Justice Committee on Nov. 27th, 2006

[The Chair, Conservative, Art Hanger]

I'd like to call the Standing Committee on Justice and Human Rights to order. In our agenda, we're still on Bill C-10, an Act to amend the Criminal Code (minimum penalties for offences involving firearms).

We have quite an august group of witnesses here today. Many have undoubtedly testified before the committee. It's good to see you all.

From the Canadian Police Association, we have Tony Cannavino, and you have Mr. David Griffin with you. Hello.

As individuals, we have Mr. Ian Lee of Carleton University; Lee Stuesser of Robson Hall, University of Manitoba; and Paul Chartrand, professor in the College of Law, University of Saskatchewan. Thank you all for being here.

I know, Professor Lee, that you wanted—and maybe it's a good idea—to proceed with the presentation you have. You have a PowerPoint presentation.

If you would begin, Professor, that would be fine.

[Prof. Ian Lee, Professor, Carleton University, As an Individual]

Thank you very much.

I'd like to thank the chair and honourable members for inviting me here today before your committee. It's a real honour, and I appreciate it. And I hope it will be lively.

I'm going to be talking about what I characterize as the three urban legends. I'm using that term—this will come out during the presentation—because of my very public frustration with the Department of Justice ministry and the Public Safety ministry concerning a very important and serious literature called the Journal of Law and Economics.

I'll run through some of these very quickly. The first urban legend—and I've seen it quoted in Jeffrey Simpson's article earlier this year in The Globe and Mail, as well as in Dan Gardner's article in the Ottawa Citizen—is that violent crime is down in Canada. This is factually, statistically, and actually not true.

The slide being shown is from Statistics Canada, starting in 1962. I chose 1962 for a reason. I'm in the middle of the baby boom generation. In 1962 I was 10 years old. I remember 1962 and afterward very vividly. We could do things at that age—at 10, 11, or 12 years old—that we can't do today.

This is from Statistics Canada. The crime rate per 100,000--so we're not playing games with the absolute population--has gone up from 221 crimes per 100,000, and these are violent crimes, to 943 in the past 40 years, in my lifetime, the lifetime that I can recall and remember.

The second urban legend is dealing with the law and economics research program. I just want to speak to it very briefly. The law and economics research program is centred at the most prestigious universities in the world--Stanford, Carnegie-Mellon, Yale, Princeton, Harvard--and it was pioneered by a person called Gary Becker, who won a Nobel Prize about 10 years ago. There are about four Nobel Prizes that have been issued in this area called law and economics. This is a very serious and very highly respected research area. Gary Becker earned his Nobel specifically dealing with crime and punishment. The other three Nobels were in the law and economics area, but not dealing specifically with crime and punishment.

There is a certain researcher. I've quoted him extensively. His name is Steve Levitt. He's under the age of 40. He won the very prestigious Bates Medal for the most brilliant economist in the United States under the age of 40. He has published over 60 academic articles, which most academics will not publish in their lifetime. On top of that, Time magazine this year said he was one of the 100 most influential people in the world. He has published in journals of quantitative criminology and he has published some extraordinarily impressive research. This is one of the articles, as you can see, in front of you.

Why I'm talking about incarceration as urban legend two, before I go to MMS, is because it is the broad case. MMS--minimum mandatory sentences--are simply a special case of incarceration. To put it another way, if incarceration doesn't work, then minimum mandatories cannot work by definition--logically they can't--because it's a subset of incarceration. So this data set was interpreted and analysed by Steve Levitt in a series of articles published in some of the most important journals in the world, and he came to these conclusions. I would draw your attention to the third paragraph especially: “...the increase in incarceration over the 1990s can account for a reduction of about one-third of the observed decline in crime.”

In fact, in another article he did, analysing the reason for the very dramatic decline in crime in the 1990s, he came up with four reasons: first was incarceration, which accounted for one-third of the decline; second was the legalization of abortion, which accounted for one-third of the decline, approximately; third was the waning of the crack epidemic, which is 10%; and last, the increase in the number of police on the ground.

That brings us to the third minimum mandatory. Dr. Joanna Shepherd is a brilliant young researcher who is both a professor of economics and a professor at a law school. She has a double appointment. She has undertaken the most comprehensive analysis of minimum mandatory sentencing, studied in California, and she concluded that they decreased murders by 16%, aggravated assaults by 12%, robberies by 24%, rapes by 12%, and larcenies by 3%.

I'm going to skip over this because I really do want to make sure I have enough time in the ten minutes to get to my final set of points, which we can talk about later, concerning the California three strikes law. I would just caution you to note that there is a lot of mythology about the three strikes. One of them is, you can go to jail for stealing a pizza three times. This is not true, because the first and second strike is reserved for only violent crimes. The third crime can be any crime, but the California three strikes law requires that the first and second strikes be serious acts of violence. Again, this shows the data. We can talk more about it later.

Florida has come up with a similar law called 10-20-life, which again is a minimum mandatory. You can see up there the three years, ten years, twenty years, and then life. Again, this shows the statistics from the Government of Florida Statistical Analysis Center, which has stated that it reduced crime by 50% during the period that it has been in effect.

I'm shifting gears now to Canada, to the changing role of the Canadian federal offender. The CSC, the Correctional Service of Canada, has published a lot of empirical, statistical information over the past four or five years, and the commissioner, Dr. Keith Coulter, has given several speeches. The reason I want to emphasize this is that the profile of our offenders has changed very dramatically. They are much more violent today than 10, 15, or 20 years ago, and they are there for much shorter periods of time on average. These are statistical numbers from the CSC, not my interpretation. You can see the numbers there: nearly 50% of offenders have served a prior youth sentence; 75% of offenders in our jails are now there for violent offences; one in four are sentenced for homicide; 1,000 for first-degree murder; and one in six are affiliated with gangs.

This shows up in the statistic from Correctional Service Canada, showing that 70% of federal offenders are there for a violent offence. This is a statistic, which I hope everyone takes a very close look at, showing the average time actually served for a given sentence.

Sorry?

[Marc Lemay, Bloc, Abitibi—Témiscamingue, QC]

That's too quick: the interpreters can't follow.

[The Chair, Conservative, Art Hanger]

The translation is not keeping up.

[Prof. Ian Lee]

Okay, sorry.

I can go?

[The Chair, Conservative, Art Hanger]

Yes, please.

[Prof. Ian Lee]

This graph shows three different sentences: someone convicted and sentenced for between two and three years, between three and four years, and between four and five years. What it shows is that the average actual time served is 15 months for a person sentenced for two to three years and approximately 18 months to 20 months for the three- to four-year sentence.

That leads to my final point, which is based on some data I obtained from the Auditor General's report, but then I went beyond this and did some numbers. If the average offender is in a federal institution for three years, they serve only 15 months, according to the CSC data. The average rehabilitation program requires seven months for a high-intensity or violent offender, and on average they need three to rehabilitate. The person is only in a federal penitentiary for 15 months, but it takes 21 months to rehabilitate that person. What this means is that we are releasing people who have not yet been rehabilitated, violent people, back into the Canadian population.

This is really a graph, which I'm sure everyone has seen. It's the dangerous offenders designation, but it supports what I was saying earlier. There's a very small number designated each year.

This leads me to my final slide. Violent offenders need more time, not less, for rehabilitation. In fact, we are not rehabilitating them fully, because they are getting out prematurely—that is, before they are rehabilitated. The outcome is more dangerous communities. The evidence for that statement is the increasing crime, per Statistics Canada, between 1962 and today.

So my conclusion is that we need minimum mandatory sentencing to ensure that the rehabilitation takes, which many people today claim is the purpose of sentencing a violent offender.

I thank you for your attention, and I will be more than willing to take questions afterwards.

[The Chair, Conservative, Art Hanger]

Thank you very much, Mr. Lee.

I'm sure we're going to be coming back to some of those slides over the course of the afternoon.

Representing the Canadian Police Association, we have Mr. Cannavino.

[Tony Cannavino, President, Canadian Police Association]

Thank you, Mr. Chair.

Mr. Chair, committee members, good afternoon.

The Canadian Police Association welcomes the opportunity to present our submissions to the Standing Committee on Justice and Human Rights with respect to Bill C-10, An Act to amend the Criminal Code (minimum penalties for offences involving firearms).

The CPA is the national voice for 54,700 police personnel serving across Canada. Through our 170 member associations, CPA membership includes police personnel serving in police services from Canada's smallest towns and villages as well as those working in our largest municipal cities, provincial police services, members of the RCMP, railway police and First Nations police associations.

The Canadian Police Association is acknowledged as a national voice for police personnel in the reform of the Canadian criminal justice system. Our goal is to work with elected officials from all parties, to bring about meaningful reforms to enhance the safety and security of all Canadians, including those sworn to protect our communities.

Urban violence has been a significant concern for our association. For over a decade, police associations have been advocating reforms to our justice system in Canada, and in particular we've called for changes to bolster the sentencing, detention, and parole of violent offenders.

At our 2004 annual general meeting, CPA delegates unanimously adopted a resolution that includes a call for federal legislation to be introduced to ensure tougher and more adequate mandatory prison sentences for individuals involved in firearm-related crime.

Repeat offenders are a serious problem. There's been considerable debate at this committee about the use of minimum sentences and the frequency of repeat offenders. Make no mistake about it: repeat offenders are a serious problem. Police understand this intuitively, as we deal with these frequent flyers on a routine basis.

Statistics released by the Toronto police homicide squad for 2005 demonstrate this point. Among the 32 people facing murder or manslaughter charges for homicide in 2006, 14 were on bail at the time of the offence, 13 were on probation, and 17 were subject to firearms prohibition orders. The revolving-door justice system is failing to prevent further criminal activity by these repeat violent offenders.

Gun violence requires a non-partisan approach. Support for tougher measures to thwart gun violence transcends party lines. During the last federal election, three major parties promised tougher sentences for crimes involving firearms. The NDP platform promised to “Increase the mandatory minimum penalty for possession, sale and importation of illegal arms such as hand guns, assault rifles and automatic weapons”, and “Add mandatory minimum sentences to other weapons offences”, including a “four-year minimum sentence on all weapon offences, such as possession of a concealed weapons'”.

Former Prime Minister Martin promised to toughen penalties “by re-introducing legislation to crack down on violent crimes and gang violence, by doubling the mandatory minimum sentences for key gun crimes”. Former Liberal Justice Minister Irwin Cotler introduced Bill C-82 in November 2005 to address gun violence. Bill C-82 would include increasing certain minimum penalties relating to smuggling, trafficking in, and possession of firearms and other weapons, and creating two new offences, breaking and entering to steal a firearm and robbery to steal a firearm.

When Bill C-10 was introduced this spring, Premier McGuinty was quoted as stating that the bill will “make a real difference when it comes to promoting safety for our families and our communities”. Last year, Conservative MP Daryl Kramp introduced a private member's bill, Bill C-215, that would require that a sentence for commission of certain serious offences be supplemented if a firearm is used in the commission of that offence.

A justice department survey conducted in March 2005 by Decima Research confirmed that an “overwhelming majority” of Canadians support mandatory minimum jail terms for gun crimes such as robbery with a firearm and criminal negligence causing death with a firearm. According to CanWest news, the poll of 2,343 Canadians revealed that “Support for mandatory jail terms for robbery with a firearm was as high as 82%, compared with 14% who opposed the prospect”.

Similarly, an Ipsos Reid CanWest Global poll conducted December 30, 2005, to January 2, 2006, of 8,336 Canadian voters found that 73% of the respondents supported changing the current laws so that being convicted of committing a gun crime would carry a mandatory 10-year prison sentence with no eligibility for parole or early release.

Clearly, there is broad political and public support for tougher measures to deal with firearm crimes. We urge Parliament to move swiftly to address the areas of consensus as quickly as possible. The CPA supports in principle the measures contained within Bill C-10 with necessary modifications.

On amendments, although the CPA supports the vast majority of proposals contained within Bill C-10, we do have one significant area of concern. It relates to the proposal dealing with the use of firearms in the commission of attempted murder, discharging a firearm with intent, sexual assault with a weapon, aggravated sexual assault, kidnapping, hostage-taking, robbery, and extortion.

Bill C-10 contemplates a tiered response. Offenders who commit these crimes, whether with a restricted or a prohibited firearm or any firearm in connection with a criminal organization, are subject to escalating penalties—five years for a first offence, seven years for a second offence, and ten years for a third or subsequent offence. Conversely, if the firearm is not used in connection with a criminal organization and the weapon is not restricted or prohibited, the mandatory minimum sentence is only four years, regardless of whether it is a second, third, or subsequent offence.

We find the different treatment for long guns to be misguided, and we are at a loss to understand the rationale for distinguishing the penalty on the basis of the class of firearm that is issued by a person in the commission of a very serious crime. Police officers routinely discover these weapons in firearms seizures, clandestine drug labs, and marijuana grow-ops. Will shotguns and rifles become the weapons of choice for repeat violent offenders? In many situations, a rifle or shotgun is a far more lethal threat in the hands of a criminal than a handgun.

For example, high-powered rifles are capable of shooting through body armour and other protective equipment. Shotguns can be extremely powerful weapons when used at short range. A tragic example is the murder of Constable Valerie Gignac of Laval last fall, who was shot through a wall with a high-powered rifle. Of the 13 police officers killed with firearms in the past decade, only three were murdered with handguns; 77% were murdered with long guns, and it's unlikely that any of the offenders in these cases would have met the threshold for participation or membership in a criminal organization.

This latter threshold of connection with a criminal organization also presents an additional hurdle for prosecutors to prove in order to obtain the higher mandatory penalty. While we applaud measures to deal proactively with criminal organizations, we contend that any person who uses any firearm in the commission of an offence should receive the full mandatory minimum penalty available, and particularly repeat offenders.

The recent tragedy at Dawson College in Montreal has reinforced the need to strengthen Canada's control over civilian firearms possession. To our knowledge, no new firearms have been added to the restricted or prohibited categories in Canada for over a decade, yet many new firearms have been designed that are being offered for sale in Canada and would arguably meet existing criteria. As a consequence, some weapons are being legally sold in Canada despite the fact that they meet existing criteria for restricted or prohibited status and present significant concerns for public safety.

Retailers understand and exploit these loopholes, as demonstrated by the website for Wolverine Supplies in Manitoba. You'll find that in our brief. We submit that further steps must be taken to close the loopholes by updating and maintaining the restricted and prohibited firearms classifications.

In conclusion, I'll say that one of the concerns of police officers across the country is to stop the violence. The solution to this begins with bringing an end to Canada's revolving door justice system. Canada's police officers have lost confidence in a system that sees violent offenders regularly return to the streets. We need to restore meaningful consequences and deterrence in our justice system, which begins with stiffer sentences, real jail time and tougher parole eligibility policies for violent offenders. We need stiffer minimum sentences for offenders who commit crimes with guns, or any type of weapon.

Bill C-10 provides a positive component in an integrated strategy to address current shortfalls, specifically pertaining to the concern with gun violence. We believe that it can provide an effective deterrent against violent gun crimes, and we fully endorse the principle of creating tougher mandatory minimum penalties for the commission of serious offences involving the use of a firearm.

We thank you for your attention and we welcome your questions.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Cannavino.

Now to Professor Lee Stuesser.

[Prof. Lee Stuesser, Professor of Law, Robson, Hall, University of Manitoba, As an Individual]

Thank you, Mr. Chairman.

I want to first of all thank the committee for inviting me to appear this afternoon. It's my honour and privilege to do so.

I don't represent any association. I don't represent any lobby or interest group. I'm simply a law professor who has been teaching criminal law, evidence, and trial advocacy for the past 20 years. Hopefully, I can assist you with some of my experience.

I'd like to start with two fundamental principles in criminal law: clarity and fairness. The law has to be clear and it has to be fair. In my written submission to you, I point out that there are two problems with Bill C-10. I think there is a problem with clarity and a problem with fairness. I've provided two suggestions on how to make the law clearer and fairer.

First of all, I'd like to turn to the issue of clarity. Actually, it builds upon something the last speaker was talking about. In my view, Bill C-10, as it now stands, is unduly complex, and it will in fact be unworkable in practice. In fact, if Bill C-10 is put into law, you may well be creating a loophole for those who do use firearms in the commission of offences. That's my primary concern: the issue of firearms in the commission of offences. I think what you simply need to do is to simplify the law. Make it simple. Use the existing wordings in the Criminal Code.

I want to illustrate this with some examples. Let's assume we have an accused who robs a store. He has a shotgun, which isn't that unusual. Let's say the Crown can prove identification, which isn't that easy, but they can. Well, once they have identification, they also see that he has a prior record for violent offences using firearms. You'd think we'd now be triggering the second offence mandatory minimum of seven years. Will it apply? No. When you look at your triggering mechanism in Bill C-10, it requires that the weapon either be restricted or prohibited--a shotgun is neither--or that this person is a member of a criminal organization acting for the benefit of or at direction of the criminal organization. Quite frankly, good luck. That's very difficult to prove. In the absence of that, you have the residual, which means the four-year minimum. We can prove that he used the shotgun. We can see that. We have witnesses to that. We can prove identification. But this will not trigger the legislation.

Take another example. A woman is sexually assaulted at gunpoint. She's traumatized by it. When she's asked to describe the weapon, she has difficulty. She can't tell whether it's a handgun or a rifle or a shotgun or anything. She knows for darn sure that there was a gun and that she was sexually assaulted. We have DNA that shows the perpetrator. We have him. We can identify him. Will we trigger the second or third offence? Say, for instance, we see that he has prior offences for violence. Will it be triggered? No, it won't. She won't be able to tell us whether this is a prohibited or a restricted weapon. If she can't, you then have to try to prove that he was a member of a criminal organization doing a sexual assault for the benefit, direction, or association of the gang. Good luck, again. It's not going to happen.

Let's take a third one, a drive-by shooting. A person is shot. He was driving down the street, a car drove up, and someone shot him. We see that it was a .22 calibre. We have our forensics that can identify that. But can they identify that it's a .22 handgun? Or is it a .22 long rifle? If you can't prove that, you're not into the second or third strikes. You're back to the residual four-year, where we are now.

Here's the simple question I have for the members of the committee. If your intention is not to have those individuals punished with the second or third strike, then ignore what I have to say. But I would venture to say that your intention is that those people should be caught by the legislation the second or third time, and that's where I urge the committee to go back to simplicity.

In my written submission, I compare the wording in Bill C-10 with the existing wording. Isn't the concern firearm violence? Isn't that the fundamental concern? And if your answer to that is yes, then does it matter that the rapist or the robber used a handgun versus a long rifle? I think the answer is obvious—it's no.

Given this added complexity, I will tell you what crowns will do: they will not charge using your two or three strikes legislation; they will not. They will charge using the residual. Why? Because that is the course of least resistance.

You are giving me, a former defence counsel, an argument to raise in court with this legislation. You are giving me a means to negotiate out of two or three strikes with the Crown, because they're going to have real difficulty proving a criminal connection. My guy may well have been a gang member, but he was freelancing, and that means it doesn't apply.

So I urge the committee, there is nothing wrong with the existing wording. It has been around for over 10 years, since this Parliament passed the mandatory minimums for these intentional crimes, and I urge the committee to go back to simplicity. I think you will find that it will be workable. As drafted, the bill is, in my view, unduly complex, unnecessary, and, quite frankly, it will constitute a loophole.

I've got a second concern, the issue of making the law fairer. I don't care what anyone says—and you've no doubt been told this—mandatory minimum sentences are a blunt instrument. They remove discretion and they make all offenders subject to the same minimum. Some people are unfairly caught. Some people should not receive the mandatory minimum; they are caught. Some might say that's the price of justice, that's the price of using a firearm, but I think most countries who have introduced mandatory minimums have recognized that there needs to be some discretion.

When I look at the types of crimes where, in my view, people ought not to receive the mandatory minimum, there are two types of crimes committed. They are criminal negligence causing death and manslaughter. Both now have the four-year minimum—and, incidentally, they are not part of Bill C-10.

What I urge the committee to do is to consider discretion for those types of unintentional deaths arising from firearms. I want to give you two simple specific examples that occur on, I hate to say, a regular basis, but very routinely.

We've got the police association here. Let's deal with police officers, who have weapons. Let's assume we've got a police officer in a volatile standoff. The officer thinks he hears a gunshot. The officer panics and uses a weapon; he fires in return and kills someone. He ought not to have fired. He was mistaken; he panicked. He may well be charged, because we expect our police officers to be well trained and to be restrained in their use of firearms. He may well be charged with criminal negligence causing death, and he would then be subject to the four-year minimum sentence. I'm not sure what the views of the gentlemen to my right would be on that, but I can give you cases where this has indeed been the situation.

I give you another common situation from one of the first cases I was involved in when I was a young man. It dealt with a middle-aged woman. I remember the case well because it wasn't that often we had a truly innocent person, if you like, we were defending, so it stuck in my mind. She had blasted her husband away with a double-barrelled shotgun at close range with both barrels. It didn't look good. She was charged with murder. When we started to investigate, though, we found that the husband had been abusive. We found as well that he was a drinker, and we found that he loved his guns—and he had guns all over the place. He would routinely take those guns and threaten her and her family. She got so fed up one day, she picked up the shotgun—and she didn't have any idea if it was loaded or not—and pointed it at him and said, how do you like this? How do you like this? And bam, the gun went off because it had a hair-trigger. When the first barrel went, the second one discharged too. And she was devastated.

She was convicted of manslaughter. We got it reduced from murder, but she was convicted of manslaughter. At the end of the day, the sentencing judge gave her a suspended sentence. Members of the committee, that was a just and fair sentence for that woman.

The problem with criminal negligence and manslaughter charges is they are so broad, they catch people who unintentionally kill with firearms. Now, you might say, what does that have to do with Bill C-10? Well, if this committee or Parliament were to look at an exceptional discretion for criminal negligence and manslaughter offences, I would think it would show three things. First, it would show that Parliament has turned its mind to be firm but fair. It would recognize where the vast majority of fairness cases would arise. Second, it would provide a simple mechanism for people like the woman I represented to seek a just sentence. Right now, she would have grave difficulty doing so; she'd have to challenge the legislation under the charter or seek a constitutional exemption. And here's a third reason. It would show the distinction between unintentional and intentional crimes. Bill C-10 is concerned with intentional crimes.

Quite frankly, here's what my argument would be. If Parliament had a discretion for unintentional crimes, it would actually reinforce the point that when you use a firearm for an intentional crime—attempted murder, robbery, or whatever—Parliament has indicated there is no discretion. It would, if anything, make your mandatory minimum, in these types of crimes in Bill C-10, charter-proof.

I simply point that out to you. In my view, the vast majority of cases involving unintentional killings is where you have a disproportionate sentence.

Members of the committee, those are my concerns and my suggestions. I look forward to your questions.

Thank you for listening.

[The Chair, Conservative, Art Hanger]

Thank you very much, Professor.

Now we'll go to Professor Chartrand, if you would, sir.

[Prof. Paul Chartrand, Professor, College of Law, University of Saskatchewan, As an Individual]

Thank you, Mr. Chairman.

My name is Paul Chartrand. I teach law in the College of Law at the University of Saskatchewan.

I thank the committee for inviting me. I am here at the invitation of the committee. I belong to no political party. I have never belonged to any political party. The views I will offer are based on my experience, which includes being involved in the production of some reports and recommendations on criminal justice policy, particularly pertaining to aboriginal peoples. I cite in particular my service as a commissioner on the Royal Commission on Aboriginal Peoples, and also more recently as a commissioner on Manitoba's Aboriginal Justice Implementation Commission.

I am here at your invitation and I view my participation here as a matter of my contribution to public service.

As legislators, you have a high duty and responsibility to protect society. Whatever can be done to make our community safer, including reducing the use of firearms, is a good thing and you ought to do it. We all deplore and denounce the use of firearms in the commission of crimes. However, the matter of sentencing and the matter of administration of criminal law is fraught with emotion and complexity.

We must recognize that there are no easy solutions to complex problems. In fact, I always advise my students to be very wary of those who offer simple solutions to complex problems. I can give you examples of the danger they pose to society.

I presume that all of us wish to legislate in such a way as to promote a just and tolerant Canada. Let me ask, then, with respect to Bill C-10, is minimum mandatory sentencing a legitimate means to address the problem? My answer is no.

A second question is, will minimum mandatory sentencing work? The answer again is no.

Let me elaborate in the short time I have. It is not a legitimate means for the following reasons. First, it is arguably contrary to the law of the Constitution. Second, it is demonstrably in conflict with Canada's obligations under international human rights treaties. I cite among others--and I will elaborate if there is sufficient time in the question period to follow--the International Convention on the Elimination of All Forms of Racial Discrimination with respect to aboriginal peoples.

Mandatory minimum sentencing is unprincipled. It clashes with the fundamental principles of our criminal justice system. In fact, mandatory sentencing is an oxymoron. After conviction, the process of sentencing seeks to address the degree of blameworthiness. If you have seven people committing the same offence, you are faced with potentially seven different degrees of blameworthiness. All that is removed by a minimum sentence.

A very quick example is taken from a case involving an aboriginal man who used a rifle and was subjected to one of these mandatory minimum sentences. He used his rifle in defending himself against a criminal gang in his community. He didn't like gangs, but he had a rifle--he belonged to a hunting community--and he faced the mandatory minimum.

Let me go on and emphasize why mandatory minimum sentences do not work, notwithstanding what has been proposed to you by Professor Ian Lee. When I say this, I'm relying mainly on the literature that I read and on my being briefed by Canada's and other places' top criminologists, lawyers, and practitioners who work in this area every day. I must say I'm not aware of the work of Professor Lee from the School of Business at Carleton in this regard.

Why will it not work? First, it will create a much more expensive system. True, it's a political easy fix because you don't need to attach a budget to this particular legislation, but it will cost a lot on the road. All the statistics point to that. It will be tremendously expensive, and if you ask questions later on on this, I will elaborate on why it has become more expensive. First of all, I think it costs roughly $80,000 a year to keep people in jail. Obviously, if you're going to put more people in jail, it will cost you a lot more. If you set a minimum, and if judges do try to ignore what I suggested, that it's an oxymoron, then they will take the minimum to be applicable to the best offender and all the sentences will go up, ergo the costs will increase. You cannot avoid that. It will be horrendously expensive.

My next point is that it will not work, because presumably you're trying to create a less dangerous society. An earlier speaker suggested that we need harsh sentences. We have a lot of experience in the use of harsh sentences. We can cut off their hands. We can jail them forever. We can use steel pincers to pull out the flesh and pour molten tar into the wounds, which are examples of the harsh punishment that has been meted out to offenders in the past. These are historical examples. If you want to be harsh, there are many ways of doing that very effectively, but it does not work. You create a more dangerous society.

Usually people are inclined to look at the people going into jail. As you will hear with these minimum sentences, they ought to go to jail; they have to go in. So you're looking at the front door and then you don't look at what goes on inside. Essentially, I suggest to you that you're telling people to go to hell. You want to ignore them because there the place is hell.

I submit there's no evidence to support the previous contention that you need longer sentences to allow for rehabilitation. That proposition is based on the assumption that there is rehabilitation. Instead of looking at the front door, at who goes into the jail, I invite you to go and have a look at the back door. Who comes out? Every day criminals are sentenced and come in the front door, but every day criminals come out the back door. If you think you're sending dangerous people to jail at the front door, think of the kind of people you're letting out the back door. Send a 20-year-old—

I ask you when you're contemplating enacting legislation like this, think about Canada and jailing Canadians. Think of a recipient of those kinds of sentences as your son, your grandson, or your niece. They're human beings. They will come out tougher criminals. In jail they will get sodomized. They will become heroin addicts. Those are the kinds of things that happen there. They will be harsher and tougher. Being tough on crime actually results in creating and manufacturing tougher criminals. It seems to me if society can live with the people who get out the back door, surely you can live with most of the ones who go in the front door.

Finally, I want to say that aboriginal people are incarcerated...in statistics that are disproportionately higher in comparison to other people.

This will create tremendous social disruption and problems, not only for aboriginal individuals, their families, and their communities, but for the provinces. In effect, the federal government will be off-loading a lot of the costs onto the provinces, particularly the western provinces, like Saskatchewan and Manitoba, that have very high aboriginal populations. I think there are statistics that suggest that something like over 500 aboriginal people were sentenced last year. If they were subjected to this mandatory minimum sentencing, you'd have 500. So multiply 500 times 80 and so on and you get the statistics.

I want to conclude my presentation by suggesting that these complex problems can only be fixed in a holistic way. Holistic is realistic, but it's very difficult. You have to attack the root causes of crime. These are not easy to sell politically or in 15-second sound bites. The evidence all shows us--and I've been briefed on this--that you can tell when a child is about seven years old whether that child is going to go to jail. And Indian people who become reserve residents have way more probability of going to jail than of going to university.

So the way to combat crime is to combat the root causes of crime: assist children, have children's benefits, assist families, have community services and recreation, and so on. I can give you statistics on that. The Manitoba Northern Fly-In Sports Camp that the RCMP conducted some years ago would be an example of that. But the federal government can't do it alone. You would have to work not only with the provinces but with the municipal governments as well.

It's very easy to just adopt an easy fix like minimum sentences, but they're neither legitimate nor do they work. I ask members of the committee not to adopt Bill C-10, because this kind of legislation will create not a more tolerant and just Canada; it will create a meaner and nastier Canada, and I wish that my little granddaughters would not live in a meaner and nastier Canada.

Thank you very much

[The Chair, Conservative, Art Hanger]

Thank you very much, Professor.

Now we'll go to the questions.

Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

Thank you, Mr. Chairman.

I want to thank the witnesses.

Professor Chartrand, I know that my colleague, Mr. Bagnell, will be keying in on your testimony, so if I pass you over on this round, please don't be offended.

It seems that when we discuss this matter, we're all I think on common ground: we want to make the laws of Canada more effective and make our communities safe. We have, however, some debate from time to time on the best tools to use. We were fortunate last week to hear evidence from the chief of police of Toronto, and in the same week here in Ottawa we heard evidence from a ranking RCMP officer charged with community safety--the chief superintendent, in fact.

There's a common theme between that bit of testimony and Mr. Cannavino's testimony on behalf of CPA, and I think Mr. Stuesser said this as well--and it goes to amendment time down the road, which we should all keep in our minds--in that distinguishing between the types of firearms used is really no way to deal with this matter. If we are going to talk about mandatory minimums, there seems to be fairly consistent evidence that we should consider crimes done with all firearms. I invite members of the committee to take that, whatever page you want to come from politically, as the overwhelming testimony.

The big question I have, and it's arising from the testimony, is that what seems to be missing here, and I would commend this to Mr. Lee and other members of the subcommittee, Mr. Chairman, is that we really haven't had sufficient evidence on what happens to the offender when he or she is in the prison system, or the system.

I'm quite struck by Mr. Lee's very emphatic--I'm not necessarily saying I agree with it all--evidence that the course of rehabilitation is not completed during a short sentence. You don't have a footnote to back that up. I'm sure you can give us the facts on that or elaborate briefly when I'm finished this questioning. But it does strike me that we have to examine what happens to offenders when they're in the prison system. There's quite a bit of anecdotal evidence that it's education for higher learning in crime, it's a rehabilitation model, or it's a model for further criminalization. What do we get out of the process when we put somebody away? What do we hope for and what do we get? So there's very much a gap in our testimony here.

I'll start with you, if I may, Mr. Lee. What is your basis for saying that the rehabilitation is not complete in one or two cycles? Are you suggesting that if 21 months were the standard sentence, everybody would come out rehabilitated? Surely you know that there are studies that suggest that some people are not rehabilitatable.

[Prof. Ian Lee]

Thank you for the question.

I just want to step back for one moment to address your question and remind everyone here of the Canadian Sentencing Commission of 1988. It identified the different reasons, or principles, as they called them, for sending someone to a federal penitentiary.

Because my memory's not perfect--I am getting older--I can only remember five of the six, but someone might remember the sixth one for me. They were just desserts, retribution, deterrence, incapacitation, rehabilitation, and I think the sixth was to send a message or something like that.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It's denunciation--section 718 in the Criminal Code. We've been at it for a few months.

[Prof. Ian Lee]

Thank you.

They did not judge that one was superior to another. I argue in this article that is being published next spring that it's a philosophical choice that you, the parliamentarians, must make. Which principle do you wish to emphasize? I certainly wouldn't presume to tell you.

In the debate and all the literature, there seems to be an extraordinary emphasis on rehabilitation. So I piggy-backed on that assumption and said, okay, there seems to be an emphasis on rehabilitation in the Department of Justice, in a lot of the research on their website on public safety, and in the literature published by criminologists. So I took that as the assumption.

Now to deal with your point, the data I used is from published documents on the public record from Correctional Service Canada. I draw your attention to the safe return document. I have all the stuff electronically on this laptop, including some 400 articles dealing with this broader subject. So the data is from the safe return document and the statistical overview document from Correctional Service.

What triggered my approach--and this is again from memory, but it's in this computer--was that in 1994, 1996, 1999, and 2004, the Office of the Auditor General of Canada looked into this question. It's a kind of obvious question. If we are sending people to federal penitentiaries, how long does it take to rehabilitate them, given that a lot of people agree that is the purpose? So this data I quoted you is from two or three of the documents. I can give you the precise citations after, if you wish.

The safe return document and the statistical overview are the two that stick in my memory at this moment.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

It seems to me you're suggesting that even if it's a seven-month sentence, the person should be in for 21 months to be rehabilitated. But I'll read the documents on safe return. Thank you.

To Mr. Cannavino, on blue-skying, we asked the chief of police of Toronto about this. What we have seen recently in the statistics is a sharp increase in gang-related violent crime, particularly with handguns--homicides and so on. There's no real division of opinion on that. There's a sharp problem right now, particularly in urban centres.

You eloquently canvassed the whole issue that there shouldn't be any difference between the type of firearm.... But is there a further measure of gun control that you think might be necessary, once we're done with Bill C-10?

[Tony Cannavino]

There are many things that should be done if we're talking about firearms. One of them, of course, concerns the storage of firearms.

We have a lot of people who go to different places because they like to shoot at targets. They become members of clubs. We had a discussion on our board about those clubs storing the guns. What is the use of bringing them back home? There's a procedure for bringing a gun from the club back to the house. You have to take the shortest way back home. That's a concern.

Why shouldn't the person leave the gun at the club where it would be properly stored? Maybe it would save us from things like what we saw happen at Dawson College. So that is one of the approaches.

Another concern is the fact that we have open borders. We don't have the RCMP patrolling the borders. I had the opportunity to talk with the justice minister and the public safety minister. I know they're looking into that.

We know that trafficking handguns and shotguns is prohibited in Canada, but it's so easy to import them here because our borders are not patrolled. Our ports are not patrolled by police officers either. Those are things we should look into. I think it's very important.

[The Chair, Conservative, Art Hanger]

Thank you.

[Tony Cannavino]

The last thing, which you'll see in our brief, is to update the prohibited and restricted list. It hasn't been done for over 10 years now. There are some new guns. If you go to the website of Wolverine, you'll see what kind of promotion that company is making. They say, “They're not on the list yet so you can buy them, and we suggest you buy them as soon as possible before they are on the list.”

It's worth looking at the website. Those are different things you can do to make sure we're not flooded with those guns.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Murphy.

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chair.

My first question is for Mr. Cannavino, whom I would like to welcome.

Ultimately, you'll agree with me that it's the duty of legislators to make decisions based on the most conclusive and most current information. As you'll no doubt remember — I don't know whether you were president of your association at that time, but you were definitely an active police officer — in 1995, a bill was passed, Bill C-68, which, in addition to creating the firearms registry, of which you are an ardent defender, added 10 mandatory minimum sentences for 10 offences. The reason we're coming out in favour of mandatory sentences is that we think they have a deterrent effect. We have to evaluate periodically whether they have a deterrent effect. That's not the only reason why we decide to impose such sentences. But that's part of the thinking.

I admit that few studies have been submitted to us by academics, by scientists. I'm not talking about interest groups. We understand it's not their work to do that, and I'm not asking you to conduct studies of that kind today. However, has any scientific study in the least satisfying been brought to your attention that would suggest that, since 1995 — we're just talking about firearms; there are roughly 40 mandatory minimum sentences in the Code, but let's just talk about those concerning firearms — mandatory minimum sentences, in the context of the commission of firearms offences, have had a deterrent effect? Would you be prepared to share your sources?

[Tony Cannavino]

If there's one problem that we've observed over the years, it's that plea bargaining, that is negotiations between the Crown prosecutor — which was a very well-paying livelihood for Mr. Lemay in his previous life — and the defence obviously considerably reduces the impact of the sentence, in terms of length of sentence. You heard the eloquent presentation by Ian Lee, who explained the statistics he had compiled on the effects of these minimum sentences, and on the reasons why we need them.

As you know, if we can find a way to reduce the crime rate or to prevent people from reoffending, we'll be the first to support that approach and to tell you to adopt that way of doing things rather than another. I was listening to Mr. Chartrand's presentation. Yes, indeed, we advocate prevention, therapeutic programs and all that. We understand that, and we're ardent promoters of that method, but, when that doesn't work, when the person, despite everything we've offered him, nevertheless decides to use a firearm, that's when we need bills like this one, Bill C-10.