Justice Committee on Nov. 29th, 2006

[The Chair, Conservative, Art Hanger]

I would like to call to order this meeting of the Standing Committee on Justice and Human Rights. Before us is the continued debate and discussion on Bill C-10, an act to amend the Criminal Code on minimum penalties for offences involving firearms.

We have the following witnesses before us today: from the Canadian Civil Liberties Association, Alexi Nicole Wood, the program safety project director, and Mr. Alan Borovoy, general counsel; from the Church Council on Justice and Corrections, Monsieur Laurent Champagne, the president; and from the John Howard Society of Canada, Mr. Graham Stewart, the executive director.

I thank you all for being here.

I will turn the floor over to the—

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Point of order, Mr. Chairman.

At the last meeting we said we would be finishing earlier. I'd simply like to know how many minutes each member will have to ask questions. If there are fewer of us and there's a chance we may end earlier, I would like to know in what order we will be called on the speak.

It would seem that the Liberal Party is holding a convention. The Liberal members will have to go. It's up to you to decide.

[Sue Barnes, Liberal, London West, ON]

Thank you, Mr. Petit, but I plan to stay until the end of the meeting at 5:30 to hear the witnesses who have come before us. I will not be able to get to my convention until tomorrow because this meeting wasn't moved, as was suggested earlier in the week. But thank you very much. At the last minute, it doesn't help much, and I would prefer to hear the evidence from the witnesses.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Barnes, Mr. Petit. I do realize, too, that we have another Liberal member, and that's Mr. Bagnell, so I think we do have a full or close to full contingent at this time.

[Sue Barnes, Liberal, London West, ON]

Mr. Lee will be coming. He's just tied up at another meeting for fifteen minutes.

[The Chair, Conservative, Art Hanger]

Thank you for that.

[Réal Ménard, Bloc, Hochelaga, QC]

Mr. Chairman, will you be dealing with the motion on future business at the beginning or the end of the meeting? Could we not adopt it straightaway? That way it would be done.

[The Chair, Conservative, Art Hanger]

We will deal with it here eventually, Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Not today?

[The Chair, Conservative, Art Hanger]

Not right at the moment, no.

Who will be presenting for the Canadian Civil Liberties Association? Mr. Borovoy?

[Alan Borovoy, General Counsel, Canadian Civil Liberties Association]

The name you have trouble with.

[The Chair, Conservative, Art Hanger]

I've got it down, sir. Thank you. The floor is yours.

[Alan Borovoy]

Thank you.

I'm here on behalf of the Canadian Civil Liberties Association. To my immediate left is our project director of public safety, Alexi Wood.

I have three points to make. The first is that mandatory minimum sentences are capable of producing very serious injustice. One of the most effective examples is the current plight of Saskatchewan farmer Robert Latimer. For ending the life of his severely disabled daughter, Mr. Latimer was charged with and convicted of second-degree murder. And for that, he drew the automatic sentence of life in jail with no chance for parole for ten years. What's particularly troubling about this case are the facts. As found by the judge, Mr. Latimer committed this deed to relieve what he saw as the unremitting, terrible pain his young daughter was suffering. In the judge's words, Mr. Latimer was motivated solely by his love and compassion for his little girl. As a result, the judge gave Mr. Latimer a constitutional exemption from the operation of the mandatory minimum and gave him a much lighter sentence. The other tryers of fact, the jury, recommended he be eligible for parole after one year. So those who were finding the facts, who heard all the evidence and saw all the witnesses, urged a course of leniency.

Now, it isn't necessary to excuse mercy killing in general, or Robert Latimer in particular, in order to be outraged by the current punishment this man is suffering. Most second-degree murders are committed out of hate, greed, or at least selfishness. It is repugnant that a compassionate father who breaks the law out of love should suffer the same penalty as a malevolent robber who breaks the law out of greed. In the opinion of the Canadian Civil Liberties Association, this situation is nothing less than a national disgrace, and the culprit is mandatory minimum sentences that permit no flexibility, that rigidly impose a sentence regardless of whatever peculiar or particular circumstances may apply. That is the first case.

I have another case to illustrate the nature of the injustices this is capable of producing. In 1994 the Ontario Court of Appeal reduced the jail sentence of a prisoner who had been convicted of discharging a firearm with intent to cause harm. They reduced this sentence from 12 months to six months because in the opinion of the court he had an exemplary record previously and he was acting in a situation of high stress that required split-second decision-making. The prisoner, it turns out, was a police officer. The person at whom he unloaded his firearm was a burglar he was chasing. He grazed his arm.

Now, if that man had come up for sentencing today, he would have to serve no less than four years. Thanks to the grace of Bill C-10, he could have to serve five years. I find it inconceivable that even the most ardent proponents of mandatory minimum sentences would wish that kind of outcome on that police officer.

How does this happen? It's because simplistic solutions such as mandatory minimum sentences inevitably encounter complex reality, and you can't always make them fit. That's the reason why this is such an abomination.

That's the first point. The next two points will run much more quickly.

The second point is that even as mandatory minimums cause a lot of harm, they also produce virtually nothing for public safety. One of the reasons is probably quite obvious, and that is that, as studies have demonstrated, the greatest number of people in the public don't have the remotest idea what crimes are accompanied by what mandatory minimums.They simply don't know. The more you add to it with all the fancy tables—if you're convicted this many times, and that many times.... Whoever thinks that any member of the public is going to know this?

How in the world is anything supposed to deter the commission of crime if the people it's supposed to deter don't know it exists? Small wonder that there is a wealth of literature that reaches the conclusion that these mandatory minimums do not contribute to public safety.

The third and last point is that there are alternatives to mandatory minimums. If a judge imposes an excessively lenient sentence, there is recourse to appeal. And prosecutors have appealed, and courts of appeal have increased sentences in circumstances that warranted it. It has happened on a number of occasions; this is no secret.

Consider the difference. If a sentence is too lenient, it's subject to appeal; if a mandatory minimum in a particular set of circumstances is too harsh, there's virtually nothing you can do about it, except perhaps pray. That is an unacceptable double standard in our justice system.

The final point I would like to make about the alternative is that for those few crimes that are so horrendous it's inconceivable that they wouldn't be worthy of this mandatory minimum—such as murder, for example—one way to deal with them is by what we call a “presumptive minimum”. That is, you might provide—for murder, let's say—life in prison, but say presumptively “unless a court finds exceptional circumstances”. That signals to the court that this minimum should apply unless the circumstances are genuinely compelling.

There's no reason to make it a conclusive mandatory that is so insensitive to peculiar differences in situations. There's simply no earthly reason to do it.

To sum up, Mr. Chairman, we say that mandatory minimums should not increase. Indeed, they should decrease, first, because they are capable of producing very serious injustice, and have; secondly, because they contribute virtually zilch to public safety; and thirdly, because there are viable alternatives to using them.

All of which is, as always, respectfully submitted.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, sir.

Mr. Stewart.

[Graham Stewart, Executive Director, John Howard Society of Canada]

Thank you, Mr. Chair. I'm pleased to be here again to speak to this particular legislation.

The John Howard Society is a national charity comprising those who believe an essential component of community safety lies in social measures that serve to reintegrate those who have offended into the community as law-abiding citizens. We're located in 60 communities across Canada. Our mission is effective, just, and humane responses to the causes and consequences of crime.

Crimes committed with guns are very serious. Even when no injury occurs, the potential for injury or death is high. The Criminal Code and the courts clearly take such offences very seriously now.

It is not for the John Howard Society of Canada to propose what the sentences for gun crimes should be. It is our position that sentencing is an individual process that must reflect the specifics of the offence and the offender. The John Howard Society of Canada is making this submission in order to express its view regarding who should set the nature and quantum of a sentence and identify the principles on which those sentences should be based.

In particular, the John Howard Society believes that the principles of sentencing found within the Criminal Code are substantially correct and give sufficient and appropriate guidance to the sentencing court. The sentencing courts, with reviews through appeal to the Supreme Court of Canada, are competent and the only bodies capable of establishing appropriate and just sentences within the principles established by Parliament. There is neither need nor benefit to be derived from imposing particularly severe sanctions on every case for gun crimes beyond those sanctions already imposed today. Data do not support the notion that gun crime rates are growing at alarming rates, except in very particular circumstances and locations. Research over many years shows conclusively that neither the deterrent nor incapacitative intentions of higher penalties are likely to have a significant or cost-effective impact on gun crime rates. And finally, the new expenditures associated with the proposed mandatory minimum sentences could be spent much more effectively to reduce crime generally, including gun crime, if directed towards preventative initiatives.

Severe mandatory minimum sentences conflict with the most important principles of sentencing. Mandatory minimum sentences, particularly when they involve long periods of incarceration, are incompatible with the fundamental principles of sentencing as set out in section 718.1 of the Criminal Code, that being that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

Under Bill C-10, penalties could increasingly become arbitrary and excessive. Parliament cannot consider individual circumstances, and without such consideration, the penalty becomes arbitrary, particularly as the severity of the mandatory minimum penalty increases. This point is reflected by Chief Justice Beverley McLachlin when she said that “Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender.”

Confidence in the justice and political system will decline. The Government of Canada should not take action that would promote and reinforce unfounded distrust of our judiciary. If the judicial system of courts and appeals cannot be trusted to give appropriate sentences within current principles and precedents, then it would be difficult to explain why they should be trusted in any other circumstances.

Respect for the criminal justice system will never be achieved by measures that breed distrust of our judiciary. Measures that would eliminate the discretion of the court and replace it with one that is inherently arbitrary cannot generate public confidence in either the judicial or the political systems.

Harsh penalties encourage greater recidivism. When the impact of Bill C-10 runs its course, the same number of gun offenders will be released each year from prison as is the case today. Having served longer sentences, those being released from our prisons will likely be much more difficult to reintegrate into society. We will have fewer resources to either prevent crime or rehabilitate offenders. They will be more likely to offend again.

The introduction of new mandatory penalties will be increasingly difficult to control. If mandatory minimums work for one offence, why not all offences?

Thanks to the escalation in the use of mandatory minimums in the United States, they now have five to eight times the incarceration rate of any other western industrialized country. Canada has created a just and peaceful society. With an incarceration rate that is one-seventh that of the United States, we should be reluctant to adopt their approach to sentencing now.

Discretion will shift from the judge to the crown or even the police. In a study for the Department of Justice, Thomas Gabor concluded:

There is no evidence that either discretion or disparities are reduced by...[mandatory minimum sentences]. While judicial discretion in the sentencing process is reduced (not removed), prosecutors play a more pivotal role as their charging decisions become critical.

Canadian experience does not show that harsher penalties reduce crime. Because of our principles of sentencing primarily, Canada benefits from a substantially lower rate of imprisonment than the United States, where mandatory minimums have become common. This was not always the case.

Looking back 30 years, the incarceration rate in Canada was at 90 per 100,000, as compared to the United States, which was 149. Today, the incarceration rate in Canada is 108, while the incarceration rate in the United States has soared to 750.

One might expect that if incarceration prevented crime either through deterrence or incapacitation, these stark differences in incarceration rates would lead to very different crime patterns over time. In fact, this is not the case. Crime fluctuations in Canada and the U.S. have remained surprisingly similar. Property crime is about the same between the two countries, while serious violent and in particular gun crimes in the United States have remained consistently much higher than in Canada.

The variation in gun crimes between cities in Canada is substantial. The fact that between and even within cities there are often huge differences between neighbourhoods in rates of gun crimes cannot be explained by the existence of tougher sentencing in the low-crime neighbourhoods.

Most research does not support the effectiveness of mandatory minimum sentences. Academic studies that challenge the theory that harsh penalties reduce crime abound. A large-scale review of the United States experience with enhanced sentences for gun crimes involving data from nearly all states over a 16- to 24-year period concluded that several small-scale studies have suggested the laws might reduce some types of gun crimes. We found the laws produced such an impact in no more than a few states, and there is little evidence that the laws generally reduce crime or increase prison populations.

Similar studies have occurred in Virginia and Florida, and in California the experience is interesting. Crime rates have moved in opposite directions between young and adult offenders, even though adults were subjected to severe mandatory minimum sentencing provisions and much higher levels of incarceration. With youth in California the opposite occurred. The incarceration rate and the crime rate of youth in California is the lowest it's been in 30 years.

In Canada, a large meta-analysis of all valid research conducted over 50 years in North America that tested the impact of sentence length and recidivism found that the type of sanction did not produce decreases in recidivism. There was no differential effect of the type of sanction on juveniles, females, or minority groups. Thirdly, there were tentative indications that increasing lengths of incarceration were associated with slightly greater increases in recidivism.

Canadian criminologists Antony Doob and Cheryl Webster published an exhaustive review of the international literature over several decades. They concluded that harsher punishments do not deter crime.

Deterrence-based sentencing makes false promises to the community. As long as the public believes that crime can be deterred by legislatures or judges through harsh sentences, there is no need to consider other approaches to crime reduction.

Trends with gun crimes in Canada do not support the need for harsher punishments. Data produced by the Department of Justice in January 2006 show startling and presumably reassuring trends, including the fact that the homicide rate in Canada dropped between 1974 and 2004 by 25%, while firearm homicides dropped even further during that period, with a drop of 54%.

Firearms used in robbery dropped 53% between 1974 and 2004, and dramatic declines in virtually all violent crimes were recorded over the last 15 years, with a combined drop of 60%.

While these changes are dramatic and positive, very recent data from Statistics Canada shows that in the last two years there's been an increase in gun-related homicides in a few major centres. As troubling as this may be, these changes can not be explained by different sentencing practices in those centres and are unlikely to be addressed through sentencing measures.

In conclusion, all of the above gives rise to the conclusions articulated in our submission that principled sentencing can not be achieved through severe and arbitrary mandatory minimums proposed by Bill C-10. Neither does the evidence suggest that such measures will reduce gun-related criminal activity.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Stewart.

Mr. Champagne.

[Laurent Champagne, President, Church Council on Justice and Corrections]

Hello, my name is Laurent Champagne and I am the President of the Church Council on Justice and Corrections. I also work for Correctional Services of Canada, as an institutional chaplain at the Leclerc facility and at the Aumônerie communautaire de Montréal, as a coordinator. I work with some 15 partners.

Although we share the government's concern with ensuring the safety of Canadians, we would however like to point out that harsher sentences have no deterrent effect on offenders and no effect on recidivism. The American experience has been eloquent on this point. Mandatory minimums would only serve to provide Canadians with a false sense of security, because sentence length and decreased crime rates are independent variables. There is no causal relationship between the two. We would like to remind you that there has been a drop in the crime rate in Canada, based on a Statistics Canada study.

Bill C-10 would also hamper the social reintegration of offenders. Excessively long incarceration may jeopardize an offender's chances at a successful rehabilitation, because it is crucial to allow offenders to re-enter society when they are prepared to take this step in the process. If offenders remain in custody despite that, their chances at reintegration may be compromised.

Finally, we are very concerned by the possible effect Bill C-10 may have, in particular on the Canadian criminal justice system. This bill undermines one of the basic tenets of our legal system, the principle of the individualization of sentences. This principle allows for the consideration of multiple factors and for an in-depth assessment which serve in the determination of a fair and appropriate sentence, based on individual needs.

Moreover, this bill strikes a serious blow to judges in terms of the trust they are granted. By eliminating judicial discretion in sentencing, the government is removing some of the judiciary's discretionary tools. However, are judges not in the best position to decide on a fair and appropriate sentence and to assess an offender's ability at social reintegration?

The Church Council of Justice and Corrections of Quebec's mission is to promote preventive and restorative justice, based on Christian values, by working with legislators, offenders, victims, communities and society through research activity and support for groups and individuals in their quest for growth.

With respect to legislators, we work with provincial and federal governments.

With respect to offenders, our work centres on all forms of support to individuals, be they accused or not, detained or formerly detained.

Victims play a very important role. This overlooked group of individuals deserves special attention if we want to ensure full offender reintegration.

The community is defined as individuals living within a specific area who share an awareness of situations of conflict. These individuals are aware of their own value and of a social responsibility to recognize the facts.

When it comes to society, we wish to mobilize a variety of political forces and their power to address the issue of globalization in order to promote the spirit and the letter of preventive and restorative justice.

This year, Correctional Services of Canada celebrated Restorative Justice Week. We discussed innovative partnerships and strong cooperation. It is on this basis that the Church Council on Justice and Corrections works with its various partners.

I had an opportunity to live in Latin America as a missionary for 15 years, and I can say that Canada is a peaceful and safe country compared to many others. We are proud of this peace and of this safety. However, the growing indignation in society about the effects of crime are concerning to all of us. We have witnessed the suffering felt by so many victims of crime. We feel compelled to seek out a justice system which treats crime in an honest and fair manner, and which contributes to healing individuals, families and society as a whole. Fear and indignation undermine our collective well-being and social fabric.

The growth in the prison population indicates that incarceration is too often regarded as the solution to social and criminal problems. Although it is important to recognize the genuine need to protect ourselves from certain offenders who represent an immediate risk to society, we must also admit that incarceration as a punishment is a costly and exacting type of justice which is clearly ineffective as a deterrent. The rate of recidivism is also a sign of incomplete healing and rehabilitation among offenders. Victims' needs for healing and safety are not being met. To address these issues, overly simplistic measures based solely on the desire to appear tough on crime will not lead to the desired results, because our society as a whole cannot heal until offenders, victims and society in general experience healing.

Our current justice system as it is applied does not work. Suffering and fear continue to grow. We believe that the search for genuine and satisfying justice will forever be linked to the spiritual growth of the individuals involved. Conversely, over-incarceration, which is so typical of a vengeful spirit and repressive mentality only harden the soul of this country.

Under the amendments proposed pursuant to Bill C-10, the following situation could occur. A person carrying a loaded long gun like a hunting rifle commits a robbery in a convenience store, for instance. He has a long criminal record which includes many previous firearms-related guilty pleas. Under section 344(1)(a.1) he would be punishable by a mandatory minimum sentence of four years.

Another person commits a robbery under similar circumstances, but carries an unloaded handgun. It is a first offence and the person has no criminal record. In this case the offender would receive a mandatory minimum sentence of five years, under section 344(1)(a). The same provision would apply if instead of robbery, the offence was sexual assault, kidnapping, hostage taking or extortion.

This proves that the length of mandatory minimum sentences under the bill depends on the legal status of the firearm in question rather than on the actual danger to the public caused by the offence. An unloaded handgun is considered more serious than a loaded long gun, shotgun or hunting rifle, regardless of the actual circumstances of the crime or of the offender's actions, the actual harm caused or any victim-related considerations.

The specific technical details of this bill would add insult to injury by maintaining mandatory minimum sentences in Canada long after the 1987 Canadian Sentencing Commission, and all other commissions having considered the matter over the last 50 years, recommended abolishing all mandatory minimum sentences—fines and custodial sentences—for all offences, except murder and high treason. These grounds are all well documented, as you must know, and this basic criticism has remained unchanged.

When judges must contend with mandatory minimum sentences, they cannot consider the context within which an offence was committed, in other words the seriousness of the crime and the situation the person who committed it was in, in order to consequently mitigate the sentence. As highlighted in the commission's report, mandatory minimum sentences can lead to cruel and unusual punishment, arbitrary imprisonment and serious concerns with respect to liability during the legal process. Under mandatory minimum sentences,

[...] discretion would not be exercised as overtly and would be transferred from judges to crown prosecutors and the police. The Crown would not exercise its discretion to decide which charge would be considered in a public hearing, but rather it would do so unilaterally, through plea bargaining which only judges are privy to, and of which the public are largely unaware.

This was a quote from Mr. Renate Mohr, criminal lawyer and former president of the Church Council on Justice and Corrections in Quebec.

Lastly, those sentences pose yet another significant problem, in that they are against the principle of using imprisonment as little as possible, a principle to which the Church Council has been committed for a long time.

Last week, I took part in a conference entitled "What works in the Community Reintegration of High-Risk Offenders." I have today brought those elements I considered most significant. Victims and offenders worked together on the conference, in an effort to work together to achieve community reintegration.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Champagne.

Ms. Barnes.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

As I have only seven minutes, I'll try to give short questions to different people.

I know that most of the witnesses today have had occasion to review some of the empirical studies done in this area, so who would like to confirm that 25 U.S. states have gone backwards, that 25 U.S. states that had mandatory minimum sentences have now repealed them and moved away? Who would like to confirm that fact for me, please?

[Graham Stewart]

It has been reported in various sources, including Julian Roberts' study for the Department of Justice, that 25 states have modified or partially repealed some of their mandatory minimum penalties.

[Sue Barnes, Liberal, London West, ON]

Thank you very much.

Who at the end of the table can think back to the 1987 study done here in Canada with judges who felt that the use of mandatory minimum sentences for the purpose of deterrence impinged their ability to give a just sentence? Who would like to confirm that?

[Alexi Wood, Director, Program Safety Project, Canadian Civil Liberties Association]

Yes, that study was done in the early eighties, and in that study only 9% of the trial judges indicated that mandatory minimums never affected their ability to impose a just sentence. So the converse of that would arguably be true, which is that 91% of judges felt that at least some of the time their ability to impose a just sentence was being affected by a mandatory minimum.

This study was repeated in a 2001 article by Anthony Doob. I believe he is appearing before the committee, so I'm sure he will be able to provide additional information.

[Sue Barnes, Liberal, London West, ON]

All three of you have brought up the idea of the sentencing principles currently enshrined, since 1995, in the Criminal Code.

What I found interesting and you may find interesting is that a little earlier in our process here, the RCMP sent witnesses, whose statement at that time—contrary to the probable perception of all RCMP—was that it was important to have the individual facts and situations of the offender, and who acknowledged in response to a question from me that this would be taken away with mandatory minimum sentences. So I don't think we should lump all of the enforcement bodies as being as supportive of this legislation as may be presented by some other parties.

I also want to get down to the particulars of the legislation, because, Mr. Champagne, you have mentioned the anomaly, I think, of the bill having sections in it that treat the firearm used, whether it's loaded or not, as having a different.... I cannot get a rational explanation for that from any party, but that's not the only thing that's anomalous in this legislation.

Ms. Wood, I presume you have read the act itself that's been presented here. There was a situation that was brought to our attention last week: that if a prosecutor has a number of charges and proceeds in a different order, under this legislation your mandatory minimum situation could be increased by up to two years, in some situations. Could you confirm that?

[Alexi Wood]

Yes, I would agree with that statement. When you look at the way the bill is drafted, such that you have a selection of different offences from which you can proceed, and the sentences vary according to whether it's a first offence, a second offence, and so on, then yes, you are going to have that opportunity to change how the sentencing would happen, based on how the Crown chooses to proceed.

I'd also like to confirm what my friend here was saying about the mandatory minimum depending upon what type of gun is being used, or whether or not a gun is being used at all. Bill C-10 ups the mandatory minimums that were already present in the Criminal Code for when a firearm is used. But if a machete, for example, were being used, there is no mandatory minimum for several of the offences, as my friend was illustrating during his comments.