Justice Committee on Dec. 4th, 2006

[Prof. Jean-Paul Brodeur]

In my study, I found that people are influenced by detective novels and generally think it takes around 365 pages to solve a murder.

Actually, I can only give you examples of crimes. Take the case of an individual who is harassed at work for a long time, gets mad and suddenly kills someone. Another example might be a mother who kills her child who is very sick, or young people who point their weapons at one another and fire them in plain sight.

For the first type of crime, to some extent, deterrence isn't really an issue, because they are crimes committed on impulse. As for other crimes, crimes committed by organized crime, their rate of solution is generally quite low. When you hire a hitman to knock someone off... Take the Auger case; the guy who tried to kill that reporter was never found.

[Réal Ménard, Bloc, Hochelaga, QC]

He says he knows who did it.

[Jean-Paul Brodeur]

The police say they know too, but can't prove it.

So there's a bit of a split: on one hand, you have people who act on impulse, who are impervious to the deterrence, and on the other, you have pros who think they've got a good chance of getting away with it.

In closing, one of the things the commission was trying to say was that you need to have an integrated and consistent approach to justice.

One thing struck me when I read these provisions. When you referred to the firearms registry, you said two new offences were being created: breaking and entering to steal of a firearm, and robbery to steal a firearm. For someone who wants to steal firearms, a weapon is far more desirable if it's unregistered. When the weapon is registered, it's a less attractive target for theft.

So it's hard to see the logic in "deregistering" firearms and creating new offences for individuals who break and enter to steal these weapons. These are contradictory efforts.

[Réal Ménard, Bloc, Hochelaga, QC]

With all due respect, I hope the government members have duly taken note of your comments, which were very relevant.

That said, what's also of concern is the fact that we, as legislators, are entitled to make decisions based on clear and compelling evidence. After all the studies we have seen, if deterrence worked, the bill would be pointless because it was already adopted back in the time of Allan Rock, when the firearms registry was created. At that time, there were 10 offences for which mandatory minimum penalties were created.

Why should we now be increasing the sentence by one year or increasing it in the case of a subsequent offence, when there's already a legislative scheme? We do see this happening elsewhere.

Do you have any information on street gangs that you could share with us, in connection with what could be done with firearms?

[Prof. Jean-Paul Brodeur]

In terms of information on street gangs, Ms. Mourani—

[Réal Ménard, Bloc, Hochelaga, QC]

Whom we associate with on a regular basis—

[Prof. Jean-Paul Brodeur]

—recently published a book in Quebec.

Yes, I'm aware of that, sir. Don't take it as flattery. The phenomenon, which is attracting a lot of attention, is relatively recent.

I'm just going to repeat something I probably went over too quickly in my presentation. Young people who join street gangs are arming themselves, and arming themselves heavily. It's a spiral. They arm themselves because their opponents are armed, and the third guy arms himself because the first two are armed, and so on.

In this case, increasing the sentences or imposing minimum sentences has little deterrent effect because to some extent, they are more afraid of the young men in the other gang, their rivals, than the law. That's why, if you want to solve the problem of street gangs, you have to deal with the root causes of the problem rather than piling on relatively useless penalties.

The reason a young person decides not to enter into a drug transaction unarmed is to avoid the risk of getting stabbed or shot by the other person. I'm not saying I agree with that; it's unfortunate that that's the way it is. However, that shows once again that the deterrent effect is really minimal.

[Réal Ménard, Bloc, Hochelaga, QC]

Do I have time to ask another question?

[The Chair, Conservative, Art Hanger]

One more question, quickly, Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Ms. Joncas, you were saying that in 90% of cases, that leads to a guilty plea, which gives rise to a joint sentencing recommendation. Did I understand correctly?

[Lucie Joncas]

No. I said that 90% of charges lead to a plea or plea bargaining that closes the case. So only 10% of charges go to trial. And a lot of cases get settled after the pre-trial, which people are also trying to chip away at these days. That's another factor.

If you consider the amendments to the Criminal Code, they shouldn't be taken in isolation, one bill at a time; you have to take a more comprehensive view of them. I think the bill currently before you doesn't meet the needs. On the contrary, it's going to make the problem worse. Preventive detention and case settlement will definitely be seriously affected by these legislative measures.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Comartin.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I just want to say to Professor Brodeur that I feel very strongly that the point he made about the street gangs arming themselves, especially around drug deals, is so true.

We had a police officer killed in my riding while breaking up a drug deal. Five or ten years ago that individual, who hasn't yet been convicted but I'm assuming will be, but is alleged to have killed him, would not have been carrying that gun, and that officer would still be alive. So I think it's a very good point that he's made—and I thank you for that, Professor.

Ms. Henderson, concerning the circle model, I've been studying it a bit, and it's a bit off topic today, but I want to know some more about it. One of the questions I have, from talking to some of the people who have been through it, is whether the model can be adopted in our prison system, either at the provincial or the federal level. Is there any way it can be adapted so it would work there, particularly in preparation for people who have been convicted and have spent their time and are coming out—so, let's say, those few months or a year before they're released?

[Eileen Henderson]

The initial concept of the circle model was that a circle would be formed at least six months prior to someone's release back to the community. We don't always have that luxury in terms of knowing when people are coming back or where they're coming to, but there are some attempts at this moment to begin to look at how to move the model into the institution so people are in a circle a year or two years before they come out, so there is a situation of trust and there is outside community modelling and setting standards of community behaviour, but also building supports for that person.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

I'm having a hard time conceiving how that would work. Would you be moving, then, members from the general community into the prison for that period of time, on a periodic basis? How would it function?

[Eileen Henderson]

It's visitation through visiting programs in the institution, perhaps, and we've explored looking at one of the family visit opportunities that an individual might have of moving. We're exploring that presently at one of the institutions in Ontario as to whether we can use that kind of scenario to begin to build a circle model for an individual who is presently incarcerated.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

But there are no models right now where that's been tried in the prison setting?

[Eileen Henderson]

Not at this moment.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

To Mr. Weinstein and Ms. Joncas, regarding the impact on the judiciary of this bill, if it goes through unamended—and Professor Brodeur, you might want to add something as well—is there discussion within the judiciary now about any concerns over this shift in discretion from them to the prosecutors and crown attorneys? And if so, even if it's anecdotal, could you give me some sense of the discussion going on within the legal community? Similarly, do you have any impressions of how the prosecutors feel about this shift in discretion?

[Joshua Weinstein]

What I can say, for obvious reasons, is that I don't know what a lot of judges are feeling, because there are certain constraints on what they're able to tell us. I think there's no doubt there are lawyers who have been in situations where a judge has made a comment during a sentencing that their hands are tied.

But I can maybe comment more in terms of the prosecutors. When they're trying to resolve a matter, you would think that maybe some prosecutors would find it efficient that they at least have the floor set, but it does create problems.

I will give you an example of a very real problem that I have dealt with, where a farmer shot down a crop-duster that had flown too close to his farm. The person wasn't injured, but there was no doubt that there were effects psychologically. At the end of the day, what the victim wanted was restitution, restitution for the cost of the plane, the lost business. Now, if that person were incarcerated for four years—and that's for having discharged a firearm with intent—and they had a farm and were trying to make money, they would have little or no ability to pay the restitution. To the crown, recognizing what the real goals of everyone were, of the victim to be in the situation they were in before, in terms of reparations, and of the offender obviously to be allowed to be out in order to be able to make the money to pay back the victim, that charge then becomes a careless use of a firearm.

So you have those constraints. And I've mentioned that there's an out that's been played. But again, it relies on that crown attorney to exercise that discretion; it may not happen in every case. But if you put that situation before a judge with no constraints in terms of minimums, and you say, what we're presenting to you today is that the victim wants to be in a situation they were in before and have their money paid back to repair the damage, and in doing so, we ask that you consider a conditional sentence, so that the offender will be out in the community and make regular restitution payments, that is then achieved within the framework of the charges that were originally dealt with. But you can't, obviously, because there's a mandatory minimum for discharging a firearm with intent.

That is the example of a potentially lesser sentence and a lesser offence to achieve the goals of sentencing.

[Lucie Joncas]

Mr. Chairman, if I may, I obviously represent the defence attorneys' association in Quebec. I cannot speak on behalf of the judges, but I can say from work and the information that I've gathered that judges feel they can do their job in Canada today. They don't need specific guidelines that are not already there. Section 718 of the Criminal Code gives guidelines to the judges, and they give motivated decisions. They are the people who are in the best position to get proper representations and to know the circumstances of the file, of the offence and the offender.

Therefore, as I said, they feel they can do their job and that this is not necessary. And this is contrary to the principles of section 718.

[The Chair, Conservative, Art Hanger]

Monsieur Brodeur, do you have another comment?

[Prof. Jean-Paul Brodeur]

Yes, very briefly, the most excessive example we have had of mandatory sentencing has been at the federal level in the U.S., where you had rules that would direct a judge, if you had a quantity of crack cocaine, for instance, to multiply that quantity by a factor of 100 and then impose a mandatory sentence. So we've had many examples of a judge saying, I have to sentence you to this amount of time in jail, although I believe, and I declare it publicly, that I think the sentence is unfair. Eventually the whole system was thrown out by the Supreme Court.

There is something that I find disquieting in this project. At some point, depending on whether you're using a shotgun or a handgun, you have a different minimum. This is not as excessive as crack cocaine and powder cocaine, but still, it's difficult to comprehend. I mean, a shotgun is at times more lethal than a handgun.

[The Chair, Conservative, Art Hanger]

Thank you.

Just a general question comes to mind over Mr. Brodeur's comments. There are over 40 mandatory minimum sentence sections in the Criminal Code right now. Many of them deal with firearms. I haven't heard any of the witnesses thus far who have come before the committee looking at any of those mandatory minimum firearms offences that we've had thus far and saying, well, this is what happened, or that's what happened, or this is a result of a mandatory minimum. I'm just curious as to whether anyone here has done such a thing.

For instance, in 1995 in the Criminal Code there was a four-year mandatory minimum offence for a firearm. It was introduced at that time, in 1995. That's 11 years in play now. If that mandatory minimum has been in play for 11 years, has anyone done a study on it, or can anyone comment in reference to the effectiveness or ineffectiveness of that particular thing?

Can you, sir?

[Prof. Jean-Paul Brodeur]

Yes. Well, our time is very limited.

Actually, with regard to the mandatory minimum in respect to firearms, you may ask the question of Professor Doob. There was kind of a statistical study. It was basically shown that judges actually were tailoring their sentences to neutralize the effect of having new minimums. So basically the situation didn't change, not because the minimums were too stringent. What was happening here is that they were, at some point, not circumventing the law but tailoring against their sentence for the minimum mandatory sentence not to have any specific effect.

That is one that was studied. You may ask Professor Doob.