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.
Bloc
Réal Ménard Bloc Hochelaga, QC
Can the parliamentary secretary tell us whether the government supports this amendment?
Conservative
Rob Moore Conservative Fundy Royal, NB
Thanks for the question.
No, we don't. We brought in this initiative so people would know that someone would serve each day they were sentenced. That's why it's one to one. We've explained the benefits of that. That's why the bill is supported by many groups as it is.
As was pointed out, there is provision, if the judge feels it's warranted, to increase that amount. But the standard default, barring some circumstance that would warrant it, would now be one day for each day sentenced. We brought it in for that certainty--so people would know the type of sentences individuals were going to get, and that they would serve the sentences they got.
Mr. Norlock pointed out a couple of fairly egregious cases to me just a few minutes ago, where someone served very little or no time at all after being sentenced because of the two-for-one or more credits. So that's what we're trying to move away from.
Conservative
Rick Norlock Conservative Northumberland—Quinte West, ON
The good thing about our system is that the courts and the judges try to act dispassionately when they take into account serious things that have happened. But when we listen to the defence, the bar association, etc., and look for more statistics that are very difficult to obtain because of the way the court system is, I think it's necessary--even though they're anecdotal--to bring a couple of specific references so we can get our heads around the issue.
In this case the accused's surname was Nakpamgi. He was convicted of child sex trafficking. He made $360,000 by using and abusing a girl. He bought himself a nice home and a car. This is the important part to remember here: he was sentenced by Justice Atwood in Brampton to three years on the count, but when his pretrial custody factor is taken into consideration, he will spend less time in jail for this conviction than he spent exploiting this vulnerable girl.
In another case of human trafficking, when the two-for-one credit was taken into account the person served only a single week in prison after his conviction.
These are some of the reasons why people in our constituencies want us to bring in legislation like this. It isn't that judges aren't doing what they're supposed to; they're doing what the law says they're permitted to do in jurisprudence. But based on these issues and what our constituents are telling us, we want to give everyone some direction, because we're responsive to the will of our constituents.
Conservative
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
This is on both what we heard from Mr. Daubney but specifically from Mr. Norlock.
We are supposed to be here from a dispassionate point of view. But I have to say that if you want to take that into account, think about what's going to happen as the judges look at this legislation, see their discretion curtailed, and still see all the problems of people being in pretrial custody in situations that are inhumane. Think about the number of cases we're going to have in which people are not going to be sentenced to any time at all once the conviction is entered and the sentence is given--because the court is, and the judges are, in fact, I believe, going to look at this. They understand both the provincial law and the federal law about remission and eligibility for parole. They understand the comparative between somebody who has been remanded into custody and somebody who has been out on bail. And they're going to take that into account. They're going to, in effect, work their way around this legislation. But then what is going to happen is that I'm going to have constituents, and Mr. Norlock is going to have constituents, and all of you are going to have constituents, who are going to say, “How could this possibly happen? How could this person, committing that offence, not get any jail time at all?”
That's how they're going to see it. That's going to be the consequence. I think that's the way our judges will work it out. Both provincial court judges and superior court judges will work it out that way. It does not leave us, as policy-makers, as lawmakers, or as representatives of our people, in any better position to answer the question of how that could have happened.
Conservative
Conservative
The Chair Conservative Ed Fast
I'm going to give you enough time so we can do this properly. At the same time, we do want to move ahead with this.
Go ahead, Monsieur Lemay.
Bloc
Marc Lemay Bloc Abitibi—Témiscamingue, QC
As a defence lawyer, I am a bit worried by what Mr. Comartin just said, and I would like some reassurance from Mr. Daubney.
Mr. Norlock just gave us a theoretical example of a case. Pursuant to clause 3 of the bill, which replaces subsection 719(3), the judge could decide that an individual should receive a sentence of two years' imprisonment for the crime committed, but since that person is in pre-sentencing custody, the judge just sends him on his way. That happened in a mob boss case. I will not name names, but the person was in custody, and the judge said that if it were strictly up to him, he would give the individual a three-year sentence, but since the person had been in pre-sentencing custody for three years, the judge sent him on his way. It happens.
General Counsel, Criminal Law Policy Section, Department of Justice
Yes, it happens.
Conservative
The Chair Conservative Ed Fast
All right. Is there any further discussion?
I will call the question on amendment NDP-1.
(Amendment negatived [See Minutes of Proceedings])
Conservative
The Chair Conservative Ed Fast
Mr. Comartin, you also have a second amendment. Would you like to introduce that?
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
This one, in addition to increasing with the current amendment, within the judge's discretion, up to 1.5 to one, increases it to two to one. It also removes the provision that is contained on page 2 of the bill. It was “detained in custody under subsection 524(4) or (8)”. It's removing that provision as well.
We again heard evidence, on the final day that we had testimony, of the fairly substantial grossly unfair results if that provision were left in. In situations where a person was in custody, pretrial, was charged again, but then got acquitted of the first offence, it was going to have a very negative impact. It just wasn't logical. Again, it's the kind of thing that I believe should be in the discretion of the judiciary as to whether they're going to take into account the subsequent charge. That will vary, depending on whether the person is convicted of the first one, how relevant it is, all sorts of considerations. It's not the kind of thing that we as legislators can do with any kind of certainty that we will have justice coming out of it. That's really one of the areas we have to leave to judicial discretion. That's why my amendment removes that particular provision.
The second part goes back to the same arguments I made on amendment NDP-1, the consequences of not allowing this discretion. Again, I recognize that I am putting limits on it so we'll no longer see the 2.5- or three-to-one ratios being granted. We're closing the door on that by this amendment if it were to pass, but it's still necessary for the courts to have that extra discretion. I put in here, as does not exist in the code at this point and didn't exist in the amendment that the government brought forward, that the negative impact on the person as a result of the detention in custody is one of the considerations, and any other considerations that are relevant—again giving the judge the discretion to look at issues.
Because of that, I would expect that some of the jurisprudence we already have would be looked at again, but we may see clearer jurisprudence evolve over the next number of years if this were to go through. Courts, appeal courts in particular, would be setting out clearer criteria that the trial judges should be taking into account when they're making a determination as to whether these circumstances justify extending the two to one to the particular accused.
Conservative
The Chair Conservative Ed Fast
Thank you.
On the speaking roster, we have Mr. Murphy and then Mr. Rathgeber.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
Maybe how this thing got off the rails is that subsection 719(3) as it was didn't have any reasons required. Other parts of the code do. Justices must give reasons for doing certain things.
This bill, in proposed subsection 719(3.2), says, “The court shall give reasons for any credit granted”, and I think Mr. Comartin is right. In time, whatever happens, there'll be jurisprudence set out as to why judges are granting whatever credit they are.
What concerns me is the word “benchmark”. I think we know now that the benchmark might be one. If we go with Mr. Comartin's amendment, it can be no more than two. I'm struck by what Mr. Daubney said as well. I doubt that the judgeometer would automatically go up to two. I think they'll reserve that with their discretion and calibrate what's going on in the institutions, the impact on the individual, and all that sort of thing, somewhere between one and two.
My concern in voting against Mr. Comartin's first amendment is, frankly, that the starting point becomes 1.5 days, if you legislate it. So I'm a little more amenable to the two days, but I'll ask Mr.Comartin if he thinks he has covered everything that's in proposed subclause 719(3.1). That talks about 1.5 days relating to individuals detained, stated under subsection 515(9.1), or detained in custody under subsections 524(4) or 524(8). Is this covered in your proposed subsection 719(3.1)?
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
No, I have removed the latter part of the existing government amendment.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Then refresh my memory about what subsections 524(4) and (8) and subsection 515(9.1) have to do with your new amendment.
NDP
Joe Comartin NDP Windsor—Tecumseh, ON
I'm simply removing them, because we heard the impact they were going to have in situations in which you have two consecutive charges some distance apart, if the particular person were acquitted of the first offence.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Mr. Daubney, do you think that with this mix...? We now know that it is probably going to be one, as the starting point, because Mr. Comartin's first amendment was defeated. That becomes the starting point. Do you see this amendment of Mr. Comartin's as being the new benchmark, or do you see it as somewhat of a reserve for judges to use in egregious cases of bad conditions and all that sort of thing?
General Counsel, Criminal Law Policy Section, Department of Justice
It creates a window, or I should really say a door—quite an open, wide door—for judicial discretion. I am concerned that it doesn't cover the long record of the person or the breach of conditions, something that the government would like to retain, for sure. And frankly, I have some technical problems with it.
I think in part, Mr. Comartin, what you're trying to do here is expand upon the words that we chose to use in drafting the bill: “if the circumstances justify”. As you know, the more common expression in the Criminal Code is “in exceptional circumstances”, but we deliberately didn't use that here because the circumstances won't be that exceptional; they'll be fairly common and, in the case of the parole loss and the remission loss, will be universal.
I'm just not sure that trying to expand on this works, because you have conditions specified in the order for the person's detention, so the decision the JP makes isn't necessarily going to speak to conditions, other than that he'll be sending him to the remand centre or to a remand centre in his community.
The second element you have is “any negative impact on the person as a result of that detention”. Well, obviously for everyone detention has a negative impact. Also, you are making it personal to each individual offender. That's going to eat up a lot of court time. You're going to have to hear some kind of evidence as to what that impact was and whether it disproportionately affected a particular offender.
Then you have the basket clause, which is fine.
I can't really go further than that. It's really a policy decision.