Justice Committee on Dec. 6th, 2006

[The Chair, Conservative, Art Hanger]

Mr. King.

[Ryan King]

You make the distinction that there is a time to talk about the big issues but this is a specific problem we need to address. With all due respect, that's the thinking that has governed the United States policy for the past thirty years and that has gotten us into problems.

If we're not going to address these bigger issues now, then when are we going to? We know for a fact that these little efforts to address things here and there simply don't work, and have substantially detrimental consequences.

So if you concede that there are larger root causes that lead to gun violence, drug transactions, sexual offending, etc., then when is the right time to address those? That's the question I would put to you.

[Myron Thompson, Conservative, Wild Rose, AB]

I've tried to illustrate how over thirteen years nothing happened, even when we tried to address things like child pornography. And I told you why nothing happens. It's frustrating.

[The Chair, Conservative, Art Hanger]

I've sat back and listened to the arguments today, and perhaps I can make a point here.

There's always the defence of more or less the status quo, but there is a problem in that offenders really aren't necessarily held accountable for all they do. One thing that has come up repeatedly is that prisons are not doing the job they're supposed to be doing. If prisons are not doing the job they're supposed to be doing, then maybe we have a prison problem and we should be doing something differently in the prisons.

Secondly, this country does not have any kind of drug strategy to deal with the drug problems that are ever before us, and that, as Mr. Thompson mentioned, certainly play a big part in the crimes committed. The drug issues are destroying so many lives now, not only of the people involved in committing these crimes but also of the individuals who have crimes committed against them. This is a growing problem, and ultimately we're not fully addressing that problem either.

So what do we do? Nobody talks about.... Well, they do talk about prison; many witnesses have told us not to send anybody to prison because it's a school for learning more crime. Okay, then, maybe we should be concentrating in those areas.

That's just another point.

Mr. Lee, the floor is yours.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

By the way, I'm not the Mr. Lee referred to earlier in the testimony.

Mr. Moore referred to the recent spike in firearm homicides across the country. Those are accurate statistics for 2004 and 2005. We've been through this little exercise before. I do want to let the record show that in Toronto, at least, the firearm homicides for 2006, up to the month of November, had dropped about 44%--a huge drop. Hopefully that shows the previous two years to be a spike, but time will tell.

I want to induce a response, if it were there, perhaps from Mr. King. With regard to the reference to the Kessler-Levitt study, just because this guy Levitt was on the front of some magazine and wrote a book called Freakonomics and was recognized as a very valuable contributor doesn't mean we have additional evidence on the issue of mandatory minimums in sentencing. I was just going to ask...and you may during your answers want to say yes, there is more evidence from Professor Levitt or Kessler or whatever. If there isn't any other evidence that's relevant, that's okay; if there is, we should try to take a look at it.

I have two questions, one to Professor Doob and one to Mr. King. With regard to sentencing rates, we've seen the crime increase from 1960 to 1992, and then it starts going down. Is there any evidence that fluctuations in sentencing rates were a factor in the increasing crime rate? We've heard about a lot of other factors of crime, but were sentencing rates ever seen or studied to be a factor in the increasing crime rates for 1960 to 1992?

Secondly, in your work in sentencing, are there any real benefits seen in legislation like this? Does increased incarceration, in a targeted way, as Mr. Moore refers to it, provide any benefits at all? For example, will it enhance appropriate incapacitation for the really bad guys? Will an extended intervention in an offender's life better assure access to programming that would allow the offender to get things turned around--go straight, as they sometimes say?

Thirdly, would increased incapacitation allow for the extraction of an individual from a crime context? Again, that's a neighbourhood where that's the way you get things done. You extract the individual, you get him convicted, and you put him away for extra time in the hope that programming might be the intervention needed to break the cycle.

I don't believe those things do happen, but if there's any evidence that you've come across in your studies and your extensive work, I would like you to please help us out.

[The Chair, Conservative, Art Hanger]

I'm going to ask the panel if they would respond as quickly as possible to each of Mr. Lee's points.

Mr. King, would you like to start?

[Ryan King]

I will take a couple of them. The ones that I think are more appropriate to Professor Doob, I might pass on.

On the Levitt question, I'm actually equally as staunch a critic of Steven Levitt as is Professor Doob. And no, I don't believe any other work exists. In fact, I believe there's really a common thread of disingenuousness through his work, and it's been exposed frequently, by Mr. Doob today, as well as by some others.

On the incapacitation issue--and Professor Doob will probably expand on this--incapacitation has an impact if you take somebody out, but we're talking about already having stiff sentences that exist. That person is already being incapacitated. So the question is, is this a mandatory minimum in some sort of way? Is this going to result in somebody being incapacitated for a longer period of time? In most cases, if you have stiff sentences that exist, that's not going to be the case. In particular, as far as drug crimes are concerned, we've seen that incapacitation really has no effect whatsoever, whether it's for a short period of time or not.

The sentencing issue leading to an increase in crime from 1960 to 1992.... I haven't seen any research leading to that, but I have seen a new strain of research that's emerged since 2000, that's looking at the formation of social control, at informal means of control in social capital within low-income communities where there's high-density incarceration. It has actually been demonstrated in a number of American cities, in a number of different contexts, that there's a tipping point. When incarceration rates reach a certain point within some of these communities--and there are neighbourhoods in American cities where up to one-fifth of the young males in that neighbourhood are incarcerated or in the criminal justice system on any given day--there's a tipping point, and we actually begin to see crime rates increase. It's speculation, and that is as a result of an erosion, really. In any sort of neighbourhood, the constant disruption of people moving in and out of the criminal justice system actually has what would be called statistically a positive effect leading to an increase, which is actually a negative effect.

[The Chair, Conservative, Art Hanger]

Mr. Doob.

[Dr. Anthony Doob]

First of all, on the issue of the Toronto gun crime, for example, which seemed to have galvanized everybody a year ago, again, I don't want to feel like anybody should relax about the seriousness of crime because gun crime might have gone down. My point is that we're not going to fix that. Whether it fixes itself or it is fixed because of some other reason, we're not going to fix it with sentencing. So if Toronto gun crime goes down, we still have a problem with guns and we still have people being killed. We should take that seriously. Again, whether crime is going up or down, we do all hope it obviously is decreasing.

I'll talk very briefly about the issue of incapacitation. The difficulty is, when you're talking about an incapacitation strategy, what you're really saying is something in addition to what is deserved by the crime. These are all serious crimes. These are all going to get very heavy sentences. None of us sitting here is suggesting, ever, that what we're talking about is taking these very serious crimes...and suggesting that they shouldn't lead to imprisonment. Obviously, what we're talking about is that the penalty should fit the crime, and I think there's a general consensus of this.

The final point I want to make is that the criminal justice system is not good at treating people. What we may be able to do with a sensible correctional system is to do the best we possibly can. If we're serious, this is a very expensive, individualistic endeavour of taking somebody who is committing serious kinds of crimes, putting them in prison, and providing them with programs. Again, if you look at it, if we're really interested in providing programs to people, this is probably not the way to do it. As I've said, we have to remember the ones we're talking about are going to be in prison anyway.

The problem that Mr. King has already mentioned is with drugs. The simple imprisonment policy, for example.... What you simply get in these circumstances, particularly with street-level trading of drugs, it seems, is simple replacement. Somebody else comes in and sells the drugs, so we haven't really accomplished anything; at worst, what we may have done is recruit another person into the business. So I think the feeling around all of us is that we're looking for a good solution with our limited resources. Certainly there are some studies published, in addition to Levitt's, that would suggest that harsher sentences will deter, but those are the exceptions. The exceptions tend to be, in effect, ones that are cherry-picked from studies, or cherry-picked examples that would be part of that last study I talked about in my oral remarks today.

So I think we have to understand that the evidence is fairly clear in one direction.

[The Chair, Conservative, Art Hanger]

Mr. Kulik.

[Irving Kulik]

I would certainly support what Professor Doob just said. I have a couple of additional comments.

I don't think Mr. King referred to it, but in American prisons there are major issues with gang membership. In a number of institutions, many institutions, the gangs are running the institution, particularly in the west in the States, in the midwest. We've started seeing in the last number of years in Canada the same kinds of issues starting to grow, though not at the same level.

I'm not suggesting they shouldn't be in prison, but simply imprisoning them, removing them from the community, doesn't solve the gang issue. In fact, I think there is some evidence that would show that some of the gangs are actually born and go back into the community after. I don't know if we're going to solve it in a simple fashion. I don't think one particular mandatory sentence is going to change anything.

The reality, for me, at least, is that being a gang member, the individual, who may not have any other reason...it gives them stature, and it gives them stature in that particular group, which is basically and usually a violent group. We need to somehow focus on replacing that kind of reward situation with a more lawful one, and that is not easy. It's very difficult. Obviously, our friends in the States have been working on this, and Canada has been working on this. It's related to root causes and all kinds of factors. We don't have a silver bullet, to use the old expression, on how to solve these kinds of problems. We have to keep working on it.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Kulik.

Mr. Petit.

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

I want to thank you for staying so long. We were supposed to conclude the meeting at 5:30 p.m. I have a question for you with respect to judicial discretion — in other words, judicial power. A great many witnesses have come before the Committee to say that we are attacking the power or discretion of judges.

But I would just like to make a few comments by way of introduction. Under the American system, judges are elected, with the exception of federal judges. If I had the power to elect judges, perhaps we would not be here trying to resolve this problem. In Canada, all our municipal, provincial and federal judges are appointed by politicians. When they are appointed, they are given the right to take action under the Criminal Code. If a judge is given the right to take action under the Criminal Code, it is Parliament setting the parameters within which he has to work. For example, we require this or that type of evidence. The principle of evidence being proven beyond a reasonable doubt is a parameter. We tell the Crown prosecutor that he wants to convict someone, he will have to prove beyond a reasonable doubt that the individual in question committed the crime of which he or she is accused. So, we set parameters.

We also give judges certain parameters. We tell them that if they believe, beyond a reasonable doubt, that the accused is guilty, they will have to do certain things. But because judges are appointed for life, they can do whatever they like. The only avenue of appeal is the Appeal Court. I can assure you that in the United States, a judge who decided to do whatever he liked would be removed from his position within two years. I'm not talking about federal judges. There is a big difference between the two systems. That changes the dynamic. In Canada, we are different.

And there is a second point I want to raise with respect to judicial discretion. Mr. Moriah, I related somewhat to your comments. We live in Canada, with a population of 32 million. I am from the province of Quebec. I sometimes feel as though I am a victim of discrimination because there are proportionally more Francophones in prison in Quebec. I see that as a problem. So, in that regard, I am on the same wavelength with you. The fact is that there are more Francophones in prison in Quebec.

People often talk about the different groups there are here in Canada. Mr. Bagnell often talks about the Aboriginal peoples. There are Aboriginal groups in Northern Quebec; there are 200 of them. And when someone commits a crime, we have to get that person out of there. These groups are overrepresented in places where we send people who commit crimes. Because there is no road, we have to go and get that person in an airplane, in order to bring him back to Montreal to put him in prison. It's a bit of a problem. We live in a rather strange country.

I would be interested in hearing your comments, because you are a lawyer. Do you disagree with the idea of limiting the discretionary power of judges? That is our role. In reality, it all comes down to that. Bill C-10 applies to extremely serious crimes committed in serious circumstances. As Mr. Kulik was saying earlier, most of the people these legislative provisions will apply to were initially convicted in youth court, or at the provincial level, and then entered the federal system.

You are a lawyer practising in Toronto, Ontario, and I would like you to tell me whether you disagree with the idea that we can limit judges' discretionary power. That is an extensive power. It may be the most significant power a judge has when handing down a sentence.

[The Chair, Conservative, Art Hanger]

Mr. Moriah.

[Royland Moriah]

It's a broad question in some senses, because when you're talking about discretion under Bill C-10, there are a couple of things. First is the general issue of whether or not people believe judges are using appropriate discretion in dealing with sentencing issues. That's one of the things underlying some of the discussion we're having here about Bill C-10, and certainly about the push to implement mandatory minimums.

What we have to think about first when we're talking about judges' discretion is that they are experts to some extent in the field they're working in. They were appointed through a very good process in Canada in terms of the way we decide who our judges are going to be. So even though they are appointed, it's a very open and transparent process that is not as political as a politician choosing a particular person.

In terms of the actual use of that discretion, we have to realize judges' discretion covers a number of areas, as you've said, and particularly in sentencing you have to realize we're talking about mandatory minimums. But as some of my colleagues have said several times today, judges can always implement a range of sentences. The issue is whether or not we believe they're doing so appropriately and whether mandatory minimums will be the panacea to make sure they do so. From the information we have available, that doesn't happen, because what happens is the discretion judges have in terms of charging and determining sentences merely gets transferred to another player within the judicial system, whether it be the police or the prosecutors. What we have to think about first is that judges have the ability to give at least that mandatory minimum sentence, but they also have the ability to give a larger sentence.

What we have to be concerned about particularly for the African Canadian community, recognizing we have racism within our criminal justice system, is that any exercise of discretion should be done in an open and transparent manner. That's particularly important in sentencing because you have the ability to review sentences, to appeal them, to determine whether or not they are appropriate in any given circumstance. Unfortunately, when you have mandatory minimums that shift the judicial discretion to police and prosecutors, that process is no longer available, and that's particularly problematic for communities such as African Canadians, such as aboriginal communities that have disproportionately borne the brunt of a discriminatory use of discretion within the criminal justice system.

So, yes, we want to make sure judges use their discretion appropriately, but we have to realize they have processes available to do that. They have minimum and maximum sentences they can impose. More importantly, it's important that whoever is exercising that discretion is doing so in an open and transparent way that can reviewed.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moriah.

Don't politicians choose our judges here in Canada?

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

The appointment is made by the Governor in Council, which is essentially the Prime Minister and the politicians--

[The Chair, Conservative, Art Hanger]

Through a selection process.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

--but the process is more multi-faceted. There's a consultative process in each province.

[The Chair, Conservative, Art Hanger]

Okay. So can a judge possibly have a philosophical point of view? I don't know if Mr. Moriah can answer this question.

[Royland Moriah]

It comes back to the issue of the difference between impartiality and neutrality. It's not saying judges are going to be neutral, but judges have to be impartial. I'm sure judges, just like all of us, come to their job with a particular point of view.

Judges are supposed to be appointed, and I know judges take their job very seriously in terms of making sure they are impartial in making their decisions, and that's what's important.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Moriah.

Thank you, witnesses. I really appreciate your extending your time here with the committee. This has been a very good discussion. It's certainly invoked a lot of response from the witnesses and it has given us some things to think about.

Mr. King, thank you for coming from the U.S. Your testimony was interesting. I can't say I necessarily agree with it, but I don't think anybody here agrees with everything that's been said.

It's much appreciated, gentlemen, madam. Thank you.

The meeting is adjourned.