Justice Committee on Nov. 23rd, 2006

[Prof. Peter Rosenthal]

Yes, thank you.

First off, when you look at Pennsylvania and things like that, it's ups and downs. Because it happened coincidentally that they passed a minimum law and then it was down the next year doesn't prove that was the reason. Just as it was pointed out, in Canada we have ups and downs in the same time period with the same minimums--up in Toronto and down in Montreal. So just the fact that one follows the other doesn't prove anything, and that's why these things are very hard to prove.

Secondly, Mr. Bryant mentioned one case, yes. Are you going to pass a bill based on one case or 10 cases? Why don't you do some serious studying? There are facts out there that can be studied. You could have researchers do those studies and then consider whether there really are any significant number of cases that justify this. That would be my response, sir.

With my apologizes, then, as I informed your clerk earlier, I have to go downtown. Thank you very much for allowing me to state my views to you.

[The Chair, Conservative, Art Hanger]

We appreciate very much, Professor, you taking the time to come here and present to the committee. I know you're designated as a professor of mathematics, but it looks like you're a man of many talents. We heard your information, and we'll certainly process it along with the rest.

[Prof. Peter Rosenthal]

Thank you very much, sir.

[The Chair, Conservative, Art Hanger]

Mr. Muise, I think you wanted to reply to Mr. Brown.

[John Muise]

That would be great. Thank you.

Again, I would turn you back to the studies south of the border with respect to the impact of incapacitation over the long term, rather than deterrence. How does that relate to what happens here in Canada? There's a whole pile of legislative pillars that need to fall into place before we seek the equivalent precipitous drops. We're not there in this country. This is a wonderful step, the mandatory minimum sentencing bill, but we need to do this. We need to do a wholesale review and altering of our parole laws and our statutory release laws, and we need to look at the regimen around our long-term offenders, our dangerous offenders, our high-risk offenders out on section 810 orders. There's a whole pile of things. But if we do all those, including the mandatory minimum sentence on the guns, what we will see is that the violent crime rate will drop.

In addition, I am familiar with the case that Minister Bryant commented on, but there are dozens and dozens of those cases in the naked city. Did I bring a laundry list of those cases? No. But the kinds of people who have committed violent crimes who are out on conditional sentences, the kinds of situations where the Crown quite appropriately, in my estimation, asked for 10 years, and the person gets two years, time served, and out the door.... I think there's a lot of that going on, and it happens on a daily basis across this country.

It's certainly why, to build on something Mr. Thompson said, two friends of mine.... One was the subject of a home invasion. And no, he didn't have a grow op; he was just an average guy staying at home who had people break into his house with guns and threaten to kill him because they wanted to do a home invasion. He happened to be out of the country. Another friend of mine, who I'm trying to convince to testify, was shot by a crack dealer. And no, he wasn't buying crack. I'm hoping to convince both of these gentlemen to come to Ottawa to testify. If I'm able to get them to come, I trust that the committee will want to the hear the voices of those victims, because I've certainly heard them over 30 years as a police officer, six of which I spent at the Office for Victims of Crime. In fact, I provided advice to a series of attorneys general, and Mr. Bryant was one of those.

I think that voice is incredibly important. I think we need to return the proportionality. I don't think, using the evidence-based approach that I've taken in terms of incapacitation--I've actually mentioned studies and provided charts and talked about these issues from that perspective--that that's incompatible with a vigorous charter and the rights of an accused to a fair and vigorous defence. I would never suggest that we need to give up those rights on behalf of the accused in exchange for greater public safety and enhanced justice.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Muise.

I will be bringing this session to a close.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Muise, you referred to some studies. Could you give them to the clerk for us?

[John Muise]

I don't have them.

[Larry Bagnell, Liberal, Yukon, YT]

Could you mail them to the clerk?

[John Muise]

Yes, sure. Some are included in the brief I provided, and I'll get the references for some of the other ones that are similar that I didn't include in my brief. I'll pass those on in the next day or two.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Muise.

Mr. Thompson, you have a point of order.

[Myron Thompson, Conservative, Wild Rose, AB]

Mr. Muise also mentioned a couple of victims that he would like to have testify before this committee. I always remember hearing from victims, and I think it would be a really good idea. I wonder if we could get their names and possibly invite them.

[The Chair, Conservative, Art Hanger]

The subcommittee, in fact, did address that issue, and there will be a discussion with the steering committee as to who will be appearing. I know Ms. Barnes also had two individuals who would like to appear. That's still in the process, Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

I'd suggest we get the names of these people, if we don't know them.

[The Chair, Conservative, Art Hanger]

I believe we know the names already.

[John Muise]

You know one of them. The other one I'm trying to convince.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Muise, for your testimony here. I believe we've had some additional information to be added to our deliberations. We appreciate your attendance. We hear another side to this issue, and I think it's important that we get it.

[John Muise]

Thank you for the good work that all of you do. I wish you all the best in your deliberations.

[The Chair, Conservative, Art Hanger]

Thank you.

The meeting is now suspended for one half-hour.

[The Chair, Conservative, Art Hanger]

I call this meeting to order.

I'd like to thank the presenters for being with us this afternoon. From the Nathanson Centre for the Study of Organized Crime and Corruption, we have Margaret Beare, who I understand is a former director. From the Canadian Council of Criminal Defence Lawyers, we have Mr. Trudell and Mr. Andy Rady.

I believe both of you have testified on more than one occasion before the committee, have you not? I know Mr. Rady has for sure.

I would ask for our testimony to begin. Ms. Beare, if you could begin, you have the floor.

[Margaret Beare, Former Director, Nathanson Centre for the Study of Organized Crime and Corruption, As an Individual]

Thank you very much for the opportunity to be here. I understand I have about ten minutes, but it probably won't take quite that long.

Most of the general criticisms regarding this legislation have already been outlined, probably this morning as well as in the legislative summaries. It's somewhat disheartening to realize that the problems have in fact been so thoroughly acknowledged, yet the proposal is for the legislation to proceed regardless. Research findings over a significant period of time, in various countries and distinct jurisdictions, are apparently treated as irrelevant to some extent. I would therefore like to make six points that I think are important in thinking about this legislation.

First of all, contrary to Justice Minister Toews' comment that academics who were critical of the bill did so without knowing what was in it, I do realize that this legislation is not similar in very many ways to the three strikes model that occurs within the United States. In fact, this legislation is limited to certain firearm-related offences, and that's to the good. But it does still have the arbitrary aspect of putting its weight behind the concept of the “sequence of convictions” notion of punishment, with the unsubstantiated claim that somehow this legislation and this kind of supposed get tough approach will contribute to making streets and communities safer.

Keeping to the popular baseball analogy, the minister is correct. It does not follow the typical three strikes. In looking over the summary on minimum imprisonment under Bill C-10, it offers us a two-strike model for certain offences, rather than three. There is an unfortunate occurrence in baseball when the second strike results in a foul ball caught by some overly eager opponent. Of course, there are quite a number of examples where the second strike can add the weighted sentence. Trafficking in or possession for the purposes is three years for the first, and the second offence is five. Altering a firearm is again three and five. It becomes a second-strike situation.

It claims to promote deterrence, yet contradicts the principle of specific deterrence, in that there does not appear to be in the legislation a guarantee that the sequence of convictions will be spaced so as to give the offender the benefit from any learning, rehabilitation, or actual specific deterrence following the first conviction. Lawyers speak of the Coke principle, whereby the second offence, with the punishment that's due to that second offence, must not have been committed nearly simultaneously to the first conviction and therefore the first sentence.

If we believe at all in deterrence and rehabilitation, then fairness and justice require that the convicted person should have an opportunity to learn before harsher penalties are applied. An example given in the parliamentary summary presents us with the example of a person who commits two firearm-related criminal acts. The point is made that regardless of the order in which they were committed, the order that matters is the order of conviction. This issue is particularly troubling with the sections pertaining to criminal organizations, where the punishment can in fact turn out to be crushing, and perhaps especially crushing for a young offender or a young individual who is not being treated as an adult. The first offence brings five years, the second offence brings seven, and third offence ten, when in fact the criminal acts could have been committed nearly simultaneously.

Thirdly, this legislation has the potential to turn the process of prosecution into a game, with the potential for the justice system to “time” convictions based on having the longer sentence saved for the second offence. As is described again in the summary, a person commits two offences, possibly simultaneously or very close in time. The example given was illegal importing of a firearm and B and E to steal a firearm. A decision can be made to proceed quickly with the B and E, so that the second offence has the longer prison sentence, five years versus three years. I realize that lawyers are used to playing games in order to avoid mandatory second offence legislation with drinking and driving or gaming legislation. The games will continue, but in a changed format, this time to the detriment of any serious attempt at rehabilitation.

Of course, from my involvement with the Nathanson Centre, I am particularly concerned about the linking of this bill with criminal organization legislation. The application of criminal organization legislation is broad and vague, and now it's linked to this new legislation. Yes, while it has withstood some challenges, the new offence of “participation”, particularly that offence within a criminal organization, is extremely broad. The crown, as you know, does not have to prove that the participation actually enhanced the ability of the criminal organization to commit the act. The crown does not have to prove that the criminal organization actually even committed the indictable act. The crown doesn't have to prove that the accused was even aware of the specific act that he or she might have been facilitating, and the crown doesn't have to prove that the accused knew the identity of any of the persons who constituted the criminal organization.

Now, if we take this “participation in criminal organizations” category of criminal and apply it to this legislation, again remembering what the crown does not have to prove, a person can be charged and convicted of participating in a criminal organization where a restricted or prohibited firearm is used in connection with the criminal organization, and the result can be that the individual then earns, if it's a first offence, five years, if it's a second, seven, and if it's a third, ten.

What is of particular significance to me is that what seems to be happening is that we pass legislation to address specific, high-profile incidents, usually where there are political consequences, and they're treated as if they're to address a particular problem. But then they become normalized in our justice system. Hells Angels spawned the criminal organization legislation--the so-called anti-gang legislation--and now street gangs are being treated as criminal organizations. The question then becomes, who's next?

The first point is the notion of bang-for-buck, which I thought was an appropriate consideration, given the anti-firearm legislation. We already know that the mega-trials are swamping the justice system. The only way the justice system is surviving under their weight is due to plea bargaining and the dropping of charges. Yesterday's newspaper told us what we already know: the gang mega-trials have swamped legal aid. We're told that a single person earning $16,000 may not qualify for legal aid. And with this legislation, there will be an enthusiasm for more mega-trials, hideously long trials, attempting to show that the operation was in fact a criminal organization. And there will be suspects without adequate defence facing these extensive mandatory charges.

The impact on plea bargaining may in fact be mixed, which again hardly qualifies as equal justice. There may be less plea bargaining. Therefore, there will be more demand for trials, more legal aid needed, and more prisons. Or there may be more plea bargaining with the crown dropping or not laying the second charge, with some sort of agreement being made for consideration of above-the-mandatory minimum for the first sentence. However you figure it, it's not going to be the uniformity that I suppose underpins the thinking behind this legislation.

Finally, what is the answer? The legislation only discusses mandatory minimums, which serve only to limit the discretion of judges and result in the kind of finagling I'm talking about. The ceiling still applies, and the judges can still, and do, give adequately harsh sentences. No one anywhere, except possibly in the United States, thinks that prisons are the answer to the crime problem. Again, in the background information on this, it acknowledges the need to build prisons.

What I would argue we need to do is pay more attention to research being carried out in Toronto and elsewhere. The focus should be on resources and working with the communities where gun violence is prevalent.

Resources should focus on taking seriously what guns actually mean to the mainly men who use them. Money that is seemingly being designated for prison-building and the corporate entities that profit from that exercise should be turned back toward the communities. There should be a focus on funding policing, which has already claimed significant successes in helping make our communities safer and more secure, which has happened without this kind of legislation in place.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you.

Given that Mr. Trudell and Mr. Rady are both in the same organization, is one or the other going to present, or had you both planned to present, keeping in mind that we've got only an hour?

[Andy Rady, Ontario Representative on the Board, Canadian Council of Criminal Defence Lawyers]

We've kept that in mind. I think we're both going to make brief speeches.

[The Chair, Conservative, Art Hanger]

Very good.

Bill.

[William Trudell, Chair, Canadian Council of Criminal Defence Lawyers]

Thank you very much, sir.

Members of the committee, the Canadian Council of Criminal Defence Lawyers is very grateful for this invitation. We have been here on many occasions throughout the years, and I wanted to say, on behalf of our organization, that we feel that this committee, the justice and human rights committee, is probably the most important parliamentary committee working today in Ottawa. We don't just say that because we're criminal defence lawyers. We say that because you have enormous work that has been presented to you.

Our position is this: The government has sought to introduce a number of pieces of legislation, and they may be right, but there has been a lack of consultation. Historically, when bills are introduced, there is a considerable thorough lengthy consultation process that occurs with members of academia, with the police--not only local police forces but the RCMP--and with all the stakeholders, including and sometimes most especially victims. That has not occurred, in our respectful submission, in the case of this bill and of some of the other legislation that we have already been here on and that we anticipate you'll invite us back on.

What's happening here is that, with great respect, the government is downloading on this committee, and this committee is being asked to study bills, to call in persons, and do the work that normally would have been done in the normal course of events. I don't know whether that's because there's a legislative agenda. I don't know whether that's as a result of a minority government. But the bottom line is that it means that you are so important because the results of the decisions you make here will be with us a lot longer than any members in this committee, any testimony of persons who come before you, the Prime Minister, the Minister of Justice. You're talking about changing legislation that will live for a long time.

So we say to you--and I don't mean to be trite--you need the courage, whatever party you're from, to say you're not satisfied that you know whether this bill is going to change things, and to not react to political statements, because you're changing the laws of the democratic process. So if you are not satisfied--and I don't know how you could be satisfied yet--that you've heard enough on the background, that you've looked at the costs, that you've consulted widely, you cannot pass this bill, in our respectful submission.

It is very important, with great respect, that politics be put aside. We know that this bill may have become a catalyst as a result of a terrible shooting that occurred on Boxing Day two years ago. All parties may have supported something at that point in time, but all parties did not support the lack of consultation, and that's what needs to be done here. We ask you to continue to do it.

Mandatory minimum sentences accomplish one thing. They remove the offender and put him in jail. Yes, perhaps that offender cannot offend again for the period of time that he or she is incarcerated. That's presuming, of course, that the offender would offend. That's something the courts will look at in deciding what the sentences are, because we know that if you put that offender away--you've heard it before this morning and probably from other people--there's no money for the treatment that this person is going to need. Separation is not the basis of criminal justice, and that's all that mandatory minimums accomplish. There are lots of ways you can send a message out to respond to what may be perceived as a problem in big cities or elsewhere.

I want to say something else before I finish with this. The guns and gangs response, the big city problem, is not the same as the problem in the Northwest Territories. It is not the same as the problem in northern Saskatchewan. It is not the same as the problems in Manitoba. So when you impose minimum sentences, it affects everyone.

James Mahon, who is our representative from Yellowknife, sent this to me and asked me pass it on to you:

Another effect that must be considered is the disproportionate effect that custody may have on different demographic groups. This consideration was addressed in the Supreme Court of Canada's decision in Gladue. This concern is even more apparent in northern aboriginal communities. A penitentiary term of custody in the Northwest Territories means incarceration in a federal facility in southern Canada. There is almost no possibility for any contact from family if an offender is “sent south”. Many families simply do not have the means to visit incarcerated persons in southern Canada. Base airfare from Yellowknife and Edmonton, in the range of $1,000 or more, makes a visit impossible, particularly for those of limited means or those that live in remote areas. In southern Canada, distances are shorter, and prisoners do not the face the complete severance of contact with family. I note that our Territorial facilities provide culturally relevant programming to our Aboriginal offenders. This rehabilitative tool would be lost in most southern facilities. Except for the capital of Yellowknife all of the communities are small, most under 1,000 persons, with large portions of those populations being Aboriginal. To house these persons in southern penitentiaries without the ability to address their personal circumstances completely turns away from any contemplation of rehabilitation and puts the focus of our criminal justice system back on punishment.

We have had the same comments from Manitoba, New Brunswick, Saskatchewan, and Alberta, in terms of this bill and the effect it has across the country.

I want to end by saying that we do not support this bill. We feel that if you took the time to seriously study it, being very careful, you would not pass it.

You are the legislators. If you, in your wisdom, decide that this bill has to be passed, we can help you with due process. We don't pretend to know whether this bill should be passed. That's your job.

If you decide to proceed, then the Canadian Council of Criminal Defence Lawyers suggests that there be an exception provision. In the principles of sentencing enshrined in section 718, one of the sections, 718.3(2), says the following:

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.

We ask you to consider the following amendment:

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, the particular needs of the community and the interests of the accused in all of the circumstances.

If you feel this bill has to pass, and you put in this exception provision, you respect the judges. First of all, you see the message, that there should be minimum penalties, but you respect the judges to do their job. You have respected the public interest. You have respected the particular needs of the community to reflect Gladue, our aboriginal Canadians, and of course the individual interests of the accused.

That exception provision covers a lot of the criticism that you will face. It recognizes regional disparity. It's not just a big city crime bill. It gives the judges the message, but it allows them to do their jobs. It reflects the particular community.

Thank you very much.