Justice Committee on Dec. 6th, 2006

[Ryan King]

In about a minute. From the American perspective, our crime rates are shaped by a number of complex issues, and they are historically linked to post-war development and evaporation of economic opportunity in urban cities. Frequently what has been left in a lot of urban areas is essentially vast wasteland, where the only two institutions that remain are churches and liquor stores. These are predominately populated by low-income communities of colour.

The short, one-minute answer is that the problems in the criminal justice system, the problems with crime, result from failure--in the American case, and I believe it's portable elsewhere—to provide adequate social services. In the case of the United States, we have documented failures in addressing poverty, education, health care, child development, and drug abuse. In every one of these factors we have documented ways in which we can address them. We know drug treatment works. We know early headstart and childhood programs work. We have ways to bring about economic revitalization in communities, and we've done it. We do have ways.

I think we need to address a lot of the problems in the other social spheres, because the criminal justice system, the correctional system, serves largely as a catch basin where individuals who have fallen through the gaps are eventually gathered and left to spend large portions of their adult life.

[Royland Moriah]

I would agree with Mr. King. In looking at the issue of how we address crime in Canada and anywhere else, it must come from a realization that the criminal justice system isn't necessarily the system that's going to be appropriate for dealing with the situation we're facing right now. As Mr. King said, it is a catchment for people who fall through the cracks. From the perspective of our community, and certainly from what leaders in our community have said, it does start from making sure there are appropriate programs in place; making sure there are programs for at-risk youth; making sure there are social services available; making sure that education, health care, and all of these other issues are dealt with. By doing that, you increase people's opportunities to live successfully within society. That certainly makes a big difference in whether or not they find themselves enmeshed in the criminal justice system.

It's not something that can be dealt with necessarily in one minute, and it certainly can't be addressed in the sound bite of mandatory minimums. But we do have to look behind some of those things, look to other areas that the government does have control over, and put the resources where they need to be so that we can address them more effectively.

[The Chair, Conservative, Art Hanger]

Mr. Doob.

[Dr. Anthony Doob]

My starting point would be to say that if we're willing to do mandatory minimums, that means we have money on the table to deal with crime. Let's talk about that money.

It seems to me that if we're talking about an extra 1,000 prisoners in this country, we're talking about $80 million. Where are we going to put $80 million? That's the question that I think you should be asking yourselves. My answer to that would be that there are lots of places, and previous speakers have mentioned these. One of them would be schools. A school is not something just in terms of learning. The school is an institution in which people can thrive and can move on to other things. I'd look at it in terms of housing. One of the things that we know is that instability of housing in young kids and in adolescent kids is likely to lead to increased offending. And I would look at it in terms of various kinds of very fundamental public health issues that would deal with this.

The problem is that we tend to look for quick fixes, something that's going to fix the problem by tomorrow. I was recently reading an overview of the American experience in gangs, because a lot of what's driving the discussion at this table today is gangs. What this pair of authors, who are really experts in this area, were saying is that the United States, with all of the problems of gangs historically, has squandered the opportunity, because both the programs and the evaluations have focused on quick-fix kinds of things, where essentially the model is to suppress rather than to deal with the problems.

There are some areas that are very difficult. I don't have the answers on what to do, for example, in the area of gangs. But things like housing, like the communities, like schools, like public health, like opportunities and real jobs are the kinds of things that have benefits in addition to the crime prevention benefits.

So my answer on the $80 million is that I would want to have those folks sitting at the table, perhaps including the police, for example, because there are things they can do. I would ask them where we are going to get the most effect. One of the things that we know from the research is that we would almost certainly get the least effect from programs such as mandatory minimum sentences.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Doob.

Mr. Kulik.

[Irving Kulik]

You are right to say that there will always be crime. Of course, there are things we can do, and I believe my colleagues addressed most of the critical points in terms of crime prevention.

But there is another point that needs to be made, and it relates to mental health. We know that 10 per cent of federal inmates are considered to be suffering from mental health problems. That is not something we established yesterday; we have come to that conclusion over a certain period of time. I believe that we have to do what is necessary at the federal and provincial levels — and, of course, health care is primarily a provincial responsibility in Canada — to ensure that there are increased investments in mental health in the communities. If we do not do that, people with mental health problems will continue to end up in police cells, and then in provincial and federal penitentiaries.

I can tell you that at the federal level, in the institutions where people are serving minimum mandatory sentences of two, three, or five years, and so on, 90 per cent of the inmates already had a criminal record at the provincial level, or as juveniles, before entering the federal system.

So, it is the community that is critical. We need to invest in the measures that have been mentioned by my colleagues, as well as in mental health.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Chair, and thank you to all the witnesses for appearing. I've listened with interest to all of your testimony.

I want to read something from Statistics Canada this past year that says that the national homicide rate rose for the second straight year in 2005, reaching its highest point in nearly a decade. Firearms-related killings increased for the third year in a row. There were 658 homicides last year, 34 more than in 2004. Of these, 222 were committed with a firearm, up from 173. They report that 107 homicides were believed to be gang-related in 2005, 35 more than in 2004. Two-thirds of gang-related homicides involved a firearm, most often a handgun.

What all that tells me is that it's beyond dispute, in my opinion, that what we're doing currently is working. That's what it tells me. I'm not satisfied with those statistics, and I think we can do a lot better.

Mr. Moriah, I listened with interest to what you had to say, and some other witnesses have made the same point. A piece of legislation can't be the be-all and end-all. We have to work from all angles to tackle the problem. I agree with you.

I think Mr. Doob or someone mentioned jobs, opportunities. No one is against those things. We're all in favour of jobs, opportunities, and resources. Some of the things we've done have been to put more law enforcement officers on the streets and at the border, dedicate resources to help prevent crime, and focus specifically on preventing at-risk youth from getting involved in street gangs and drugs.

We can do all those things, but I haven't heard from any of the witnesses that there's any place at all for the Criminal Code. I didn't hear any suggestions of how we can make this bill better. You say you're against the bill, but we do in fact have a Criminal Code that deals with a situation when, despite all our best efforts, someone has taken a gun and shot someone.

We can talk about root causes all we like and we can go back as far as we like, but at that moment that someone has taken a gun and shot someone, I don't think we should make excuses for that person. At that point, there's a role for the criminal justice system, I believe. Some of you may disagree, but I'd like to hear what you propose. What role do you see for criminal justice?

I'll give you all an opportunity to speak to that.

I do have to mention something. Concerning Dr. Levitt, we've heard testimony that mandatory minimums do deter, and we've heard testimony that they don't. Dr. Levitt, of course, is not here to defend himself. He was one of Time Magazine's 100 people who shape our world, for 2006. He is a senior fellow for the American Bar Foundation. Without him here to defend his own work, I don't quite take what my colleague Mr. Bagnell said, that all evidence that this would work has been debunked. I think you've made arguments on one side. There's other work on the other side. I would like some comment on that.

Mr. Kulik, you said your organization supported Bill C-68, and you oppose this Bill C-10. Bill C-68 was, overall, misguided. I think history now, after ten years, has looked at it as a total failure. The problem with Bill C-68 is that it went after law-abiding citizens and said you have to line up and register your duck gun, and it ignored gangs that use handguns on the streets. Those people did not register their gun. The evidence that I just cited from Statistics Canada says people continue to get handguns.

We talk about resources and what this bill will cost. Bill C-68 has cost over $1 billion. Imagine what we could have done with $1 billion wasted registering people's legal firearms. I have to say, on the cost associated with Bill C-10, firearm cases are, I think we'd all agree, very serious incidents, but they represent less than 1% of the national caseload. So what we're talking about overall, globally, in cost, we have to put in perspective.

I've touched on a number of bits of your testimony, I think all of you, except Mr. King.

I do want to mention one thing. This is not an American three-strikes rule. I appreciate hearing the American perspective, but this bill is focused on specific crimes. Gangs committing crimes with handguns--that's where the problem is. It's not a broad three-strikes rule. We don't have broad application of mandatory minimum sentences. It's very focused. And we've seen evidence that says when you have very focused use of mandatory minimums, it works, because it takes those who continue to commit crimes off the street.

So I'd appreciate all your comments on your testimony.

[Dr. Anthony Doob]

If I could start, I'd like to respond to each of those.

Obviously, I see a role for the criminal justice system when somebody has done a serious crime. I have no difficulty. It seems to me that we have to realize that the overall criminal justice system is a very important institution. It seems to me that what we are doing with the criminal justice system, when somebody has committed a crime, is we are looking for a fair way of apprehending and punishing that person. I have no problems whatsoever in doing that, and I believe very strongly that the sentences handed down should be proportionate to the harm that's done.

What I think we should realize, though, is that having the criminal justice system and criminalizing certain behaviours is important. The possibility that somebody is apprehended is important. The size of the sentence that's handed down appears from an enormous amount of research not to affect the levels of crime. So what we're talking about is not in any sense to say that the criminal justice system shouldn't exist, or that we shouldn't punish people, or that when they do serious things, we shouldn't punish them severely. What we're saying is don't look to changing the sentencing structure in the Criminal Code as a good way of solving the problem of crime.

The second thing I would like to do is talk about Steven Levitt. In the formal brief that's before you and that has been translated, I quote the responses Steven Levitt gave to the fact that he suppressed data. I quote it in its complete form. It's there available to you. So is his complete article. I'd invite you to read that as well as the other responses to it.

The difficulty, in any case, is that my argument is that if everything hinges on a favourable assessment of Steven Levitt's article, we're barking up the wrong tree. What we should be looking at is the overall impact of this kind of sentencing regime, and that impact has been studied in a number of places.

The final point I want to make is that everything has costs. I agree that there are other ways, and that this could be seen as part of the mix. But what we have to say is whether this is a good investment and the best investment in terms of the impact it's going to have on public safety. I think the evidence is in that it will not be.

[The Chair, Conservative, Art Hanger]

Mr. Kulik.

[Irving Kulik]

I don't want it to be inferred for a moment that we would just neglect the impact from having individuals using guns in the most heinous, the most dangerous ways, and so on. There are a lot of dangerous people in this country who are in prison. I've had, I guess you can call it, the opportunity to work with many of them for many years. Yes, they're very dangerous, and the right place for them is in penitentiary for the period of time required, until they can be safely reintegrated into society. And that decision is made in an objective fashion.

That said, where we differ perhaps is that we believe judges should be allowed to judge. They have all the facts in front of them. The defence made their presentation, the prosecutor theirs. The sentence, if a finding of guilt, comes about, and then the judge should determine, based on all the factors that are brought to bear, what the appropriate sentence should be for that individual.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Moriah.

[Royland Moriah]

I'll focus perhaps a little bit on the issue of the different strategies we can use. I'd like to make it clear right away that given the impact that gun and gang violence has had on the African Canadian community, we certainly are in favour of strong laws that do protect us from people who are using guns. We are a community that has been primarily impacted by gun violence, and I think I would do a disservice to my community if I said to you that it's not important to us. However, I think what we need to do is think critically about what we're trying to accomplish here. What we are trying to accomplish is safety for communities.

You did mention the importance of safety for victims as well. What we're trying to do is accomplish that through mandatory minimums, which is a system that we know does not work. So it's very hard for us to give suggestions on something that we know doesn't work. I think that's fundamentally the problem right now. You're asking us to give you some sort of idea of how we can improve a piece of legislation that fundamentally is flawed. As I said, we need to step back from that, and we need to look at the criminal justice system as a whole, as an important part of this process, because it is important, and recognize that we also have systems in place within the criminal justice system that are working. Part of that, as Mr. Kulik said, is the idea that judges are there to judge and can make decisions, in particularly heinous crimes, that somebody needs to be locked up.

It's not that I'm against that; it's just that we have to look at the processes we're using to make sure they are going to be effective, to make sure that our communities are safe. And we believe that Bill C-10 doesn't do that.

[The Chair, Conservative, Art Hanger]

Mr. Moore, did you want to check something out with him?

[Rob Moore, Conservative, Fundy Royal, NB]

You've stated that it does not work. We've heard compelling testimony, from Toronto and elsewhere, that when you take individuals who continually victimize others with guns out of the community, when they are not in the community and they're detained, the violent crime goes down. I haven't heard anyone persuade me that when someone is in jail, whether they're being rehabilitated or not, whether they were deterred by the sentence they got or not, when they're in jail for that period they are not out on the street committing crimes. I think that's evident.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moore.

Mr. King, you wanted to....

[Ryan King]

I want to echo my colleague's remarks.

Nobody's suggesting that for handgun crimes, when there's violence involved, that these people are not going to prison. I think the distinction is the role that mandatory minimums play and their tendency to overreach. From our experience, the fact of the matter is that if you have tough sentencing, but you retain judicial discretion, you will have the punishment.

Nobody's saying that these people shouldn't be incarcerated, but it's when mandatory minimums come in and they have this overreach and a lot of other individuals who don't belong there get pulled in that it becomes dangerous.

I have just a quick clarification on your point about the three strikes issue. I completely agree with you there, but the mandatory minimums I was describing in the paper are equally as focused as the ones you're talking about here. We have a wide range of mandatory minimums, but each individual one, such as the one I mentioned concerning Mr. Weldon Angelos, which was about the presence of firearms during a drug trafficking crime, is often tailored to be for a very specific situation. So I wasn't referring to sort of a broad mandatory minimum. But they are focused pieces of legislation.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. King.

We'll go to Mr. McKay.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you, Chair.

Normally I sit on the finance committee, Chair, and I don't think I've ever had a panel that was so of one mind in seeing this bill as irredeemably flawed, so this is a bit of an education.

I want to address my first question to Professor Doob with respect to the data and your very helpful analysis. When you look at the full amount of data on rape, robbery, burglary, and firearms, the trend lines seem to operate independently of the minimum mandatory laws. In other words, aggravated assault is actually, at this point, in 1989—I can't quite read that, maybe it's 1999--higher than it was before, whereas burglary is down, robbery rates in a number of the years are actually higher than they were before the law, and there doesn't seem to be any kind of clear trend with respect to rape, other than that it seems to be going down.

Is there any particular reason for that? Am I right in my assumption that it just simply seems to operate independently of minimum mandatories?

[Dr. Anthony Doob]

I think what's clear is that it's independent of the change in the law that occurred in June of 1982. What we see toward the end of the 1980s in California is actually what you see across the United States during that period of time, which was that from the mid to late 1980s up until the early 1990s, there was an increase, and you're seeing that in California.

In this particular context, obviously the focus is largely on what was happening around the time of 1982, because Levitt's main argument is that there's a drop from 1981 to 1983 as a result of the change in law and what you see is a pre-existing trend.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Thank you.

Apparently a Professor Lee was here and supported the issue of minimum mandatories.

[Dr. Anthony Doob]

I did receive a copy of a PowerPoint presentation. I don't know whether it was presented to the committee or not.

[John McKay, Liberal, Scarborough—Guildwood, ON]

Do you have comments on that?

[Dr. Anthony Doob]

In terms of the deterrent issue, he focused largely on Steven Levitt's work. Steven Levitt is, as I said, in large part because of the book Freakonomics, a very well-known person. There are very serious concerns above and beyond this particular study that Professors Webster and Zimring and I did. There are very serious problems that have been raised about a number of different things that Steven Levitt has done, including things like simply not presenting the results of analyses, which are in fact the ones that he describes. Conveniently, certain variables are left out of the equation, which changes dramatically what his findings are.

Mr. Lee, in terms of deterrence, depended largely on two things. One was Steven Levitt's assessment, which I'm saying is fundamentally flawed in large part because of the rather cavalier fashion in which he deals with data, and the second one is the issue of Florida. I couldn't tell from the PowerPoint when it was, and I wasn't able to find on the web the transcription of this committee, so I wasn't able to see when it was Mr. Lee indicated that the change in the law in Florida happened.

The two figures I have here are from a much more detailed study than Mr. Lee's study, because what it did is not only just plot the crime during the 1990s, but it also did quite a sophisticated statistical analysis on overall crime, on violent crime, on homicides, on homicides with firearms, and, again, found no evidence whatsoever.

To answer your question, I go back to Mr. Lee's testimony before you, and I wonder what it was he was saying. These are all public domain articles in refereed journals that are available on the web. These are not in obscure places; they are in the major journals in criminology. He presented information to you that was accurate in the sense that he and I are talking about the same overall trend in Florida crime. The figure I presented from a research piece happened to have in it when the law changed, and it also went back further. My feeling is that what you have to do is look at the overall figure. I think when you do that you see very different things.

Similarly, for example, saying crime is higher than it was in 1962, we do know that. There is no question of that. The question is, what's the relevance of that to Bill C-10? It seems to me that one has to say not whether crime is going up or crime is going down. I would be making exactly the same arguments to you about mandatory minimums whether crime was going up or down. That's not relevant. They either work or they don't. It doesn't matter whether crime is going up. If it's going up or down, we should be doing something.

To go back to the earlier question that was put to me, it does seem to me that when we have 600-and-something murders a year in Canada, that's too many. I don't care if it's already going down; I'd argue it's too many. So we can have fewer maybe in 2006 than we did in 2005, but that doesn't make me feel any better. We should be looking for effective ways of dealing with crime whichever direction it's going.

Mr. Lee was dependent on, in a sense, saying crime is out of control and we've got to do something. We've got to do something, but let's do it effectively.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Doob.

Mr. Ménard.