Justice Committee on Dec. 6th, 2006

[Réal Ménard, Bloc, Hochelaga, QC]

I'm sorry to have missed your presentations. But, today in the House of Commons, there was a debate on re-opening the same sex marriage issue, and I had to make a speech.

I am very pleased to meet Mr. Doob. I have been hearing about you for years now, and I am a strong admirer of what you have produced. I read the study that the Clerk forwarded to us, in which you identify everything that has been written about the deterrence factor associated with minimum mandatory sentences, and you suggest that in that respect, there is absolutely no evidence that they do. But that is not exactly what I would like to discuss with you today.

I believe it has been proven that minimum mandatory sentences do not serve the objectives for which people claim that they are needed and that there is no connection between minimum mandatory sentences and deterrence. I also believe that the government is motivated by ideology alone and that there is no scientific rigour in Bill C-10. Finally, the best thing that could happen would be for Bill C-10 to be defeated by the Committee, right here.

In addition, I would like to know how we can tackle the problem of violence perpetrated by certain street gangs and to what extent we know what the effect of legislation passed to tackle gangsterism has been effective. As you may recall, we passed sections 466, 467 and 468 of the Criminal Code, which now refers to gangsterism.

Does any one of you have suggestions to make with respect to the whole question of guns and gangsterism, smuggling and street gangs? Are you able to share any information with us that could help us refocus the debate on more effective, more inspired actions?

[Dr. Anthony Doob]

What I would like to see is a debate about how we should use limited resources to deal with crime. The problem with firearms is not a problem we're having only in Canada. It's a problem that's occurring in other places. What we really need to do about firearms—and obviously I'm not saying anything very important—is to stop people from having them and stop people from carrying them.

What we're really talking about, even if we move to a deterrence model, is looking for ways to apprehend people who have them or keep people from having them. That has to do with catching people, and catching people is unfortunately a lot harder than simply changing laws and fiddling with penalties.

I would say to move away from the penalty structure, because we have plenty of harsh laws that deal with serious crimes having to do with firearms. After all, if it's a prohibited or restricted weapon, what we're talking about at most on a first offence is moving it from four years to five years. I don't think we know many people who would commit an offence for four years but not for five years. It's a silly argument.

What we have to do is think of it in terms of the suppression of firearms, but let's also look at what it is that makes people carry firearms. One of the difficulties—and there is certainly some evidence of this—is that people carry weapons in part because they are frightened of other people carrying weapons. What we have to do is address our communities and address these things. These are much harder. It is a much harder task to do. It's not an area that I would consider to be part of my expertise, but in reading the gang literature from places like Los Angeles, which has very serious gang problems, when the experts there are worried about the narrow approaches we use, all I can say is that their narrow approaches look very much like the narrow approaches we're using.

We have to approach these in a broader fashion. We're not going to solve the problem of gun crime by passing a simple law like Bill C-10. I would say that if this committee wanted to look into this issue about how best to use resources, that would be a very good program for the committee to take on.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Before you begin, Mr. Comartin, we usually conclude at the half-hour. We're five minutes from there now. Is it the wish of the committee to extend it a few minutes, say, fifteen or maybe twenty minutes?

Secondly, I would ask if the witnesses would be willing to stay for a few extra minutes.

[Voices]

Agreed.

[The Chair, Conservative, Art Hanger]

Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

We are debating Senator Lapointe's bill on video lottery terminals, and we have to go and make a speech. We would agree to the Committee extending the meeting if a promise is made that there will be no motions dealt with. We cannot stay, but we have no objection to extending the meeting if the idea is simply to allow colleagues to ask questions. But we want to be given assurances that there will be no motions, because we will not be here to vote. If it's just to allow colleagues to ask questions, we can agree to that.

[The Chair, Conservative, Art Hanger]

No, Mr. Ménard. Yours is the only motion, and we've already addressed it without your presence here. Thank you.

Mr. Comartin.

[An hon. member]

[Inaudible—Editor]

[Réal Ménard, Bloc, Hochelaga, QC]

You're supposed to be happy with my motion. It's a Christmas gift.

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

Is it my turn now, Mr. Chair?

[The Chair, Conservative, Art Hanger]

Order, please.

Mr. Comartin, please.

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

Thank you, Mr. Chair.

My thanks to all the witnesses for being here. It has been very informative.

Mr. Doob and Mr. Moriah, you may want to comment about this as well. Both in your paper and your verbal comments today you indicated that you had some thoughts on how the principle of proportionality could be strengthened. I wonder if you would just share those thoughts with us.

I have a second one for anyone, perhaps particularly for you, Mr. King.

I haven't seen any specific studies on this, but I understand that with regard to taking away the discretion from the judiciary, some of the states in the United States have taken the discretion away from the prosecutors by forbidding plea bargaining in certain cases. Other techniques have just mandated that the mandatory minimums cannot be avoided by some of the points you have made. I wonder if you could comment on that issue, and whether anybody else from the Canadian side has seen any signs of that. We've had it to some degree in zero tolerance in domestic violence cases and the way we treat some of the impaired driving charges. We've had some of that just on the surface of prosecutorial discretion. But specifically on mandatory minimums, could you comment?

Dr. Doob, would you start?

[Dr. Anthony Doob]

On the issue of proportionality, the difficulty that was written into the Criminal Code in 1996 is the statement about proportionality, which I am obviously completely comfortable with. There is also a statement about the goals of sentencing that goes immediately before it. The difficulty is that accomplishing the various goals of sentencing may well conflict with proportionality. The concern I have is that if we do want proportionality to be the dominant determinant of the severity of the sentence, then we should say that. What we should say perhaps is that those various purposes that are listed there—some of which I don't think can be accomplished at sentencing—should be held within, in a sense, the range that is set by proportionality.

Just as an example—and I'll use this as an example while knowing some of my colleagues sitting as witnesses may disagree with it—we say that one of the goals the judge may choose in determining the sentence should be the rehabilitation of the offender. There's a problem with that. What of the rehabilitation of the offender if the most appropriate rehabilitative sentence is not proportionate to the harm done? The question, then, is how those things become resolved with one another. The Criminal Code of Canada is silent on that issue. It seems to me that the Criminal Code should not be silent on that issue.

I don't want necessarily to go back twenty years to the Canadian Sentencing Commission. What the Canadian Sentencing Commission said was that the dominant principle should be proportionality and that in choosing the actual sanctions, for example, one might choose them to accomplish other kinds of goals. In the end, though, we would look at the sentence and say it's proportionate.

Most of the problem the public has with sentencing, rightly or wrongly—and in many cases wrongly—is that the sentence doesn't look proportionate. That's a completely separate issue from stopping crime through general deterrence. So I would say we should look at ways in which we can ensure that sentences are proportionate to the harm done, so that when a sentence deviates from that, we can easily say it is an inappropriate sentence.

[The Chair, Conservative, Art Hanger]

We'll take one more response, quickly.

Mr. King.

[Ryan King]

Very quickly, in August 2003, then Attorney General John Ashcroft issued a memorandum to federal prosecutors, essentially instructing them not to plead cases down. The official position at the federal level of the Department of Justice is that there is not supposed to be any of this kind of bargaining down—charge bargaining, basically—for the purposes of getting a plea. In reality, in actual operation, that oversight is very difficult to maintain, but it shows a disconnect and it shows how it becomes a kind of high-stakes poker game in terms of what somebody is going to get. It's particularly disturbing in light of the fact that, in the last twenty years, developments in court sentencing in the United States were supposed to have been following a rational approach, with predictability being built in as much as possible. That's what sentencing guidelines and mandatory minimums were supposed to be bringing about. In reality, though, we see that this is how it functions.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Comartin.

Mr. Thompson.

[Myron Thompson, Conservative, Wild Rose, AB]

Thank you all for being here.

Welcome, Mr. King, from my home country before I emigrated to Canada in the 1960s. Of course, by looking at you I can see I probably spent my 32 years down there when you were but a twinkle in your mom and pop's eyes. But I'd like to welcome you.

I was kind of pleased to see Mr. Doob with his charts. I think it's always interesting to go back to the 1960s. I think it's also good to go back to the 1920s, you know, this steady incline and then sort of leveling and peaking and all that sort of stuff. I find it really interesting.

Most of the witnesses that we have here I think and what we as politicians are trying to do is answer the pleas of the public. Too many people are dying because of guns and gangs. What are you guys going to do about it? We want these people off the street.

If you ask the public what we should do with these people who are shooting people in Toronto, probably almost 100% will say “Put them in jail.” “Are you willing to pay for more jails? Are you willing to pay the extra costs? Absolutely. I want my kids safe.”

Now, we're talking about a very focused thing in this Bill C-10. We're not talking about a broad range of how we should deal with this. The police like what we're doing. The victims are supporting what Bill C-10 is doing. And I think the public at large is appreciating what we are doing.

People like yourselves come in, and I understand you want to get to the root cause as well. I've talked about the root causes a hundred times. You don't really want to get to the root causes with these issues, but if you did, then you would do something about alcohol. It's a major cause. They tell me that 80% of the people wouldn't be in prison today if it weren't for booze and drugs. I don't know if any of you can, but I can't think of one root cause that justifies anybody picking up a gun and shooting somebody. I cannot think of a root cause that would justify that.

Through that chart, Mr. Doob, that you've shown, we've already made a lot of decisions that help make that climb. I'm talking about the days in the States when they had 21 years for drinking. It went down to 18 for awhile; all hell broke loose in the schools, and now I think they're back to 21 all across the States. They're trying to do something about root causes. I appreciate that.

I'm trying to point out.... In Warkworth Penitentiary out here, it's full of sexual offenders. The last time I was there--I believe you were here that time with me, Mr. Chairman--there were 745 sexual offenders in this place. I visited with lots of the inmates. Of those who sexually attacked the children, almost to a man, they wouldn't be there had they not got hooked on child pornography. They started overusing it, and they got to the point where they had to act out their fantasies, driven by child pornography.

So you come here and you try to fight child pornography, but the government for the last thirteen years has brought things forward and the courts have decided, “Well, that's not quite good because it might infringe on our freedom of expression. Well, you can't do it that way because there might be some artistic merit. Well, there might be some public good. Well, it might serve a useful purpose.”

I think going to the root causes is a futile exercise in this country because we're forever worried about somebody's rights being infringed on, so we never get the job done. For thirteen years now I've asked the government of the past, and I'm asking this government today, to come up with something and get to the root cause of those kinds of offences. Stamp out child pornography. It's not getting anywhere because somewhere some court will decide, “Wait a minute, that doesn't meet the charter test, or that isn't exactly the right thing to do because you'll infringe on....”

My whole message to you folks is that I appreciate you being here, but I don't think you're really focusing enough on the issue of Bill C-10. The public outcry is, “Do something about gangs and guns”, and it's very focused. I think it certainly is not the answer to all the crime that is happening. It's maybe not going to reduce crime, but those who are in jail are not going to do it again.

It's an effort by the politicians to try to accomplish something that (a) the public wants, because we're the servants of the public, and (b) the victims want, because I happen to have a lot more concern about victims than I do about criminals, and (c) is the right thing to do.

If it can be done better, we've got to work at that as time progresses, but we need an immediate answer to guns and gangs and crime, and I think it has to be found through Bill C-10. We can talk about all the issues that we've talked about, but they will not stop if we don't take some serious, concrete action.

[The Chair, Conservative, Art Hanger]

Do you have a question, Mr. Thompson?

[Myron Thompson, Conservative, Wild Rose, AB]

What is your suggestion? Am I out of line by suggesting to you folks that you're not addressing Bill C-10 and that you're addressing the bigger picture? That's fine. I think there's a time to do that, but specifically, the public wants something done in Toronto, Montreal, and other cities. Get the gangs and guns off the streets and help protect our society.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson. I'll cut you off here.

I'm going to allow the witnesses to make some statements. I'm going to ask each witness to respond, but could you make your answers short? I do have a couple more people who want to put questions here.

Would you mind starting, Mr. Kulik?

[Irving Kulik]

Okay. I'll keep it very brief, Mr. Chairman.

I sense the member's frustration. I think we can identify with that frustration. We can certainly understand it.

I don't believe that I certainly or any of our colleagues here were trying to justify anybody's criminality based on root causes.

There are two points to be made. Looking at root causes is important to ensure that there is not continued growth in criminality and there aren't new witnesses tomorrow. That's what that is about. As for those who are in penitentiary or in prison today, hopefully they'll do something or something will be done for them to improve their lives and to make it safer for them to one day return to a community.

The other aspect is understanding the situation in Toronto or any other major community in Canada. The laws exist today to put into prison for life somebody who shoots somebody else. That exists. So because you make a particular offence mandatory at a point in time, that by itself--although it sounds like an easy solution--is not going to be the solution to all the problems we have.

[The Chair, Conservative, Art Hanger]

Mr. Doob.

[Dr. Anthony Doob]

Well, I think the issue is whether you want to do something that's effective or whether you want to do something that might, for a moment, look good. It seems to me that the evidence is overwhelming that what you're going to be doing if you pass this bill is telling the public that something effective is being done when the evidence is clear that we're working in the other direction.

Why does the public want mandatory minimums or tougher laws and so on? They want them because they've been told repeatedly by this Parliament and others that mandatory minimums are the way to solve the problem of crime. This is not a party issue. All three national parties have endorsed mandatory minimums at one point or another. I'm against all three of those parties for that.

I think what one has to do is to ask what it is we can do that will actually do something. So again, to repeat what was just said, getting the gangs and the guns off the street has nothing to do with sentencing. We all agree that's good. We all agree that the sentences that are available in the Criminal Code allow people to be put away for serious crimes for a long period of time.

What you're asking is whether the promise that is explicit in Bill C-10 is a legitimate promise. I am telling you it is not.

[The Chair, Conservative, Art Hanger]

Thank you.

Mr. Moriah.

[Royland Moriah]

I don't know that I'll dwell on it anymore, but I think I'm going to reiterate what my colleagues have said.

Certainly, and especially in the African Canadian community, we want people who are using guns to be off the street. I will make that very clear to you. We share in our community the same frustration, because it is mostly members of our community who are being killed.

However, in addressing how we're going to do that, we think it's important to look at what effective strategies we have and whether the strategy we've chosen is going to work. And in terms of what the public has asked for, it is not necessarily Bill C-10. What they have asked for is safety from guns and gangs and violence. That's why we're here today to tell you that mandatory minimums are not an adequate response to guns and gangs and violence.