Thank you very much, members of the committee.
I've been asked to go next. It's an honour, again, to appear before you. I'll keep my comments brief.
I'm going to ask you to bear with me for one second about what I believe runs as an undercurrent in this legislation and some of the previous legislation, and that is the role of judicial discretion. In my respectful submission, the most important part of the criminal justice system is not to have a rigid criminal justice system. A rigid criminal justice system is not justice; it's injustice.
As you know, I have been coming here for years, and many of you are tired of seeing me, but there's always been a voice missing here, and that is the voice of the judges. I would like you to consider inviting judges to attend before you in an in camera hearing, perhaps not...I would like to think on this bill, but I understand this bill may have some pretty fast legs.
I don't speak for the judges and I'm not coming with a message from the judges, but in any event, I would respectfully submit to you that you would find perhaps a receptive audience if it was an in camera hearing. Then you would know what the judges' concerns are about public safety. You would know what judges' concerns are about discretion. In a frank and open discussion, you would know judges' concerns about limiting their discretion.
As you know, if you go through Hansard, you're going to find words like “accountability of judges”, and even “reining in judges”--and they can't speak. It would be something that I would ask you to consider. Their voice is not heard. They are restricted in terms of speaking publicly, but you have in camera hearings, and I think, with great respect, that it might assist you.
There is the Canadian Association of Provincial Court Judges. There's the Canadian Council of Chief Judges. There's the superior court judges Canadian Judicial Council representation and also the Canadian Superior Court Judges Association. There are four organizations, and I would respectfully submit that a group of those judges probably would be willing to help you with your tasks as to what their role is. That's what we're all here for. We sound like advocates sometimes, but we're all here volunteering our time to help in terms of the impact as we see it in criminal legislation.
The other voice that I suggest you may consider is that of a young association of crown counsel, the Canadian Association of Crown Counsel. It's a national association. It's young in terms of years, but it represents crown counsel across the country. They might be another voice that you may want to access. I know that they would be interested in perhaps getting involved and assisting you if possible.
I would like to suggest to you that one of the most eloquent comments about judicial discretion, two-for-one, and what judges go through is found in the recent decision of Mr. Justice Rutherford in the case of Khawaja. You know that Khawaja was a terrorist case. If I get a minute, I'm going to take you to the words that Mr. Justice Rutherford used. In Khawaja, he did not allow the two-for-one credit, but he spent time looking at the history of it. His decision is erudite, helpful, and balanced, and it sort of gives you some kind of information, I think, about what judges go through.
He said this:
I don't think that specifying a precise or particular arithmetic formula for giving pre-sentence custody credit in this case is necessary or appropriate. It simply invites the further use and adoption of such formulae, tending to make sentencing appear a mechanical, cookie-cutting process.
Judges have said that. Chief Justice McLachlin said that. It's been said in the Court of Appeal by Mr. Justice Rosenberg.
There are two reasons that there is enhanced credit. One is that you don't get the benefit of rehabilitation and some of the programs, but the other one is the conditions, and we've known this forever. The conditions in remand centres are awful in some cases.
There are people on the council from right across Canada. Let me just share with you what our Yukon representative said. This kind of puts it in perspective. Men in the Yukon receive 1.5 to one and women receive two to one. This is because they are housed together in one jail. Because the majority are men, the men have access to any programming that is offered--very little, the library, the yard access--whereas women are kept separate and usually get one hour out of their dorm in a day. In addition, there is only one halfway house that provides bail beds, and they do not accept women. Therefore, women have less opportunities for bail than men.
So my first point would be that to take away discretion from judges and treat everyone the same would result in an inequality to the female inmates in northern jails. That's one example, and that's what we find right across the country. That's in the Yukon.
In Calgary, our representative said that the Calgary remand centre used to have a small TV in each unit, of what entertainment was provided. These were removed in the mid-1990s, as was the exercise equipment and luxuries such as sufficient staff to allow inmates out of their cells for any significant period. A client who was injured during his arrest is housed in the hospital unit of the remand centre, where he recovers. It is a dorm-type set-up with four beds per cell, and there are, and have been since he has been there, eight inmates per cell, so four of them are sleeping on the floor. In the regular units, doubled bunking is the norm so that one inmate regularly sleeps on the floor in a six-by-eight cell.
This person went on to talk about aboriginal concerns. Phone calls are by collect call, and many of the aboriginal clients' families don't have the capacity on their phone plans to allow collect calls.
You may say, so what? But what we're talking about is different situations right across the country. So when judges take into consideration what they're going to allow for pretrial credit—and sometimes they say no because the onus is on someone to ask for enhanced credit, to show it—from Yukon, to Nunavut, to the Maritimes, to B.C. and right across the country, there are different problems that judges have to address. For us to ignore that, in my respectful submission, and suggest that truth in sentencing is not being served—that's the catchphrase. What we're saying is judges should have the right to look at each particular case and each particular offender. And remember, ladies and gentlemen, with great respect, they are still, whether we like them or not, presumed innocent. Oftentimes, what they are arrested for is not what they end up pleading. They might be pleading to something quite different.
It's my respectful submission that this is a very important and dynamic change that is being made, and I think we have to look at the entire picture.
Let me give you an example. I was thinking about this coming down on the plane. If I represent a police officer and that police officer is denied bail—and there may be all kinds of reasons for it—that police officer is going to be kept in segregation. That police officer's time in custody, prior to his case being heard, is going to be horrible. I would respectfully submit to you that a judge should be able to take into consideration the time that officer has spent in isolation and fear because of his job. That judge should be able to enhance credit. For us to say it mathematically can be only one to one or 1.5 to one makes this rigid.
Ladies and gentlemen, I hope this bill is not just going to be quickly passed, because it's so very important to the criminal justice system.
And the last thing, which I will quickly say to you--and my friend has already said this--is that the people who are going to lose the enhanced credit are the ones who can't get bail or get out, get on the bus, commit the offence--involving drugs or whatever--and be back in. Those are the ones who are going to lose the credit.
Thank you very much, Mr. Chair. I know I've taken too long.