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.