Justice Committee on Nov. 23rd, 2006

[Andy Rady]

It may be early yet, because it's still being considered, but one of the considerations there is that you'll see applications to the court--the defence calls them “Rowbotham” or “Fisher” applications--where the judge can order the attorney general of the province to pay for counsel under those circumstances. I think you'll see from the defence bar an increase of those, should they believe that they cannot adequately provide a defence within the parameters of the new cap. In tuning that up....

I think I'll leave it at that.

[William Trudell]

Perhaps I could speak to that.

One of the problems in the entire criminal justice system right now is that in adding this kind of a minimum sentence to certain provisions, it becomes more complex and more serious. And the mega-trials are not a feature that we were used to 15 or 20 years ago. They're a new feature, and the criminal justice system really has to figure out how to run it like a business.

I think the Steering Committee on Justice Efficiencies and Access to the Justice System has looked at the mega-cases and has looked at the front-end system, and more thought and organization has to be put into the management of these cases before they get into the system, as opposed to having them in the system before all of a sudden the brakes go on. So all the stakeholders have to go back to point one and look at the ramifications of big cases.

Sometimes defence lawyers are criticized for taking too long, but that's another topic. Look at what happened yesterday in Montreal. How many people were arrested--about 70 or something? That is an amazing tax upon the system. And quite frankly, I'm sure there were gun charges. The system gets jolted when that kind of investigation takes place and charges result.

The criminal justice system is under remarkable strain right now and is one of the reasons why we urge you to really look at whether or not you need to change this law, because it will add a strain to the system. What you see in the bill is discretion in crown counsel to go by summary conviction to avoid the minimum sentence. Have crown counsel in the room, not the attorney general. Ask his lawyers whether they want this discretion.

My respectful submission is that it's wrong, and they don't want it. So the police and the crowns are going to determine, really, what happens at the end of the day. That's not what our system is all about. The crown never loses and the crown never wins; they are ministers of justice. So before we sort of jerk the system by introducing new legislation that looks like it's a reflection of what the public needs or what the public wants, we have to really look at how it fits into the overall picture.

With respect, I really sympathize with victims who are caught up in this. But we have to be honest with victims. We have to really tell them that these are not quick fixes. And if you have 50 victims who say “I want stiffer sentences, I want retribution”, you can find 25 other victims who will say “I want restorative justice”. That's what Canada has been moving toward.

It's complex and it's layered and the issues are not simple. That's why I come back to what I said. It wasn't to praise you. You have a tough job now, because what you do with the onslaught of legislation is going to affect my kids and your kids for a long time.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell.

Mr. Comartin, you have a little time left.

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

In terms of the council, have you tried to do any kind of analysis...? And I know it's hard to do in isolation, with just this one bill, with all the other ones that are coming. But assuming this bill and at least a few of the other ones were to get through the House, have you tried to do any assessment--and I'm trying to get you to quantify it--of just how much pressure is going to be put on the justice system right across the country? Is it 5%, is it 10%--are we going to have that much more time spent in the courts?

[William Trudell]

It's very different in Toronto from what it would be in New Brunswick. It's very different in New Brunswick from what it is in Quebec. It's very different in Quebec from what it is in Manitoba. And that's because the system is not funded the same. Legal aid in Toronto, for instance, is much better in some respects than legal aid in other provinces.

Some provinces will say the legal aid system in the province of Ontario is wonderful, it's a Cadillac. Some other places would say we don't have anything like that. Well, of course, for Toronto, the cost of doing business here is greater, but the system is being remarkably strained by legislation that we're rolling against, and we're trying to figure out how this affects us.

I would hate to be a judge--and it won't happen, so nobody has to worry. How is a judge going to do their job with managing the court on the limited resources that they have, with the strain on legal aid and the rise in the unrepresented accused, and then the possibility of mandatory sentences? At the end of the day, they'll want to throw up their hands, I'm sure.

They can't speak for themselves, but it must be an incredible strain on the judges. Let's be honest. Basically we're saying to them, “You're not doing your job.” And they are doing their jobs. They're doing their jobs every day. There are all kinds of anecdotal stories, but we have a great criminal justice system, and it works. But it is being strained by new legislation that doesn't look at the domino effect of it.

So Mr. Comartin, that's why the people who are on the council--and we have representatives, as you know, from right across the country--look at this and say, “Wait a minute. We don't have a problem in Yellowknife. There's no gang problem here. There's no shooting here. How do I react to this dislocation of families and stuff?”

When a bill is passed, it's not passed for Toronto or Vancouver; it's passed for every part of the country. And the criminal justice system is straining. We don't want to have persons rushed through trials because we can't afford to do it properly.

I don't know whether that helps.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Trudell and Mr. Comartin.

Mr. Rady.

[Margaret Beare]

Could I just make a quick comment related to that as well in support of what was said?

We still talk about our system as being bifurcated in the sense of the separation between the police and the lawyers, and the lawyers and the judges. Every time there's a wrongly accused case, it's emphasized again how important it is that those different sections of the criminal justice system operate separately.

I spoke at two judge training sessions within the last number of weeks, one in the Toronto region and one in the Kingston region, and the judges are absolutely beside themselves. What has happened as the result of new legislation and the mega-trials thing is what strikes me as an amazing number of pretrial meetings that now have to take place between the judges and the crown to sort out what kinds of charges, what kind of this, what kind of that, and there's a much greater involvement of the police at those meetings.

Those meetings are in fact informal, invisible. Yet we still talk about our system as having sort of distinct.... The comment was made that there's not a win or lose, you're just presenting the information. Well, the kinds of cases that are now coming up and the legislation that's having to be dealt with really have, I would argue, those three different sections basically all working in cahoots--to use a negative term, which I don't really mean.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Beare.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thanks, Mr. Chair.

I thank you all for being here.

Just to be clear on something, Ms. Beare, if the judges are bothered by anything you mentioned, it's not in relation to anything this Parliament has done to date, because none of our criminal law initiatives are even in place. I wouldn't want people to be led to believe this has something to do with the work this committee has been doing and the number of bills we're working on. This is something that also has to be addressed in the system—the backlog, the workload, and that type of thing—but it's certainly not a result of anything that has been done by this Parliament.

[Margaret Beare]

Fair enough.

[Rob Moore, Conservative, Fundy Royal, NB]

The question was asked, why this? Of course, in any discussion that we have around a bill, there are other things discussed, such as police resources—and we had the chief of police here today. Questions are asked about what the root cause is. We've heard all of that. But the why is a recognition, in a non-partisan way or even a non-ideological way, that there is a problem, that the status quo is not working, and that we as federal legislators have to pull our weight when it comes to the entire system. I've certainly heard evidence today about any work the provinces are putting into this and the good work the police are doing. But we heard also of frustration with the federal level not pulling its weight.

I say “non-ideological” because certainly all ideologies are represented at this table, but there's basically almost unanimous support for getting tougher, if you will. Raising the mandatory minimum sentences for serious gun crimes was talked about during the last election campaign and so on. All parties said we need to get tougher on gun crimes, that we need to do more, that we need to increase mandatory minimum sentences. I don't see that as coming from any particular ideological persuasion.

I would like you to expand a little, Mr. Rady, on the fear of getting caught. It's part of the reason why we brought in this legislation, and I would argue that it is well thought out. There was consultation. We do acknowledge that, as with anything we would have done, there's a potential for charter challenges to legislation in all criminal cases. Of course there will be challenges. But the Minister of Justice and the department feel the legislation is sound, and it will be your job to challenge the legislation when and if it passes.

Yes, there's the fear of getting caught, but the sentiment that has been expressed to us by victims' groups, by police, and by attorneys general provincially is that we have a catch-and-release type of system right now. Too often, people are getting caught and are then being released.

I heard powerful testimony today on the deterrent effect, and also on the real impact on crime in a community. It was pointed out today that it's not everybody who is committing these crimes. It's a small minority, a fraction of society in Toronto and elsewhere, who are committing these serious crimes. When those people are taken off the street, the violence goes down. The chief of police was here. He gave an illustration of a community where those individuals were targeted by police. In that time when they were incarcerated, the violence went down. The killings went down and violent crime went down.

I'd like your comments on that, because you say your clients are afraid of getting caught. But we all know your job is to make sure that once they're caught, they get back out. It's part of that revolving door, if you were. We want to make sure that once someone's caught, there's a consequence and it means they're off the street.

[Andy Rady]

I would say this: I think there are a number of myths, and one of the myths is that the status quo is not working. It's not working because some people are saying it's not working. I think there's a myth of a revolving door. I don't have the statistics here, but I know that there have been some published recently in the province of Ontario.

In the province of Ontario now, we have more people on remand in our provincial jails than we do serving time in provincial jail for the first time in the history of this province. That would tend to suggest that we are detaining more people after bail hearings than we are releasing. What we hear about are a couple of cases in which a person gets released on bail, if they are notorious cases that may offend sensibilities. We don't hear about the persons who are detained in custody pending trial for minor matters, knowing that the sentence that they will get would probably far exceed the amount of time it's going to take to have that come to trial. That's not being discussed.

If we're going to talk about these things, I think we have to look at them in the broad spectrum. There are some myths about the revolving door. As I said to you at the outset, I've been practising for 25 years. Getting bail for my clients 25 years ago was a much easier task than it is now. I have many more clients—and I'm not talking just about having more clients—who are actually in custody awaiting trial than on the outside awaiting trial.

One of the announcements this morning was about changing the reverse onus for gun crime. Whether you want to accept it or not, most of the justices of the peace in this province who deal with releasing people on gun crime—and there are exceptions—already consider it to be somewhat reverse onus. Crowns do not consent to the release of people who are charged with gun crime. They have a directive on that. Justices of the peace tend to remand those people in custody, but the problem is--and these myths develop--we hear about a couple of cases in which someone gets out or there's some sentence that seems to be outlandish, in that it's not tough enough, and we react to that. We don't tend to react to the success stories, and that is a concern.

[Rob Moore, Conservative, Fundy Royal, NB]

I'd like to make a point on that, then. Oftentimes it is an individual case that captures people's attention, and sometimes it takes that happening to capture people's attention. But if there's a situation where that's preventable.... We've heard testimony about people who are arrested, have a firearm on them, are given bail, are back on the street, and are arrested again with a firearm. That's a problem. It's a problem in Toronto, and it's a problem elsewhere.

I think we all recognize around this table that whatever we do here, whatever we do with this bill, the Criminal Code is going to apply across the country, as far as the provisions dealing with break and enter to steal a firearm go. I'm of the opinion that whether you break into someone's apartment in Toronto and steal a firearm or break into their cabin in rural New Brunswick and steal their firearm, it's still a serious offence. It should be treated differently from how breaking in and stealing someone's guitar is treated. Stealing a firearm puts that legally owned firearm onto the street, and potentially into use to commit a criminal offence.

We realize that this is going to apply to everyone. That's why I think there is a balance to it.

There have been other suggestions that we should have had an across-the-board increase in mandatory minimums. What this bill specifically does is target gang violence and handgun violence. It does have an escalating factor. Through some of the testimony we heard here today, people asked why there should be a greater sentence for the second offence, and greater still for the third. What happens if someone commits three offences at once? Ms. Barnes used the example of someone holding up a store with an unloaded handgun. Chief Blair said that in all of his experience, he's never heard of anyone holding up a store with an unloaded gun.

We can always point to some absurd circumstance or the exception, but generally we feel that those who show a pattern of recidivism have to be treated more seriously. Do you agree with that? If someone shows that they continually reoffend, and even after they've served their time they're back out and offend again, shouldn't they be treated more seriously?

[Andy Rady]

And they are. That's another one of the myths, that judges tend to be soft on crime or incapable of meting out a stiff punishment. Maybe I'm not a very good lawyer, but my clients who are recidivists get whacked the second time around. By whacked, I mean they get hit a lot harder. It's double the sentence the first time, and sometimes more than that.

We heard a case today about the crown asking for ten years and the defence asking for two or something, and the fellow got two years, and that's not acceptable. There was a case in London yesterday where the defence asked for four months and the crown asked for six and the judge gave him nine months. No one's saying anything about that. That's a judge who obviously exceeded what even the crown wanted. With all due respect to the police, because I have represented people who have held up stores with unloaded firearms, there's a bit of a myth out there about what judges are doing and what they're not doing.

Mr. Trudell gave you the example yesterday of Justice Archibald, who meted out a 21-month sentence for the possession of a gun. I would think most defence lawyers--those who have been practising for a while, at least in Ontario--would say the tariff has gone up greatly. And judges are not soft on crime; they are very serious about crime. The issue here really isn't being tough or serious, it's being smart on crime and dealing with it in a way that's truly going to prevent it. That's what we're talking about.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Rady.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Ms. Beare, I don't want to spend much time on you, because you thoroughly trashed the bill in more esoteric ways than even the other witnesses. When you talked about putting more police in the street, I'm sure the government would agree with you, that's good. But you didn't mention this is going to incur more trials and is going to take police off the streets, because they're going to be in the courtroom, and it would make the streets more dangerous.

I have one quick question for you, and I hope you can give a yes or no answer. It's on organized crime and gangs. I know the technical problem you have with the bill, but I assume in general you don't mind that we're giving a more serious penalty to an identical crime that occurs in an organized crime or a gang environment.

[Margaret Beare]

The problem with a yes or no answer for that is the problem with the concept of organized crime. I was interested, just a moment ago we were talking about the notion of pattern of criminality. Our definition of organized crime is, as someone said, three people involved in something. We've even done away with the notion of pattern of offences. In Canada, we've always looked toward RICO, the American “racketeer influenced and corrupt organizations” legislation. That at least had kept the idea that to be a RICO offence, it had to have a pattern of offences. So we did away with it. It was too hard to prove a pattern in order to call somebody an organized criminal. So that was done away with. And now it's almost as if we're coming in the back door and saying we can call you a criminal organization without there being a pattern, but as soon as you've got the second offence, we can wham you with the consequences of that second offence.

We started in Canada by not even using the term “organized crime”, enterprise crime, and we restricted it to some 24 or 25 offences. Now literally it is a concept that applies to everything that's at all serious. So yes, given that definition, it applies to street gangs.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Trudell, you were talking about the lack of consultation. Having been a bureaucrat, I know how that normal process works. It is astonishing it isn't in here, and the backgrounder didn't even support the bill. So I'm going to ask you, based on that, would you—

[The Chair, Conservative, Art Hanger]

Mr. Moore, a point of order?

[Rob Moore, Conservative, Fundy Royal, NB]

Mr. Bagnell just said the backgrounder does not support the bill. What backgrounder are you referring to?

[Larry Bagnell, Liberal, Yukon, YT]

I was quoting the witness.

[Rob Moore, Conservative, Fundy Royal, NB]

What backgrounder are you referring to?

[Margaret Beare]

The backgrounder to the bill. The legislative summary that was prepared was what I was referring to.

[Rob Moore, Conservative, Fundy Royal, NB]

I'd like to know what you're referring to.

[William Trudell]

I was referring to the legislative summary, “Legislative History of Bill C-10”, which is an 18-page document. It was sent to me by the Department of Justice along with Bill C-10.