Mr. Rathgeber.
Evidence of meeting #27 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was human.
A recording is available from Parliament.
Evidence of meeting #27 for Justice and Human Rights in the 40th Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was human.
A recording is available from Parliament.
June 1st, 2009 / 4:05 p.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
I will be voting against this amendment. The purpose of Bill C-25, the Truth in Sentencing Act, is to set the benchmark for pretrial custody, from what we understand to be a standard two to one in most cases and in exceptional cases three to one--to reduce that standard or, to use my friend Mr. Murphy's terminology, benchmark to one to one.
There is still discretion left to the judiciary to satisfy Mr. Comartin's concern, in that in exceptional circumstances—if the sentencing judge believes the pretrial conditions were exceptionally overcrowded, or for some other extraordinary reason—the judiciary still has the discretion to grant a ratio of 1.5 to one. But the purpose of this bill is to reduce the in-practice standard, which we heard many times was two for one, to one for one.
So with all due respect to Mr. Comartin, I think this amendment, if it were to pass, would completely eviscerate the bill and its purposes. Certainly judges who are not deferential to Parliament's attempt to curtail their discretion would continue to routinely grant the“two for one, which they would legally be able to do if Mr. Comartin's amendment were to carry. So I will be voting against it.
Thank you.
4:10 p.m.
Conservative
The Chair Conservative Ed Fast
Thank you.
Is there anybody else? Seeing nobody, I will call the question on the second amendment, NDP-2.
Yes, Mr. Comartin. Would you like to wrap it up?
4:10 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Yes.
Your predecessor usually would come back to the person moving the motion and give them the opportunity. So I was assuming I didn't have to signal to you that I wanted to do that.
4:10 p.m.
Conservative
4:10 p.m.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
Thank you. I will do so in the future.
I really want to respond to some of the points Mr. Daubney raised.
Certainly, having spent time with the person who helped draft this, I don't have any intention of changing the criteria. The government used the terms, “if the circumstances justify it”, and I put it as “if it is justified by the circumstances”. My intent is the same as the government's.
Flowing from that, and in terms of that intent, my reading of the proposed subsection, as it is, was that it was in fact going to impose on prosecutors a much greater burden to call evidence. Again, I don't see my wording as changing that.
If the amendment presented by the government passes, courts are going to have to take more evidence in order to justify that the circumstances exist to move it up to something close to or at 1.5. I don't think that's going to change.
On the final point about my personalizing this, it's part of the basic principles of sentencing that all criminal sentencing has to be done on a personal basis. So I'm not changing anything in terms of standard sentencing principles in this regard.
4:10 p.m.
Conservative
The Chair Conservative Ed Fast
All right. I'll call the amendment, then.
(Amendment negatived [See Minutes of Proceedings])
Mr. Dosanjh.
4:10 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
I have a question on proposed subsection (3.4). I'm not very familiar with the principles of drafting, but this seems somewhat anachronistic to me.
First, you impose a mandatory obligation on the judge to provide reasons in those circumstances where the judge raises it to one and a half days. And then you allow the judge to ignore it, in a sense. Is that because the judiciary may have complained to the civil service that there might be too many reasons to write? Why is it being done that way? First you impose an obligation, and the government makes such a big thing out of it that they want judges to give reasons, and then you give them a loophole.
I'm not opposed to it. I just want to know what the rationale is.
4:10 p.m.
General Counsel, Criminal Law Policy Section, Department of Justice
Well, as you point out, we have a number of places in the code where reasons are requested. In fact, when Bill C-41 came into force in 1996, it imposed a general obligation on courts to give reasons for sentencing. But what we're trying to do—and we've done it in part XXIII of the code before—is not to make it overly burdensome for the courts. This will allow them to give the reasons, but to convey them by recording them on the court record, as opposed to necessarily providing a sentencing decision in detail.
But may I just take this opportunity to say that what we wanted to do in proposed subsection (3.3) was to make this step-by-step approach public, because one of the findings of research over the years in this area has been.... And it's really what started the public concern about it, I guess, in that the public and the police don't realize the gravity of offences if, as is the case now, they are only looking at the residual sentence, if you will. This was particularly important in CPIC records, so that a police officer....
The reason we wanted to make sure that the amount of credit they're given, and the amount the judge would have given had the person been in the community, is conveyed to police officers, prosecutors, and the general public was to ensure that in terms of future offending there's a more realistic statement of the nature of the offence.
4:15 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
If I understand you correctly, you're saying proposed subsection (3.3) actually alleviates some of the concerns. Then why say “shall” in the reasons?
4:15 p.m.
General Counsel, Criminal Law Policy Section, Department of Justice
This codifies an agreement we reached with the provinces years ago to do this. We just never had a vehicle to implement it until a decision was made to move on this general issue.
4:15 p.m.
Liberal
4:15 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
But if it satisfies the concerns, why make it mandatory for them to give additional reasons? If you take proposed subsections (3.2) and (3.3) and add them together, they make formal reasons, and also the stating of the circumstances in proposed subsection (3.3).
It would have been okay to simply have proposed subsection (3.3), from what you're saying.
4:15 p.m.
General Counsel, Criminal Law Policy Section, Department of Justice
Actually, proposed subsection (3.3) won't deal with the circumstances so much as the arithmetic.
4:15 p.m.
Liberal
4:15 p.m.
General Counsel, Criminal Law Policy Section, Department of Justice
They first have to state what the offence is. Form 21, the warrant of committal, sets this out as well. It's attached to the bill to make it clear to judges how this will work.
So you state the offence, the amount of time a person has spent in pretrial custody, the sentence the judge feels would have been imposed had the person not been in pretrial custody--that's the particular thing we want to get out--and the amount of credit granted. Then there's the actual sentence. It's in the actual sentence that the residual amount of time for subsequent things are determined, like parole, and so on.
4:15 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
From my perspective proposed subsection (3.2) is politics, and proposed subsection (3.3) is the essence of what change you were looking for; therefore, proposed subsection (3.2) doesn't need to be here. But we want judges to give reasons, although you give them a loophole to not give reasons.
4:15 p.m.
General Counsel, Criminal Law Policy Section, Department of Justice
I guess we disagree on that, and I shouldn't comment.
4:15 p.m.
Liberal
Ujjal Dosanjh Liberal Vancouver South, BC
I'm not asking you to answer.
Thank you.
(Clauses 4 to 6 inclusive agreed to)
4:15 p.m.
Some hon. members
Agreed.
4:15 p.m.
Some hon. members
Agreed.