Justice Committee on Dec. 6th, 2006

[Dr. Anthony Doob]

Thank you very much.

To understand whether increased penalties affect crime, I would suggest that you have to look at the overall weight of evidence. The conclusion that Professor Webster and I came to, based on a thorough survey of the evidence, especially that which was carried out in the last fifteen years, was that variation in the severity of sentences does not affect crime rates.

The reviews that come to different conclusions have generally looked selectively only at the occasional paper that finds some evidence that harsh sentences deter. In other words, for more than 25 years, the overwhelming weight of evidence has been consistent with the conclusions that harsh sentences, in legislation or in practice, will not have any consistent or appreciable impact on levels of crime in the community.

I would now like to turn to two sets of data that have received a lot of prominence here in Ottawa. Each of these has been used to demonstrate that harsh sentences deter. The first example comes from an analysis of a paper that has been referred to in the context of the current bill. It seems that when the deterrent impact of harsh sentences is raised, the name Steven Levitt, one of the authors of the best-selling book, Freakonomics, is mentioned, and his paper with Daniel Kessler, published in 1999, is cited.

On the basis of their evidence of the effects of the June 1982 California initiative, Proposition 8, these two economists concluded that the increase in sentence severity that came into effect in June 1982 was responsible for the reduction in crime in California. As a result of this 1982 change in sentencing laws in California, sentences for certain crimes committed by repeat offenders were made considerably longer. From a deterrence perspective, the change in sentencing laws was seen as a good opportunity to test the deterrence theory, since the change in the sentencing was dramatic, sudden, and well publicized. The typical finding is what's shown here, and it is also shown in the translated document.

These are data from Kessler and Levitt's original paper, and what you see is the timing of the law changes marked by the vertical line. From this graph one could easily conclude that crime was going up until the time the sentencing law in California became dramatically harsher. Crime then dropped dramatically, immediately after the law, one could conclude, and these would obviously be quite impressive results.

The findings are similar for four other crimes that were covered by the change in law. Crime went up before the change in the law, Kessler and Levitt's data would show, and then dropped dramatically afterwards. It's no wonder that the supporters of the current bill have repeatedly cited this single study by a quite famous economist, but I'd like you to look again at these data.

Look at this curve carefully and what you'll see is something that's quite peculiar. Levitt, in the published paper, presented data only for the odd-numbered years. That's what's in the figure; that's what was in his paper.

Let's look at the full set of data that were never publicized and never presented in this very highly cited paper on deterrence. This slide simply adds the even-numbered years. The data for the odd-numbered years is identical to what you saw before. Again, the vertical line is when the law change occurred. Unlike the partial set of data, which Kessler and Levitt relied on, what you see is that crime was going down, and started going down before the law changed. The other offences examined by Kessler and Levitt, which were subject to these especially new harsh sentences, show the same kind of pattern.

On the left of these panels, I've presented the data as published by Kessler and Levitt. On the right panel, all I've done--all, in fact, Cheryl Webster, from the University of Ottawa, and Frank Zimring, from California, and I did--was to add the data for the even-numbered years. By choosing, as Kessler and Levitt did, to present the data only for the odd-numbered years, they gave you a picture of the trends that is completely different from the picture you see when all of the crime rates for all of the years are included.

If you wish, you can look at the monthly data to get a more exact estimate of when the crime drop occurred. We did this as well. Here's one example of it. Again, we marked the time when the law changed by the vertical line, and what you see is that the crime drop started before the law changed, not after, as you would expect if it were the law that was responsible for the change in crime rates.

These graphs are part of a paper that I co-authored with Professor Webster, and Professor Franklin Zimring, from the law school at the University of California, Berkeley. Professor Zimring is one of the world's experts on deterrence, having written extensively on deterrence, beginning with his classic book on the topic in 1972.

As you can imagine, Professor Levitt is not very pleased with our analysis. The best one can conclude I think from Levitt's very interesting, very selective use of data is that it would be risky to base any policy on a study such as this.

About a year ago, in the last session of Parliament, when you were examining Bill C-215, you had a witness before you who indicated that sentence enhancements had helped to drive down the rate of violent crime in Florida. His evidence, like that of your local witness last week, concluded that Florida's 10-20-life law may have sounded convincing. The implication of their statements is clear: tough sentencing regimes drive down crime.

I'm old-fashioned. I think you should look carefully at the data. From the data I presented to you at the outset, you should already be skeptical about such assertions. Crime was already on the downward trend in the United States. Violent crime peaked in the United States and Canada in the early 1990s and then drifted downward.

So let's look at this trend in California. The next two figures show total index crime, which is a measure of the total more serious kinds of crime, and index violent crime for Florida in the 1990s. The timing of the implementation of the so-called 10-20-life law in Florida is marked again by the vertical line.

If you look at this figure, or the next one, which deals with violent crime, the problem with the inference that the law created a change is immediately evident. Crime was going down anyway. If these two figures didn't have a vertical line in them showing where the law change took place, you wouldn't have any idea that anything special was happening. Crime was going down in Florida, just the way it was going down in other parts of the United States and in Canada. There is no evidence that the change in law changed anything.

There are obviously many more studies on this topic. The best research examines more than one jurisdiction and attempts to control for other factors known to correlate with crime rates. Considerably more sophisticated studies have been carried out.

In the United States in the 1990s, largely as a result of the popularity of the so-called three strikes laws, many U.S. jurisdictions brought in very harsh sentencing regimes for at least some offences. Some studies have looked, overall, at the impact of these sentencing changes. One set of investigators, for example, examined the impact of the sentencing changes on seven different crimes in 21 states, using the data from states where no changes were made as a form of a control.

This slide shows you a summary of their findings. The authors report that there were as many increases in crime as there were decreases that followed the imposition of three-strikes sentencing laws. Clearly, it is just as inappropriate to focus on only those changes in the law where crime decreased as it would be to focus on those instances where crime increased after sentencing got tougher. But these findings do show you the dangers of taking isolated findings out of context.

There are two other sets of problems with mandatory minimum sentences that I would like to mention. It is almost inevitable that mandatory minimum sentences will result in disproportionate sentences for at least some offenders. We already have a requirement in the Criminal Code that sentences must be proportionate to the severity of the offence and the offender's responsibility for that offence. It is my impression that most Canadians endorse proportionality in sentencing.

Clearly, Parliament, in attempting to constrain judges with mandatory minimum sentences, is purposefully sending the message that it does not trust judges to judge the severity of offences. But in addition, mandatory minimum sentences almost certainly force judges to hand down sentences that violate section 718.1, the proportionality principle in sentencing.

If the proportionality principle needs strengthening in the Criminal Code--and I, for one, believe it does--then there are ways in which this can be done. But mandatory minimum sentences have been shown repeatedly not to be an appropriate tool to accomplish this goal. There are other harms that can come from proposals such as this one. If the Parliament of Canada were to approve Bill C-10, it would be telling Canadians that Parliament can make our communities safer by increasing mandatory minimum sentences. This is, quite simply, a false promise. If you were to vote in favour of this bill, therefore, you would be, in my opinion, making a promise to Canadians that is known to be false. But it is worse than that. Focusing on such matters as mandatory minimum sentences also distracts you, the Parliament of Canada, from considering approaches to crime prevention that might actually make our communities safer. In other words, by convincing yourselves and others that the proposals such as this one will improve our communities, you necessarily do not adequately consider approaches to crime prevention that would improve our communities.

Thank you very much.

[The Chair, Conservative, Art Hanger]

Thank you, Professor Doob.

We will now have the African Canadian Legal Clinic. Who will be presenting?

Mr. Moriah, please go ahead.

[Royland Moriah, Policy Research Lawyer, African Canadian Legal Clinic]

Thank you, Mr. Chair.

Thank you very much for the opportunity to appear before the committee today. My name is Royland Moriah. I'm the policy research lawyer at the African Canadian Legal Clinic. With me today is Charlene Theodore.

I'd like to apologize at the outset for not having our written submissions. I know there obviously was an issue with Mr. Doob's submission, at least with respect to his slide not being available or translated. Unfortunately, ours isn't translated yet, but I have spoken to the clerk and she has assured me that it will be done and will be available to the members of the committee as soon as possible. I would urge you to contact me if you do have any specific questions with respect to those submissions after you have received them.

I'll give you a little bit of information about the African Canadian Legal Clinic, which I'll refer to as the ACLC throughout the course of my submission. We're a specialty legal clinic funded by the Ontario legal aid system. We conduct legal work aimed at addressing systemic racism and racial discrimination in the province of Ontario. We engage in our work using a test case litigation strategy. To that end, we've represented litigants at tribunals and all levels of courts, up to and including the Supreme Court of Canada. We also monitor legislation—that is why I'm here today—and engage in advocacy and legal education in eliminating racism, and anti-black racism in particular.

Criminal law issues and issues of racism and discrimination in the justice system, of course, are central to our mandate. As noted in our brief, which you will hopefully have an opportunity to read, we've been involved in a number of interventions at all levels of court. For example, we were involved at the Supreme Court of Canada, in Regina v. Spence and Regina v. Williams, which dealt with addressing issues of race in jury challenges for cause; and Regina v. Golden, wherein the Supreme Court outlined strip search procedures for police. At the Court of Appeal, we were involved in some of the seminal racial profiling cases, including Regina v. Brown and Regina v. Richards. More recently, we've been involved in a lot of policy work, particularly with respect to Justice Patrick Lesage's review of the Ontario police complaints system. And this past summer we had part II standing in the Ipperwash inquiry, wherein we provided the inquiry with a report on police use of force.

We're very pleased to have an opportunity to present submissions on Bill C-10, as criminal justice issues are obviously very important to the community we serve. As already noted, numerous reports from jurisdictions across Canada and from all levels of court have raised concerns about the impact of race on the Canadian criminal justice system.

It probably comes as no surprise to many of the people on the committee, because the information is out there, that African Canadians are particularly overrepresented in the criminal justice system. For example, in the recent 2001 census, African Canadians represented approximately 4.5% of the population. However, the federal offender management system, as of this past April, indicated that African Canadians right now comprise 16.1% of federally incarcerated individuals.

Many reports have noted that the overrepresentation of the African Canadian community is due to systematic over-policing. Research by criminologists such as Scot Wortley, from the University of Toronto, have confirmed that African Canadians are targeted by police, and African Canadian males, particularly young males, generally are at greater risk of being stopped and harassed, and thus more likely to be charged with an offence.

The issues that are raised by Bill C-10 are of particular importance to our community, especially the community in Toronto. As most of you have probably seen from the media reports that have been out there over the past year and a half, there has been a rash of gun violence in Toronto over the past year and a half, and it has particularly impacted our community. Given this reality, we submit that there's a clear need to develop effective strategies for addressing this problem.

As noted in our brief, since the outbreak of gun violence, our community has in fact called for strategies that address the root causes of gun crime, with a focus on preventing gun crime from happening rather than punishing its effects. I would submit that most Canadians would agree with us that it's not good enough for us to react to the issue of gun crime and put people in jail after people are maimed and killed, but to prevent it where possible, to prevent the loss of life.

Part of the approach that we had recommended, recognizing that this is a complex issue that will require a multi-faceted approach, was the need to increase funding for services in at-risk communities. It was the need to re-establish many of the social programs that had been cut by the successive governments over the past decade or so. These are governments at all levels, too--both the provincial level and the federal level through transfer payments.

However, our concern with respect to Bill C-10's approach to dealing with gun violence is that at best it is simplistic and at worst it is a reckless response to gun violence. Instead of considering the causes of gun crime and implementing effective strategies, we are essentially relying on rhetoric and ideology, giving the appearance of action while doing little to truly address the problem. It is the ACLC's submission that the proposed Criminal Code amendments won't be effective because they fail to address the complexity of the problem of illegal guns. Unless we commit to recognizing and addressing these underlying causes, we cannot have effective strategies for addressing the problem.

While there are numerous problems that arise out of the proposed mandatory minimums—Professor Doob has raised some of them, and I'm sure you've heard quite a few over the course of the hearings into Bill C-10—my submissions for the ACLC will focus on three main issues: the impact of mandatory minima on the fundamental principle of proportionality—to which Professor Doob has alluded somewhat; the recognized ineffectiveness of mandatory minima—as Professor Doob and I'm sure many others have raised again and again before this committee; and particularly important to the people we serve, the impact of mandatory minima on African Canadians and African Canadian communities, and I would also say communities at large across Canada.

With respect to the principle of proportionality, as Professor Doob noted, sentences under section 718.1 of the Criminal Code should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minima distort this principle by removing judges' ability to consider other relevant factors, including aggravating and mitigating circumstances. As noted in an article by Julian Roberts:

A mandatory sentence prevents judges from modulating the severity of the sentence to reflect the seriousness of the offence and the degree of blameworthiness of the offender.

An example given by Ms. Sue Barnes in her speech to the House, which is actually referenced in our written submissions--and again, I'm sorry that you don't have those available to you--highlights the importance of judicial discretion in the sentencing process. What she talked about was a situation where somebody without a criminal record who's carrying an unloaded gun would actually, under the proposed amendments, get a higher sentence than somebody with a criminal record with a loaded long gun. I think right there that raises some issues with respect to the issue of proportionality.

This is only a very limited example; there are many examples. This is something we really have to consider, how this will impact the criminal justice system and the way our sentencing procedures work under the system.

That's why it's important to consider the role that judges do have. They are uniquely situated to assess all the circumstances of an offence to fashion a suitable sentence that takes into account all the relevant factors, including the need for deterrence, rehabilitation, and protection of society where it's demonstrably necessary. Mandatory minimum sentences usurp this critical role of judges, and they will result in disproportionate sentences. The evidence is clear. They will not adequately consider all the circumstances that are necessary for the proper functioning of proportionate sentencing under the criminal justice system.

In terms of effectiveness, I know I'm probably beating a dead horse, because this is something that has been talked about again and again by probably many of the people who have appeared before this committee and the many people who have a lot of expertise, more expertise than I do in this area. There's just no doubt that mandatory minima do not work. This debate isn't new in Canada. It has been going on for quite some time. The last sentencing commission looked at sentencing commissions and law commissions over the course, I believe, of 40 or 50 years and noted that none of them endorsed mandatory minimum sentences as an appropriate response in the criminal justice system. They were quite clear that they simply do not serve their stated purpose of deterrence or incapacitation.

Recent research done by academics or even commissioned by government departments also concludes that mandatory minimums are not effective. Reports from other jurisdictions--primarily a lot of research in the States and also research in Australia, because they followed some of the mandatory minimum sentences provisions in their country--also confirmed that mandatory minimum provisions do not lower crime rates, do not serve as a deterrent, do not have an incapacitation effect, do not work. In fact, jurisdictions in the States are now moving away from mandatory minimums as lawmakers are starting to understand that they have gone down the wrong path, that these are not effective, and they have a very detrimental impact on the functioning of their criminal justice system.

Even the legislative summary for Bill C-10 noted the questionable effectiveness of such provisions. Yet, under the guise of being tough on crime, the government has introduced amendments that, given the available research, you should be well aware, will do little to address the problem of gun violence.

[The Chair, Conservative, Art Hanger]

Mr. Moriah, would you conclude as quickly as possible?

[Royland Moriah]

I certainly will.

I'm just going to raise a couple of issues with respect, obviously, to the impact on the African Canadian community. It's going to take a couple of minutes, and then I'll conclude.

It's our submission that given the widespread acknowledgement of the ineffectiveness of mandatory minimums, the government should not move forward with these amendments. As rightly noted by Thomas Gabor and Nicole Crutcher in their research for the Department of Justice:

The severity and inflexibility of some mandatory sentencing policies is such as to place a special onus on proponents to demonstrate that their economic and human costs, as well as their incursion upon the judicial role in sentencing, is warranted by their preventative and other benefits.

We're particularly concerned about the human costs to the African Canadian community as well. As I have already stated, these are costs that are going to impact not only our community but communities across the country. There is ample research that highlights a disproportionate impact of mandatory minimum sentences on African Canadians and on aboriginal accused.

There is no doubt that racism affects our criminal justice system. We have numerous reports from jurisdictions across Canada. I won't mention them. They are mentioned in our report, and you can certainly take a look at them yourselves. A major factor in the overrepresentation of groups in the criminal justice system is the reliance on discriminatory stereotypes. Often these stereotypes come into play in discretionary decision-making. This is particularly important in a situation that involves mandatory minimums, because mandatory minimums remove the discretion from an accountable process before an impartial judge and place it with police and prosecutors who have no accountability, whose decisions cannot be reviewed, and who, because of that, have even greater leverage over accused persons.

This occurs because accused, in certain situations in which they are faced with mandatory minimums, are willing, whether or not they are culpable of a crime, to take a lesser sentence to avoid the possibility of a longer mandatory minimum term. For African Canadians and for all Canadians, it is vitally important that critically important criminal justice concerns such as sentencing occur in an open and transparent process that's open to challenge where necessary.

Mandatory minimums are also problematic because people have the idea that they will increase safety within the community. Our concern is that mandatory minimums do not have a long-term impact on safety in communities. While they certainly will help in having people incarcerated, there is a concern, particularly for marginalized communities into which many of these people will return, that they are invoked without other available options being considered, which might be more useful.

We know that in terms of some of the gun violence that's happened in Toronto over the past year and a half, a lot of the people involved in these issues were young males. Our concern is that there are other options available, whether they are community-based or whether they are extra-judicial sanctions, which should be considered to help prevent these people from becoming more involved in the criminal justice system through incarceration among more hardened offenders.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moriah.

Your presentation has been going on for some time now. Generally, we like to keep them down to around ten minutes. Yours is close to fifteen minutes already. If you have other points that you would like to bring forward, you can do so in the question period, if that's all right with you.

[Royland Moriah]

It's not a problem.

If any of the committee members have any questions, I would be willing to entertain those.

[The Chair, Conservative, Art Hanger]

Yes. It will follow all the presentations here.

Thank you.

Mr. Kulik, if you would, please.

[Irving Kulik, Executive Director, Canadian Criminal Justice Association]

Thank you, Mr. Chairman.

Thank you for inviting us here to give testimony regarding Bill C-10.

I believe you all have received the French and English versions of our presentation.

This afternoon, I would like to give you a brief summary of what has already been presented. I hope you don't mind.

I am the Executive Director of the Canadian Criminal Justice Association. Before assuming this position, I worked for the Correctional Service of Canada for 35 years. For most of those years, I held senior positions.

The Canadian Criminal Justice Association is one of the longest-serving, non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada. The CCJA began its work in 1919, and it has testified before this committee on numerous occasions.

Our association consists of over 700 members. It publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the Canadian Congress on Criminal Justice every two years.

We are not an advocacy group for offenders. Our mission is to promote a humane, equitable, and effective criminal justice system. We support research-based and reasoned policies that lead to such an effective criminal justice system for Canada.

Mr. Chairman, our association welcomes the initiative of this government in putting forward a proposal designed to deal with the problem of gun crime. Our concern with needless deaths of Canadians as a result of gun crimes goes back decades. Indeed, our organization provided testimony to the subcommittee on firearms control, on then Bill C-17, in August 1991. In that brief, we hoped that our recommendations would lead to a reduction in criminal activity involving firearms, a reduction of unnecessary deaths, and better control of firearms.

In May 1995, we provided evidence to the justice and legal affairs committee concerning Bill C-68, an act respecting firearms and other weapons. We supported the passage of that bill, with the exception of mandatory prison terms. I quote:

Our association has a long history of opposing mandatory sentences. Of course, the sanctions fail to take into consideration individual characteristics of the offence as well as that of the offender. They tend to shift discretion away from judicial officers toward the police and prosecutors. They increase populations in overcrowded penitentiaries. They are often the subject of plea negotiations. They undermine the totality rule in sentencing and they often increase both the costs and time of litigation in our courts.

Finally, the evidence isn't clear that mandatory prison sentences deter those planning to use a weapon in the commission of a crime.

It would appear that certain problems and deemed solutions are intractable.

Today I'm here to tell you that, with respect, our association has some grave reservations concerning Bill C-10. I will outline them briefly and look forward to your questions and comments.

First we need to ask ourselves what we are trying to accomplish with new legislation. Obviously, the government is attempting to implement new measures in order to ensure greater safety for Canadians. Every Canadian should agree with this intent. As a citizen, as a father, and as a husband, I want to be sure that my family and my neighbours are as safe as can be. How safe? Based upon what we read in the newspapers, probably safer. I want to be sure that they can go about freely wherever they need to be—be it in school, shopping, or at work--without fearing assault or injury.

So how does Bill C-10 intend to do this? By increasing the criminal sanctions for offences involving firearms. We already have mandatory minimum sentences for about 40 criminal offences, including a number for gun crimes, that were instituted in 1995. How well are they working? Are they not harsh enough and thus potentially leading to the commission of more crimes?

I can tell you that in 12 years of direct daily contact with inmates, I never met one who indicated that he would not have committed a crime had the potential sentence been longer. Few ever remarked that they used complex decision-making models, dependent upon the length of sanction, before committing a crime.

Evidence presented here today by us and others, and that we cited in our paper, demonstrates that there is no relationship between the length of a sentence, in particular a mandatory sentence, and deterrence of crime. If anything, it is a certainty of apprehension and rapid sanction that may deter a criminal act.

What then is left but greater harshness of punishment? If that is the case and the intent of the legislation, we need to turn to an enormous meta analysis that reviewed 111 studies, involving 442,000 offenders, which was carried out by Paul Gendreau and his correctional research colleagues in 2002, on behalf of the Solicitor General of Canada. This study seemed to indicate that, if anything, harsher punishment may have led to a 3% increase in recidivism. Again, as has been cited, many of the jurisdictions that evoke the harshest punishment, including the death penalty, have the highest rates of violent crime.

Bill C-10 will further blur the lines between police, prosecutors, and judiciary. By further moving judicial discretion and sentence determination, discretion will be enhanced for police in charging and for crown counsel in prosecuting offences. The impact will be more plea bargains for those who are less guilty but fearful of mandatory minimum sentences--as has been stated a moment ago by my colleague--and as well, curiously, lengthy trials for those who might normally admit their guilt were it not for a lengthier mandatory sentence.

We need to reiterate the impact this will have on the correctional side of criminal justice as well. Obviously, the number of inmates will increase. At the provincial and federal levels, it will lead to even greater burdens on overcrowded facilities, more double-bunking, and increased risk to staff and defenders.

Programs that have a positive impact in safely reintegrating offenders will become even harder to obtain in a timely fashion, because mandatory sentences have a negatively differential impact on the disadvantaged. We can expect a further increase in the number of offenders who would best be served by the mental health system rather than the correctional one. The proportion of aboriginal offenders will grow further, even though they're already overrepresented by a factor of six or seven in penitentiaries relative to the Canadian population at large. The number of incarcerated aboriginal women in particular will continue to expand beyond all reason.

Finally, Mr. Chairman, we need to consider the cost of more inmates serving longer sentences. Certainly one could say that no cost to ensure public safety is too great. However, if the measures adopted do not work or, worse, have the opposite effect, then the expenses incurred are wasted money and wasted resources that can better be used for Canadians' health care, educational opportunities, and other social needs, which will also in fact assist those communities that suffer daily from the effects of crime. It's by investing in these causes that we can indeed have a positive impact in reducing crime and assuring public safety.

Thank you, Mr. Chairman. Although I made most of my presentation in English, I will be very pleased to answer any questions in French.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Kulik.

And finally Mr. King from The Sentencing Project.

I gather that's an initiative that you are reporting on to this committee.

[Ryan King]

I'll describe the organization.

[The Chair, Conservative, Art Hanger]

Please do.

[Ryan King]

Thank you, Mr. Chairman.

Good afternoon.

I'm Ryan King, a policy analyst with The Sentencing Project, a criminal justice policy organization located in Washington, D.C.

Our mission is to broaden the discussion regarding criminal and justice policy in the United States by bridging the gap between research and the policy and practitioner community while working toward a humane, fair, and effective criminal justice system. The Sentencing Project has been engaged in research and advocacy regarding the implications of mandatory minimum sentencing policy for two decades. We are a leading independent, non-profit organization that has authored a number of ground-breaking research publications and policy reports on sentencing issues in the United States. We welcome the invitation to address the standing committee about the American experience with this approach.

I would like to draw your attention to two important conclusions about mandatory minimum sentencing garnered from decades of accrued experience in the United States. First, empirical research has demonstrated that mandatory minimum sentencing fails to achieve the intended goal of a reduction in criminal offending, and secondly--

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

Slowly, because we have the translation, and what you say is important.

Merci.

[Ryan King]

First, empirical research has demonstrated that mandatory minimum sentencing fails to achieve the intended goal of a reduction in criminal offending.

Secondly, this twenty-year experiment with mandatory sentencing has had catastrophic consequences for law enforcement in the criminal court system. We strongly recommend that this committee look to the United States as a cautionary example of the perils of resorting to mandatory minimum sentences to address criminal conduct.

In the interest of time, I would like to focus my oral remarks upon the second conclusion. In August 2003, the United States Supreme Court Justice Anthony Kennedy called for wholesale reform in the American system of criminal sentencing. He stated that our “resources are misspent, our punishments too severe, our sentences too long”.

Justice Kennedy, referring to the mechanisms of conviction and sentencing as “the hidden world of punishment”, was particularly critical of mandatory minimums as a primary catalyst for fundamental inequities and flaws in the American federal court system. He said that he “can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.” Justice Kennedy was referring both to the ineffectiveness of mandatory minimum sentences, as well as to the impact they have had on the criminal justice system and the community.

The consequences of mandatory minimum sentencing on criminal case processing have been significant, often in unintended ways. Legislatively mandated sentences undermine the independence of judiciary and shift the authority of crafting appropriate sentences from judges to legislators.

Judges are trained to consider the accumulated facts and circumstances of a criminal event, the characteristics of the defendant, and to use their institutional wisdom to develop a suitable sentence. The independence of the judiciary is a hallmark of the American system of checks and balances among the three branches of government. The discretion reserved to judges permits the consideration of such relevant factors as a defendant's personal and criminal history and his or her role in the offence, which can help an independent arbitrator determine just culpability.

However, mandatory minimums, in which legislators take on the role of judges and determine culpability largely by single factors, such as the weight of a drug or the presence of a handgun, usurp this independence and threaten the carefully orchestrated balance between the governing branches. Moreover, mandatory sentences frequently expose defendants to punishments substantially disproportionate to the charged conduct.

Mandatory minimum sentences also threaten the independence of the United States Sentencing Commission, an agency in the executive branch. In the Sentencing Reform Act of 1984, the legislature created and charged the commission with developing a comprehensive set of federal sentencing guidelines, using evidence-based analysis to calibrate a punishment adequately reflecting the seriousness of the criminal event.

However, the passage of numerous mandatory minimum sentencing laws has created a situation in which the more punitive statutory punishment trumps the suggested guideline range. Thus, defendants of lesser culpability, who might have faced a shorter guideline sentence, are subjected to the statutory minimum.

By exposing less serious offenders to punishments equal to more serious offenders, mandatory sentencing creates disproportionality that subverts the commission's underlying goal to craft just and fair sentences that accurately reflect the seriousness of the offence. Moreover, the commission has been compelled to adjust the guideline ranges upward to link the lower bound of the guideline range to any applicable mandatory minimum sentences. In doing so, the commission is adjusting sentence length, not according to evidence-based research but to the political will of the legislative branch.

The quintessential example of mandatory sentences resulting in disproportionate punishment is the recent case of Weldon Angelos. Mr. Angelos was arrested in 2002 after undercover agents made two controlled purchases of one-half pound of marijuana. An informant reported that during each of these purchases, Angelos had a firearm present. Although he never brandished the weapon, it was reported to be present in the automobile during the first purchase and in an ankle holster during the second purchase. When agents searched Angelos’ home, a handgun was found in a bag containing cash.

The presence of the handgun at the two controlled buys and at the house exposed Angelos to federal mandatory minimum sentence enhancements that are triggered when guns are present during a drug transaction, whether or not they're used. Each instance in which a firearm is present is counted separately. Consequently, Angelos faced a five-year mandatory sentence for the first controlled purchase and then two consecutive 25-year mandatory minimum sentences as a result of the second purchase and the firearm found during the search of the house. Bound by law to apply the 55-year sentence, the judge called the punishment “unjust, cruel, and even irrational”.

The Angelos case highlights fundamental flaws in mandatory sentencing, as defendants frequently are exposed to severe sentences out of proportion to the conduct with which they have been charged, while judges sit powerless to consider the circumstances of the offence and amend the punishment accordingly.

Mandatory minimum sentences are generally triggered automatically by a single element of a criminal act. For example, drug mandatory sentences are triggered solely by the weight of the substance. Potentially mitigating evidence addressing the sophistication of the role the defendant plays in the drug enterprise cannot be considered in determining whether a mandatory minimum sentence applies. In the case of a handgun enhancement, the mere presence of a weapon is sufficient to warrant a mandatory sentence. In cases such as these, the prosecutor's determination of what conduct to charge and how to charge that conduct is the single most important element in a criminal proceeding. Prosecutors, in making a charging decision, have the discretion to alter the outcome before the proceedings begin. This is an unconscionable tilting of power in an adversarial system that functions on the premise that equally situated parties are necessary to adjudicate a case fairly.

An additional problem raised by mandatory minimum sentencing is evidenced by prosecutors' arguments that these sentences are an important tool in pretrial negotiations with a defendant's counsel. A prosecutor has significant leverage in conducting negotiations and eliciting a plea bargain if the defendant is facing a statutorily mandated five-year sentence. This permits a prosecutor to use the proverbial carrot-and-stick approach: offering a plea deal to a lesser charge associated with less serious conduct, or threatening a mandatory minimum sentence should the defendant choose to exercise his or her right to trial.

This inequity in negotiating posture, exacerbated by the potential exposure to a mandatory sentence, perverts criminal case processing in two ways. First, defendants frequently do not face sentences that are reflective of their actual conduct. This is tragic in a criminal court system that is supposed to be premised on rationality and predictability. Instead, mandatory sentences create uncertainty and disparity in outcomes. A governing principle behind the Sentencing Reform Act of 1984 was to institute fairness in sentencing and equality between two similarly situated defendants. This goal is undermined by mandatory sentences.

Secondly, approximately 95% of the 70,000 annual federal cases are handled via plea bargain. However, the likelihood of being offered a plea is dependent on where a case is adjudicated and the type of offence with which a defendant has been charged. Moreover, the race of the defendant has been demonstrated as a significant factor in determining whether an individual receives a mandatory minimum or is offered a plea bargain. African American defendants are more likely to receive a mandatory minimum sentence and less likely to benefit from a substantial assistance or safety valve departure. The unchallenged discretion of the prosecutor makes it increasingly difficult to combat these inequities in sentencing, and mandatory minimums have only complicated matters.

Plea bargaining also reduces the likelihood that issues of innocence or misconduct by law enforcement during arrest will receive an airing before the court. Tactics of investigation and apprehension by law enforcement officers raise critical issues of constitutional protections regarding arrest, interrogation, and the procurement of evidence. Determining the legality of one’s arrest requires skilled representation of counsel and can often result in prolonged pretrial proceedings. Moreover, it is at this point where a defendant’s innocence may face its test before a judge. However, in order to litigate any of the aforementioned issues, a defendant frequently must decide to forgo an offer of a plea bargain and face a potentially more severe mandatory sentence in order to pursue his or her constitutional right to trial. A defendant seeking to pursue a court decision as to the validity of an arrest faces a trial penalty, in which the spectre of a longer mandatory minimum sentence will be the result of exercising this right. This fact often leads defence counsel to advise clients to accept the plea deal rather than challenge their arrest—yet another situation in which mandatory sentences thwart the guiding principles of fairness and equity in the criminal court system.

Mandatory minimum sentences have been shown to have a disproportionate impact on African American defendants. A study by the United States Sentencing Commission found that African Americans were 21% more likely to receive a mandatory minimum sentence than white defendants facing an eligible charge. The most egregious example of the racially disparate impact of mandatory sentences is federal cocaine sentencing, in which the possession of five grams of crack cocaine, about the weight of two sugar packets, can result in a five-year mandatory sentence, while possession of the same quantity of powder cocaine, a pharmacological equivalent, amounts to misdemeanour possession and no sentence to incarceration. Despite the fact that approximately two-thirds of regular crack cocaine users are white or Latino, 81% of persons sentenced in the federal system for a crack cocaine offence were African American.

These disturbing trends reflect differential patterns of law enforcement in which the war on drugs has been pursued disproportionately in communities of colour. As if this fact was not pernicious enough, the imposition of mandatory minimum sentencing exacerbates the impact of these practices by codifying racially disparate arrest patterns in federal statutory law.

I'd like to conclude by saying mandatory minimum sentences are a counter-productive approach to combatting criminal offending. They have been demonstrated to have little impact on rates of crime while having detrimental consequences to the operation and fairness of the American criminal justice system.

Moreover, with stiff penalties already residing within statute as well as within the federal--and state, where appropriate--guidelines, there is little need for the additional enhancement of a mandatory sentence.

Regarding firearm offences, the United States Sentencing Commission reports that the average time served for firearm trafficking and possession has doubled since the implementation of the sentencing guidelines in the mid-1980s. This increase in punitiveness has resulted independently of mandatory minimums. Thus, it is clear that a legislature can respond firmly to criminal offending and levy stiff sentences via sentencing guidelines while also preserving the independence of the judiciary and the integrity of the criminal court process.

On a personal note, I have lived and worked in the United States all my life, and I have worked on this issue. I do find it very disturbing to see a lot of the criminal justice practices that we have adopted over the last thirty years, despite the really extensive documentation of the failures and the costs...to see other countries picking up this language and picking up these practices. As if it's not tragic enough, the consequence to the American public, being responsible for exporting these practices internationally would add an additional burden, and it would be something that I really hope you take into very strong consideration.

Thank you.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. King.

And now to questions.

Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you to all the witnesses.

Mr. Moriah, I agree with everything you say, especially the root causes and the multi-faceted solutions, and the Toronto police chief said exactly that on the front page of The Toronto Star.

I have one question for you. Has the work of the court challenges program or of the Law Commission of Canada helped your organization at all?

[Royland Moriah]

It's actually interesting that you should bring that up. Certainly the court challenges program is something we did apply to for funding, up until this year, actually, for doing research and also for doing test case litigation.

Why it's important that you bring that up is because if we're looking at a multi-faceted approach that's actually going to deal effectively with gun violence and increases in crime, and is going to look at how we can appropriately address any issues we have with our sentencing practices here in Canada, I think we need to ask ourselves, first, why the Law Commission would be dismantled, and secondly, why we don't have a sentencing commission in Canada that could actually take a look at these things on a more holistic basis to come up with more effective strategies for figuring out sentencing in Canada.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Mr. Kulik, I appreciate what you said on aboriginal people. I'm not going to ask about it, though, because we've heard it before and we all agree, at least on this side.

The Liberals' basic goal in all this is to make Canada safer for the victims, so they're not reoffended against, or for other citizens. And we're making our decisions based on facts, not on people's misconceptions or rumours or emotion.

We've had a great deal of evidence. It's been wonderful.

And it's great, Mr. Doob, to have you here because I know you're one of the acknowledged experts. And you're not just talking about one paper because you have done a review of all the recent literature, so it's much more broad. There were only two pieces of fact-based evidence that we had that suggested this law might be helpful and you have debunked them both.

I just want to put on the record that this committee now has no scientific, fact-based evidence suggesting that any MP should vote for this bill.

I have a question on something you didn't address at all. Mr. Kulik, Mr. Doob, and maybe even Mr. King could answer this.

A lot of witnesses have suggested, including the police, that when you put a person in prison, the longer they're in prison, the more criminal tricks they learn, the more they get socialized to criminal life, the less hope there is for a normal lifestyle, the less socialization they get with their family, and indeed, generally, they become more dangerous as opposed to less dangerous. But I don't know, once again, if we're going on fact-based evidence. No one has mentioned that topic at all. I wonder if there have been any studies done on that.

[Irving Kulik]

Do you want me to start?

I don't think anybody would suggest that going to prison is recommended for an individual in Canada. That's quite clear. It's not a prescription for success in the future. Certainly, individuals pick up a lot of traits or tricks in bad company, and that's not going to be good for them.

On the other hand, I think to be fair, certainly at the federal level over the course of the last ten to twelve years, a lot of creative programs have been developed that actually have an impact on some of these individuals. We're dealing with cognitive behavioural approaches to assist offenders in learning how to cope with various problems. It's problem solving, essentially.

Individuals frequently come from a background where they've learned over time to react to situations in a particular, violent fashion. You have to unlearn some of those traits, and some of the programs that have been developed have been very successful.

The research that Correctional Service Canada has done, and others as well, demonstrates a very significant impact when these programs are delivered to the end. What they've also discovered, interestingly, is that those individuals, those inmates, who don't continue the programs to the end tend to become the highest risks.

[Dr. Anthony Doob]

In addition, I think there are two separate issues. One is programming and one is being in prison. There certainly are some studies that would suggest the programming outside of prison is likely to be more effective, part of it being that what we're talking about in Canada is we have relatively few.... At the moment we have about 32,000 people in prison. Most of those are going to get out; a very small number will not.

So what we have to think about is not just the fact that we put them in prison, but rather that we have to reintegrate. The longer you put people in prison, or rather put them in prison as opposed to looking for something else in particular, you make it more difficult for them to come back and live a peaceful life.

I have no problem in suggesting we have to send some people to prison, and there are some people, in a simple proportionality model of sentencing, for whom we're not going to be able to figure out anything other than prison. I have no difficulty with that. I think the argument is that we're not really making ourselves safe by doing that. What we may be doing, by having a certain number of people in prison, is accomplishing a proportionality model of sentencing.

Without calling it what it is, what we've really got in the sentencing system is a punishment system, and what we're looking for is a fair punishment system. If we're looking to reduce crime, we should look elsewhere.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. King.

[Ryan King]

Just briefly, approximately 650,000 Americans come out of prison every year, to give you a sense of the scale in our country. One of the buzzwords in Washington in the last five to six years has been this notion of re-entry.

These numbers have become so significant that we have been forced to reckon with the fact that almost everybody who goes into prison does come out. So we've had a lot of research around the re-entry process over the last five to six years, and I think it will inform your question to some degree.

The two most important factors to a successful transition out of prison--for the one-third of people who are not re-arrested and go back within three years of release--is being able to find housing and employment upon release. The longer people are incarcerated, the more difficult that is. The successful keys are often individuals being able to keep connections to their family networks. That's often their only support system. The only person who's likely to hire them may have been the person for whom they had worked in the past who's willing to give them another chance.

As sentences increase, we definitely have seen those networks erode, thus recidivism is a much bigger concern as a result of these connections eroding. So that I think informs that question to some degree.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Bagnell and Mr. King.

Mr. Lemay.

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

Good afternoon.

My first comments are for Mr. King.

Thank you for being here today. I carefully read your briefs. Mr. King, I was a defence lawyer for 25 years, practising criminal law, and I completely agree with you.

I am tempted to ask you a question. How do you go about reintegrating into society an individual sentenced to 55 years in prison? If he is 25 years old when he enters prison, he will leave prison at the age of 80. When I think of that happening in Canada, my reaction is that this is completely irrational and unreal.

I read your brief carefully, and I paid particular attention to comments about sentencing made by Justice Anthony M. Kennedy at a meeting of the American Bar Association, which you quote. This is an issue of great concern to us in Canada.

Our colleagues opposite tabled this bill, and you will hear them talk about street gangs and repeat offenders who get out of prison. People in the party which is currently in office claim that nobody here ever talks about the victims. I have read all of your briefs and I have just one question for you. If each of you could quickly answer my question, that would most appreciated.

We have evidence beyond a reasonable doubt that long prison terms just don't work. I don't see how we could have more evidence of that.

What can we do or recommend as legislators? How do we go about reducing the crime rate? I have read and reread Mr. Doob's statistics, and I read the brief: there is a drop in the crime rate. There seem to be peaks: the rate goes up, and then suddenly, it goes down again. We know that there will always be crime in society. That has been a reality since the beginning of time. But how can we prevent sharp rises in crime?

The example of street gangs is the most obvious, because that sort of thing is in fashion now. In Quebec, we have criminal biker gangs, and we still have them.

Do you have any idea what we should be doing to try and bring down the crime rate?

I realize I took a lot of time, but I tried to leave you one minute each to answer the question.