crime, and I look across at them, sometimes through the bars of a jail cell, sometimes across my desk, and I always ask myself, why did this person commit this crime, if in fact they're guilty? Why are they charged with this crime? What is going on here? That is the root problem that we have to get to before we have the kind of safety that is sought as a result of this legislation.

There are various levels of criminality, even with gun crime, and there is a root cause to that. That is not being addressed. Until it is, I'm going to submit to you that all this is going to do with the passage of Bill C-10 is to in some way instill a sense of false security over people. We have to understand why crime is being committed.

Let's look back 30 years in this country. We did not have, apparently, the level of gun crime then that we do now. We had the same Criminal Code and we had a Criminal Code that had no mandatory minimums. In the mid-1990s, the Liberal government passed some mandatory minimums of four years for robbery and one year for possession of certain firearms. We still have the problem. The question again is, why?

The reason, perhaps, is that we have to study, we have to consider, what we can really do not just to punish crime but to stop it from its root level. We have to understand the issues of poverty, of education, of social welfare. Those are much broader issues than perhaps what this committee can do, and they are much more expensive issues from the point of view of a parliament. They are expensive issues because they cost a lot of money to implement. Social justice programs, anti-poverty programs, increased education, understanding how our children are socialized into accepting the fact that gun violence may be acceptable is what we really need to do in order to stop this.

A number of years ago it was socially acceptable to smoke in this country. We still have smokers, but the way smoking was cured was not by any punishment but because it was made socially unacceptable to do that.

Impaired driving has decreased. The punishments have increased, but if you look around, one of the reasons, of course, is that it has become socially unacceptable to be that person who gets behind the wheel and might harm someone.

So we have to ask ourselves—and I don't have the answers—why is it attractive to use guns? It's not because the Criminal Code is soft. My clients don't commit these kinds of offences because they think they're not going to be punished. They don't consider that. They consider being caught.... You've probably heard this from other persons who've made submissions before this committee and elsewhere, but it is the fear of being caught that perhaps is the greatest deterrent, not the actual punishment itself.

So what I'm saying is, to just impose mandatory minimums and arbitrarily believe that maybe if we make it five years, seven years, and ten years, that will work, I submit to you that there's really no evidence of that.

Even if you do pass the legislation on that basis, you're still not getting to the problem of why, as in why this horrible incident happened in Toronto on Boxing Day. It didn't happen because someone said, “Oh, we're soft on crime, so I might as well go and shoot up the streets.” I think it would be extremely naive for anyone to believe that was the cause of it, or to think that the corollary of that, imposing a stiffer penalty, if one isn't considering the consequences of crime, will have an effect. We have to understand why those young men may or may not have been there, what was going through their minds, and why that was acceptable. Why is it that gun violence is tolerated? What is the root cause of that? That is the greater issue that requires the kind of consultation and study we are talking about today.

Two things I'll point out in support of my position. One, you're all familiar with New York City, of course. A number of years ago, I don't think any of us here would have considered venturing into Times Square in the evening. Now Times Square is perhaps one of the safest places in the United States. Why? It isn't because mandatory minimum punishments were imposed. It's because the police presence in Times Square was expanded greatly. There are police officers every 100 feet, and they have a police precinct there.

So it's the fear of being caught and it's the presence of the police that deters crime in that instance. I point that out because it reiterates the fact that it is the detection of crime that is important.

One item in the bill that I would point out specifically as one that may be problematic to you is proposed section 230, dealing with murder. This bill creates the new offence of breaking and entering to steal a firearm. It now says that culpable homicide is murder where a person causes a death during the course of certain offences, and that is one of them. It also includes the offence of robbery under section 343 of the Criminal Code.

I think it's incumbent upon the committee to realize that some years ago, the Supreme Court of Canada struck out robbery, in a case called Vaillancourt, as being available for this constructive murder section. Consequently, I believe and would submit to you that including this section concerning break and entering to steal a firearm would likely meet the same fate. What does that say? It says that, similar to what Mr. Trudell said, had there been, before this, the kind of consultation that we are suggesting, it would have been a very simple matter for someone to have pointed out that the section is probably unconstitutional on its face with respect to those two sections, one already being struck down.

Frankly, it's sloppy in terms of the way the matter has been drafted. That didn't have to be in there from the beginning. This goes back to our position that if we consult about these matters ahead of time....

We are criminal defence lawyers. We defend people who are charged with crimes. But we're also citizens of this country. We also have families and homes and properties. We have a stake in having a safe Canada. We are here to assist. Our message for you today is that we're still prepared to do that, but Bill C-10 is not going to get you the result you want in terms of safe streets.

You have to consult more. You have to look at the root causes of crime. That's what has to be dealt with.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Rady.

I can see that there's quite an appeal on the part of the witnesses before the committee now.

In all fairness, too, Mr. Rady, I know you have asked some significant questions, and we've had some significant testimony, not just from criminal defence lawyers but also from the police--all professional people, all serving in their capacity as part of the criminal justice system. Really, their contributions are quite significant as well, but they take the opposite tack to you are calling us to accept.

At the same time, we're going to throw all this together and make an evaluation. I think that's the responsibility of this committee. It may not quite fall into where you're at right now, but it may not fall into where the police are at right now too.

The debate has been a good one thus far, I dare say, and we've listened to some pretty compelling statements from many.

[William Trudell]

Mr. Chair, could I just respond to that very quickly?

We would urge you to consult with police forces throughout your consultative hearings, but I would urge you to consult with police who are not just in the city of Toronto, or big cities, but in the Northwest Territories, with the RCMP, for instance.

[The Chair, Conservative, Art Hanger]

Yes, in rural areas. Understood.

[William Trudell]

Exactly.

[The Chair, Conservative, Art Hanger]

We have them on our list too, believe me.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

To the that point, the RCMP representative the other day, actually in a response to my question, seemed to indicate that he thought judicial discretion to listen to extenuating circumstances.... In fact he didn't sound so keen on this piece of legislation, but we sometimes have selective hearing in some parties around the table here.

We are going to have two hours here, so I'm going to ask some questions I normally wouldn't.

I'm going to start with Ms. Beare. Could you just tell us something about your centre by way of background, what it does and what type of work it does?

[Margaret Beare]

Yes. The Nathanson Centre gets its name from the man who actually gave the endowment. It's located at Osgoode Hall Law School. I am not a lawyer; I'm a criminologist.

The notion behind the Nathanson Centre was the idea that in Canada there should be a community of academics looking at organized crime and corruption. Right now I'm on sabbatical and there's a new director, and in fact the title of the centre has been broadened so that in fact most accurately it is the Nathanson Centre on Transnational Human Rights, Crime and Security. It includes a broader range of topics than just organized crime. It was founded in 1996, and I was the director for those ten years, right up until June of this year. It is the idea of trying to get empirical research looking at not only the substantive issues of organized crime itself, but to really look critically at what we're trying to do in terms of things like this topic right here, legislation where the rhetoric supports all of the positive things it's going to do, and yet when you actually look at the activity itself, there is very often a disjunction.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Mr. Rady, you weren't here earlier, but in my speech, which I think somebody showed to you, I gave the example a prosecutor gave to me of the difference in sentencing under proposed section 344(1)(a)(i), and that's the difference between the fully loaded long gun, with a person with a criminal record getting a mandatory minimum sentence of four years, and then somebody with a handgun--and it could even be an unloaded handgun or it could be a loaded one too--with no criminal record getting a mandatory minimum sentence of five years. Just for your own review, those were in robbery, sexual assault, kidnapping, hostage taking, or extortion.

Do you have any comment? Am I reading the section the right way?

[Andy Rady]

I believe you are reading the section the right way. Some parts of Bill C-10 refer to firearms and others refer to restricted and controlled weapons. There it refers to restricted and controlled weapons, not firearms per se, so that does in fact mean that if a person robs a corner store using a .30-.30 rifle, which he might have a licence for, he would get a four-year minimum, but if he went in with a handgun he would get a five-year minimum sentence. I would think from the point of view of the victim looking down the business end of that weapon, they wouldn't distinguish between what kind of a firearm it was, but Bill C-10 does seem to distinguish between those.

[Sue Barnes, Liberal, London West, ON]

I also in my speech pointed out the constitutionality of section 230 before.

Mr. Trudell or Ms. Beare, what about the evidence-based material that you can look to, whether it's from our jurisdiction or other jurisdictions, preferably around the Commonwealth but even in the United States, on the efficacy of mandatory minimums?

[Margaret Beare]

The research tends to support the idea that people work around it, that the mitigating circumstances are too important to be ignored, and therefore charges are either not laid at all, or dropped or whatever, in those situations where the person would be facing a mandatory minimum where it is deemed to be inappropriate. Of course, there is all sorts of evidence that also indicates the inappropriateness or the disproportionality in other circumstances where an adjustment is not made and the person does in fact get inflicted with a mandatory minimum. It just does not seem from research, surveys, or whatever to add up to fair justice.

[William Trudell]

I was struck by looking at the government's backgrounder paper and this bill. From my reading of it, I was shocked the bill was introduced, because it seemed to suggest that the evidence in this country, the evidence and experience in other countries, does not support mandatory minimums. I don't know why it would be put in the backgrounder, and then you move ahead with the bill. There it is, it's out there to be gathered.

I understand that even in some other countries where there are mandatory minimums, there are exception clauses, so judges can do the jobs we ask them to do, and that is to use their discretion to reflect the protection and needs of the individual community. This is one of our concerns. People with the expertise and knowledge and background of Ms. Beare, to people with the knowledge and background of Tony Doob, etc., this is out there. We were shocked that's the type of consultation process that doesn't take place, because it all seems to point to it doesn't work. And if you come to the conclusion that it just doesn't work, whether you're part of the Conservative government or not, it's like the government saying we're going to pass this bill and you've got a mandatory minimum time to consult it. You would say no, that the job of parliamentarians was to gather the information.

From our review, we see all kinds of material out there that will help you, and it may suggest that this bill and these types of provisions don't do what optically some suggest they do.

[The Chair, Conservative, Art Hanger]

Ms. Barnes, in reference to your question, you asked for evidence-based information on the efficacy of mandatory minimums.

Ms. Beare, you have some of that available for the committee, do you?

[Margaret Beare]

I can certainly round it up. But again, just in terms of emphasizing what Mr. Trudel said, what was so amazing about that background document is that it documents it all and it's got the references in the back of it. I expected the preamble of the bill would be sugar-coated instead of discounting the critique, which in fact it isn't. It lays it all out and it's got all the references.

[The Chair, Conservative, Art Hanger]

Maybe the references are a matter of interpretation.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you.

The most conclusive study on mandatory minimum sentences was conducted for the Solicitor General of Canada, by Mr. Crutcher and Mr. Tabor. These studies are very clear: mandatory minimum sentences do not act as deterrent, nor do they have an incidence when it comes to reoffending. There is no doubt about this. There is a whole host of studies demonstrating that they do not work.

This bill is ideologically based and attempts to give a false sense of security. This is why, unfortunately for some, the opposition parties are likely to do what they have to do by voting against this bill at committee stage. If you'd like, Mr. Petit, I'd be willing to bet you a large beer.

Now let's come back to organized crime and Bill C-95, which has become Bill C-24. I'd really like you to take your time and tell us... First, your appraisal of the mega trials is interesting. In my opinion, an offence under sections 466 and 467 of the Criminal Code should have been established. Indeed, during the 1990s, the Department of Justice thought it could break up organized crime networks by relying on the conspiracy provisions. I remember having discussed this with senior officials who were convinced networks could be pulled apart simply by virtue of the conspiracy provisions.

I didn't agree; I really thought the notion of a gang needed to be defined, because the existing definition wasn't always functional. Initially, a gang was five people who committed five offences over five years. Then, a parliamentary committee suggested three. Warrants for wiretapping were extended. The whole process was enhanced. This meant that the major organized crime networks were able to be broken up, not as a result of mandatory minimum sentences, but rather, because law enforcement was given the tools it needed to gather evidence, including wiretapping, which is the best way to dismantle organized crime. As a result of the decision in Stinchcombe, it became possible to bring people before the courts. This decision made complete disclosure of the evidence mandatory. Initially, people weren't happy about this. Eventually, people learned to deal with it.

Having said this, Ms. Beare, I would like you to say more about your fears concerning gangsterism and its effects on Bill C-10, which you referred to at the start of your presentation.

I'll then have a short question for the Canadian Council of Criminal Defence Lawyers.

[Margaret Beare]

In terms of the linking of the criminal organizations legislation to this bill, my particular concern has to do with the new offence created with Bill C-10, the participation one. Again because of the breadth, all the conditions that the crown does not in fact have to prove, and the fact that it is highlighted in the legislation as being so worthy of the enhanced sentences.... I'm jumping again, from five, to seven, to ten years.

We know that at their August meeting the CACP wanted to see it put in the Criminal Code that once the group is identified as a criminal organization, they won't have to repeatedly document it.

They're trying to make Hells Angels a criminal organization by definition. Every time somebody comes up who is related in any way.... Again it's the breadth of that participation that I find so alarming. You can participate without knowing who makes up the organization. You can facilitate without the offence itself ever having taken place. Again you apply that to....

Hells Angels is a perfect organization to get that powerful legislation passed. I often joke with the police that they couldn't ask for a better group of criminals: they wear jackets, they have clubhouses, and they have Harley-Davidsons. They are perfect for thinking about group membership, and therefore sort of criminalizing that kind of organization. Then you apply that to a street gang situation, and you have problems. You try to extend it further, and you go against the grain.

Other countries have finally started to realize that organized crime's structure is often largely a fraudulent one, in the sense that the structure that's perceived by the police, the media, or whatever is sort of a core of that. You have lawyers, you have all.... In fact, today the take-down in Montreal...you know, talking about organized crime corrupting officials. They're probably part and parcel of the whole organized crime scenario.

My only point is that we make groups out of people who are hardly groups, and we can roll into that group.... I would fear anybody and everybody who in any way comes in contact with these so-called criminal organizations. It's the vagueness and the breadth that I'm worried about.

[Réal Ménard, Bloc, Hochelaga, QC]

Turning to the Canadian Council of Criminal Defence Lawyers, gentlemen, we will read your brief with interest, but please remind us what amendment you wish to make to subsection 718.3(2). Could you reread it slowly?

I want to understand this now; I have an urgent need to grasp this notion. My intellectual curiosity must be satisfied forthwith.

[William Trudell]

You may perceive that some of the legislation that's being introduced is directly or indirectly an attack on the principles of sentencing, because the principles of sentencing, as set out in section 718, really talk about using jail as a last resort. The particular section I referred to is subsection 718.3(2), and it says this:

Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.

So that clearly addresses the issue of discretion and addresses what the minimum punishment is that you have to have so that it's a minimum punishment.

Our suggestion is that this be amended to include: “Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the Court before sentencing the accused shall consider whether the minimum punishment is necessary having regard to the public interest,”--that's number one--“the particular needs of the community and the interests of the accused in all of the circumstances.”

So we say that if that exception provision is put in there, then you've accomplished everything that some may suggest you need to accomplish: sending a message out, respecting the courts doing their job and applying the discretion, reflecting the interests of the community, and also the particular community, for instance, if it is an aboriginal community.

I would like to say something in response to the question my colleague Ms. Beare was talking about, and that's the whole phenomenon of street gangs. I know that the chief was here today and Attorney General Bryant was here today. The prosecution of the street gangs in Toronto has been overwhelmingly successful. It's incredible, and the credit goes to the police and to the Attorney General in bringing these prosecutions forward. What happened was they made a concerted effort, they put the manpower out there, they put special teams there to give advice to the police in the beginning. They ran it like a business. It has nothing to do with minimum sentences, nothing whatsoever.

You remember what happened in Montreal; you read the papers. The concerted efforts of law enforcement, with guidance from the crown's offices, brought down a major alleged organization. They didn't have any of those minimum sentences. And when judges eventually get those people before them, if they are found to have committed offences that call for jail, they're going.

Three days ago, here in Ontario, Mr. Justice Archibald gave a 21-month sentence for someone in a car with a gun--more than anybody asked for. Judges are imposing these sentences, and there's no question that if you have a gun in the city of Toronto, or you access a gun, or you're in a room with a gun, then the system looks at that and the judges look at that from day one very seriously: they need minimum sentences.

So law enforcement is doing the job. What we're afraid of is that this bill simply reflects a political statement. We're sorry, quite frankly, that the Attorney General was here today, from this province, supporting this bill. I understand what he was saying. He was here to talk about things that are going on in downtown Toronto and an announcement today that Premier McGuinty.... It's all politics.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell.

Mr. Comartin.

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

Thank you, Mr. Chair, and thank you to the witnesses for being here.

Mr. Rady, with regard to the Vaillancourt case and section 230, have you communicated directly to the Department of Justice this concern and pointed out what almost certainly is going to get struck down?

[Andy Rady]

No, I haven't. Frankly, I would have thought that if someone is drafting legislation of this magnitude, they probably would have considered that, but I apologize for not having done that. We certainly can do that.

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

They'll get it now, so it's okay.

To both Mr. Trudell and Mr. Rady--and we're going to get some more of this later today from Legal Aid Ontario--in terms of the decision to cap the amount of money they're going to pay out for mega-trials, the lengthy trials, I have two questions.

First, as defence lawyers, what do you see happening when the $75,000 runs out? And second, maybe flowing from that, for those lengthy trials--the ones that run on for two, three, four months, and some longer--what kinds of fees are usually charged to the legal aid plan? I guess a third question, tying in to that, is what is the judge going to do? Is he going to allow counsel to walk away from the trial; is he going to order him to stay; is he going to order the government to pay the fees anyway? Could you give us a sense of what you see happening?