Thank you.
While the criminal justice section supports measures to address violent crime rates, such a call to action must be acted upon using only measures that are both fair and effective. This section opposes the use of mandatory minimum penalties. Any action must proceed only if it is likely to achieve the goal of public safety and is at the same time consistent with what I'll call the three Cs: charter, common law, and Criminal Code--specifically, the principles of sentencing. We oppose the use of mandatory minimum sentences because they limit a judge's ability to fashion an appropriate sentence and they distort sentencing principles established by the Criminal Code.
Now, let me start with the judge's ability to craft a just sentence. You've had, I think, criticism in the past before this committee about the “one size fits all” approach. As someone who is 6'8", I can tell you that's not always the case.
Our section has faith in the judiciary, who are charged with the often difficult task of weighing a number of considerations when imposing a just sentence. They are guided by both common law principles, the charter, and again, the principles of sentence as outlined in the code. But let me go further. They're in the unique position of being able to address the just punishment not only based on the principles of sentence, but also taking into account the specific circumstances of an offender, the circumstances of the offence, and the particular community of the offender and the victim.
In addition, given Canada's track record of over-incarceration of aboriginal peoples, section 718.2 was a tool put in place to require judges to look at such options when sentencing aboriginal offenders. The bill would have the effect of taking away such a requirement and would amplify the current problems of over-incarceration of aboriginals. If a particular offence warrants a lengthy penalty, the sentencing judge already has the tools to impose the appropriate sentence. It is our section's experience that gun crimes already receive lengthy sentences.
Bill C-10 has the potential to distort a number of sentencing principles. One of those principles is proportionality--that is, that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Bill C-10 would set the floor of sentencing for all offenders, even those whose degree of responsibility is towards the lower end of the spectrum.
The Criminal Code also recognizes the principle of restraint--that is, that we restrain ourselves from jailing an offender unless it's necessary to protect the public. As outlined in our written submission, and as I present to you today, the criminal justice section believes that mandatory minimum sentences do not advance the goal of deterrence.
Other goals of sentencing, particularly denunciation and rehabilitation, are also principles a judge must consider. In the indiscriminate application of mandatory minimum sentences for all offenders, a judge is limited in fashioning a rehabilitative sentence for an offender who would benefit from such a disposition.
Now, it's also our opinion that Bill C-10 would not improve justice efficiencies and would most likely lead to lengthy delays within the criminal justice system; more trials, given the higher stakes; higher incarceration rates; and more jails. This obviously all comes at a higher cost to the public.
Clause 9 of the bill would create two new offences: breaking and entering to steal a firearm, and robbery to steal a firearm. While theft of firearms already constitutes an aggravating factor on sentence, what the proposed amendment would likely do is create another hurdle for crown prosecutors to prove. To prove that the accused specifically intended to steal firearms would require very compelling evidence of intent, which often isn't the case unless there is an admissible statement by the accused or co-accused.
Now, another aspect of the bill that our section submits is a problem is the sheer complexity of its provisions in calculating the applicable sentence. I have read with great interest background information before appearing in front of you today. The debates have, I believe, illustrated this point. It is not just my inherent inability at doing simple math that is the source of the confusion, but the scheme itself, which in our opinion lacks cohesion and is just outright complex. If our section had difficulty in winding through the maze, imagine what it would be for those individuals we want to send a message to.
Now, our section wants to also bring to your attention a very real phenomenon that is actually occurring already, whereby sentencing discretion is being transferred to the Crown. When an accused is facing a mandatory minimum sentence, the negotiations between Crown and defence cease to become plea bargains; rather, they're charge bargains.
Let's say an individual is charged with discharging a firearm with intent. The Crown will agree to reduce the charge in exchange for the accused's pleading guilty, thus securing a conviction, while at the same time allowing the accused to avoid jail time. However, the charge bargaining process relies on Crown discretion. While meaning no disrespect to prosecutors, an accused is more likely to buy into a process that has as its pillar an independent arbiter exercising discretion rather than a representative of Her Majesty.
The second problem is that such a process dilutes the intention of things like the present legislation, instead of being tough on crime, as an accused comes out of the process with not only a potential lesser sentence, but a lesser offence. Eliminating mandatory minimums may very well have the effect of such an accused receiving the appropriate sentence, but still within the framework of the charge as originally laid.
Our section urges this committee to reject this bill. While the bill strives to achieve the goal of protection of society, a goal we share, it does so in a manner that won't have the intended effect and will lead to injustices.
Thank you very much.