Justice Committee on Dec. 4th, 2006

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

No, I am coming to my question.

[Réal Ménard, Bloc, Hochelaga, QC]

Be careful when you make certain links.

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

I am very careful. I proceed the way Mr. Lemay does when he questions some witnesses very closely, which is not something I do.

My question is to you, Mr. Brodeur.

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

She is not here as an individual witness, she is here to represent the Association des avocats et avocates de la défense.

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

I come now to my question, Mr. Brodeur.

[The Chair, Conservative, Art Hanger]

Order, please.

Mr. Petit, please direct your questions to the chair.

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

When an individual with connections to a gang is the victim of a crime involving a firearm—and Mr. Ménard made reference to this earlier—there are what is known as aggravating circumstances. Let us also look at a different case, where an individual who is not a member of a gang is a victim of an indictable offence in which a firearm was used. So we have two victims: one who was attacked with a firearm because of membership in a criminal gang, and the other a victim of a serious indictable offence even though he was not a member of a gang.

How will the judge react? In the first case, he must do one thing because of the aggravating circumstances; in the other, he is not required to do so.

I'm trying to summarize my question, Mr. Brodeur. From the victim's point of view, I would prefer to be "attacked" by someone who is a member of a gang, because I am sure that person will go to jail longer, rather than by a person who is not a member of a street gang. Something should be mentioned to the judge. Things are always the same for the victim. In some cases, victims will think that the approach is rather lax, while in others, it is rather severe.

In light of what I have just said, do you think Bill C-10 is strong enough to ensure that victims are treated in the same way by the justice system? I have tried to outline my point as best I could.

[Prof. Jean-Paul Brodeur]

I see. I will try to answer your question, but I am not sure I understood perfectly, Mr. Petit.

Your comments are in the context of a justice system that tailors sentences to individuals. In one case, the person who commits the crime is a member of a gang, and the other, the person does not belong to a gang. We could say that the justice system tailors the sentence to the individual.

To some extent, the bill is the diametric opposite of individualized justice, because it provides for mandatory minimum sentences which are the same in all cases. This is why I am not sure I understand your question properly.

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

No, I'm talking about the equity of the bill for the victim. I am asking you to look at this from the point of view of the victim, not from the point of view of the person who, rightly or wrongly, will be sent to prison.

[Prof. Jean-Paul Brodeur]

Very good. I would make two quick points. You have asked an interesting and difficult question, and I will try to tell you what I think about it.

If I were a victim myself and I had been injured seriously, it would not be very important to me whether I was injured by a member of the Hells Angels or by my neighbour. However, the point I would stress—and this is the thing that recurs often in justice, namely the fact that victims play a very minor role in court at the moment—is the opportunity to express my opinion. The victim is the Queen, as is stated in the names of cases. I think that if we want to give victims a voice, if we want to hear their views—and there is someone at our school, Ms. Arlène Gaudreault, who has been defending this issue for a long time—we could perhaps try to give them a greater role in court. However, the bill itself is a general bill on sentencing, and I have not seen any provisions in it specifically about the role we would want to give to victims.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Petit. Thank you, Mr. Brodeur.

Mr. Brown.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Hanger.

My first question relates to judicial discretion. I've heard some reference made to judicial discretion by a few of the witnesses today and I want to see where you're coming from on this.

I believe in some cases, in the cases of maximums and in the cases of minimums, that if judicial discretion is given some guidance it's helpful. We've seen that with the maximums in the code and with the minimums in the code.

I certainly support this legislation, because I believe in some cases we need minimums. So for those who have spoken against any curbing of judicial discretion, I want to see what your opinions are on other cases where we inhibit judicial discretion in the code.

For example, would you be in favour of removing the current maximums in the code? And I want to get your opinion on this because I want to understand if it is this specific legislation that tackles criminals--and if it's that, then I can appreciate where you're coming from--or is it really judicial discretion that you're concerned about, because both those are incongruent. You can't come from both positions. You can't be in favour of limiting judicial discretion in one case but not in the other.

So we could start off with Lucie, and I know you're the first one who mentioned judicial discretion in your comments.

[Lucie Joncas]

You're asking us precisely if we should get rid of the maximum, and I believe Mr. Brodeur answered that question when he was making his representations, in that the average sentence in Canada is nowhere near the maximum. So I don't believe this is an issue.

And in 15 years of practice--and obviously I've had some very interesting cases--I've never seen a judge or a prosecutor have a problem with the maximum sentence that is there.

[Patrick Brown, Conservative, Barrie, ON]

What I'm looking at is not that it may not happen, and many times we may not need to use the minimums. A judge is going to have cases go in different directions, there may be findings of guilty or not guilty. What I'm concerned about is knowing your position on the limiting of judicial discretion.

I keep hearing this term referenced, and I'll give you an example of Paul Bernardo. Maybe the judge in that case would have wanted to give beyond the maximum. There are cases where maximums are used. By having maximums in the code, we're limiting judicial discretion.

What I want to know is, are you in favour of limiting judicial discretion in that case, or is it only selective?

[Lucie Joncas]

There is just one thing that can be said. First of all, when there are serious offences, as I've already mentioned, there are dispositions in the code for offenders to be controlled, or for long-term offenders. So if that's the issue, it's already there.

You say that the judge can always make a decision, but if there is a minimum, that's what we're saying, that the judge has no discretion. And on the finding of guilt, a jury is never informed of what the potential sentence is, so nobody can have that in the front or the back of their mind. It is against the law, currently in Canada, to inform a jury about the potential sentence the person they would be convicting would be facing.

[Joshua Weinstein]

With respect to Mr. Bernardo, I don't know what the sentence is beyond life, in that particular situation. That is obviously the maximum that Mr. Bernardo's under.

I don't accept, with the greatest of respect, that with judicial discretion I have to accept that it must mean we have to do away with maximums as well. They can be distinguished, and they're distinguished for some of the reasons Professor Brodeur talks about. I challenge people to find sentences where the judge felt that his or her hands were tied because of the maximum. I won't necessarily bet money on it, but I imagine they are either few or nil.

The situations that are more often the case—these are the situations that we as a section, when we talk about it, come across more often—are those that are caught by the mandatory minimums. They have sweeping effects, and it is not just a reasonable hypothetical; it's an actual situation, with individuals who are caught up by the mandatory minimum.

What we've obviously come to speak about as a section today is the mandatory minimums. It is our submission that they will lead to injustices, and the injustices are on the side of those caught by the provision, where an appropriate sentence might not be that which is set by the floor of a mandatory minimum.

[Patrick Brown, Conservative, Barrie, ON]

Well, using that approach, you said you haven't heard examples where judges have felt constrained by the maximums. Are there cases you can illustrate to us where judges have felt constrained by the existing minimums in the code? Obviously we already have minimums. Are there cases where a judge felt horrified by the current minimums and wasn't able to do his job?

[Joshua Weinstein]

Maybe Ms. Joncas will be able to deal with that. I don't know whether there are situations in respect of judges—

[Patrick Brown, Conservative, Barrie, ON]

Well, it was your example.

[Joshua Weinstein]

I can deal with the examples of the constraint in terms of the whole process of dealing with matters, and that is one of them—

[Patrick Brown, Conservative, Barrie, ON]

You mentioned specific cases.

[Joshua Weinstein]

—and I'll give you others. You have obviously mandatory minimums with respect to offences involving distribution of child pornography. If those are situations that present themselves where the Crown might recognize that the person is actually in need of rehabilitation, and the best rehabilitation is that which is offered in the community—

[Patrick Brown, Conservative, Barrie, ON]

Are there any cases, though, that you can tell us about?

[Joshua Weinstein]

I won't cite the actual case, but this is an actual case that has occurred. You have between dates.... November 15, 2005, is the magic number, because on that day it was proclaimed that for sentences beyond that date there should be a mandatory minimum for distribution. If you have an occurrence where you have someone who was distributing between those dates, a crown prosecutor would be open to amend the charge, to make it such that it is going to only take into account the pre-November 15, 2005, events, to accomplish what the Crown is also of the opinion is the best objective in terms of sentencing: that the rehabilitation of this person is best achieved in the community.

Again, that flexibility is now being exercised by the Crown. Had there not been mandatory minimums, we could be in a situation where the judge could make that call and, if appropriate, then the jail sentence be opposed.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Brown and Mr. Weinstein.

That brings us to a conclusion. I would like to thank all of the witnesses for coming forward with your presentations. This certainly has generated a good discussion, and we have something else to think about in our evaluation of Bill C-10.

Thank you for coming.

[Proceedings continue in camera]