Justice Committee on Dec. 2nd, 2009

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Thank you, Mr. Chairman.

Minister, I wanted to ask you about two specific areas. Obviously, these changes in restricting conditional sentences will lead to a higher rate of incarceration, which puts additional pressure on the Correctional Service of Canada, and I know you're going to say you have great confidence in your colleague, the Minister of Public Safety. But I'm wondering, in your discussions with him or your discussions with your provincial counterparts, whether you've looked at additional resources that would be needed both in the provincial jails, where the vast majority of people who are incarcerated serve time, and in the Correctional Service of Canada, because of the increased population that will face prison time. So it's a question of resources. And I worry about aboriginal inmates increasingly being incarcerated as a result of limiting these conditional sentences.

The other question would be around probation orders. I think what we're going to see is that judges are now going to choose between jail, incarceration, and probation orders with often restrictive conditions, one would hope, for serious offences. Yet convicting somebody of breaching a probation order is much more difficult than incarcerating somebody who breached a conditional sentence. Are you worried, or have you thought about what will happen in terms of discrediting an already overburdened probation system that may face increased pressure as a result of this bill as well?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't agree with your conclusion that we have a discredited probation system in this country. Again, I would ask you specifically with respect to aboriginal Canadians, because you did raise that subject...that probation is one of the eligible sentences that can be handed down, and we have to have confidence, as we do, in the criminal justice system in this country that when it is appropriate, judges will order that.

But with respect to the federal penitentiary system, you're quite correct, and I'm glad you mentioned that. I'll vote my confidence in my colleague, the Minister of Public Safety, and all that he has done in that area. His stewardship of the Canadian penitentiary system has been impressive, and I would agree with all those who agree with me on that, as I'm sure many would.

I think this will be felt, though, within provincial correctional facilities. As I say, I've indicated to them on a number of occasions that this is a direction that governments move in. They've all looked at that. Again, over the years I've had people raise the issue that conditional sentences aren't always appropriate in very serious crimes. I think we've struck that balance between what the less serious crimes are within the criminal events and the more serious crimes for which conditional sentence shouldn't be an option.

[The Chair, Conservative, Ed Fast]

You have 20 seconds, Mr. LeBlanc.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Minister, have you...or can your department, perhaps, undertake to provide some analysis with respect to the additional cost that this bill would represent for the Correctional Service of Canada?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Ms. Kane.

[Catherine Kane, Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice]

The Correctional Service of Canada does not anticipate a significant increase in costs, because one of the first steps in the determination of whether a conditional sentence should be ordered is to determine that the sentence should be less than two years. Assuming that remains the first step, sentences of less than two years would have to be served in a provincial institution if incarceration is the sentence. Some of them would get probation, some of them would get other sentences, some of them might get provincial jail time. So it's hard to estimate that any people who would otherwise have had a conditional sentence might end up with a sentence of more than two years. It would be speculation only.

[The Chair, Conservative, Ed Fast]

Thank you.

We're going to move on to Monsieur Ménard.

You have seven minutes.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Thank you.

Mr. Minister, I practised criminal law some time ago in the days before the provisions on house arrest were adopted.

When that came in, judges found it to be a really good middle ground when they were dealing with individuals who, for general collective disincentive reasons, needed to punished by restrictions on their freedom. But as we often say — and I imagine the same saying goes outside Quebec — prison is often the best place to learn about crime. It is not a good idea to send first-time offenders to that school. Ultimately, the system could impose sentences that were punitive but also beneficial in other ways: allowing individuals to stay in school, keep their job, continue supporting their family, if they have one, improving their chances of getting a job, making reparations to victims of their crimes.

Why do you think all these goals cannot be pursued in cases where it is a first offence and the judges feel it is not a good idea to send the accused to crime school?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I don't agree with your conclusion that our penal systems are crime schools, and I don't agree with your comment that it's not a good idea to send people who have committed their first offence to jail. It depends on what that first offence is, quite frankly. When people commit very serious crime, it may be only their first crime; nonetheless these are very serious matters.

Again, we want to reach out to individuals, we want to get them help, we want them to use their time constructively if they are in fact detained, if it becomes necessary to put them in jail. But there are many who say, me included, that people who commit sexual assault, people who are in the business of, for instance, burning down homes--people who commit these serious offences shouldn't be eligible to go home to their home afterwards. That's what we're saying in this bill, and I think it's a very reasonable compromise.

If you remember, towards the end of my comments, I said, yes, for less serious offences I can see where it is appropriate that some would be given a conditional sentence and sent home. I can understand that, where it works. But I think when the crime becomes a very serious crime, which is what we have identified—these are very serious crimes—they should not be eligible to be sent home. That's what we're saying, and I think that's reasonable.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Exactly. Do you not think that this assessment can vary a great deal depending on many factors, including the offender's involvement, for example, in a crime where he or she is not the instigator, but only an accomplice? There are all kinds of other factors. Do you not think it is better to do case-by-case assessments and thus leave it to judges, who are becoming experts in this area, to determine whether the case is serious enough to warrant prison?

[Rob Nicholson, Conservative, Niagara Falls, ON]

I guess it's striking a balance, Monsieur Ménard. I'm of the opinion--and I appreciate that you disagree with me--that when people lure children into the business of sexual assault or commit arson for fraudulent purposes, these are very serious offences for which they should be ineligible for conditional sentences. They should not be sent home after their convictions.

I appreciate that you and perhaps others disagree with that, and we'll have to agree to disagree. But some of these matters are very serious. It hurts the administration of justice--people lose confidence in criminal justice if they agree that these are very serious offences--if people see these individuals being sent home.

Having said that, I agree that there should be as wide a range as possible in discretion concerning probation. I indicated in my opening remarks my support for conditional sentences for less serious offences. I understand that. I understand our role in giving guidance to the court. For instance, we have maximum sentences right across the board. In a sense we're giving guidance. We're making that decision as parliamentarians about the seriousness with which we view certain criminal activities, and we act accordingly.

Again, I appreciate that not everybody agrees with that.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I like your expression "some of these matters are very serious", and I agree with you. But would you agree with me that

some of these matters are not so serious, and in these circumstances it is good that a judge has the discretion to apply a sentence at home?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, I think that sexual assault, luring a child, and arson for the purposes of fraud are serious matters, and people committing these offences should be ineligible for house arrest.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

There is a variety of these offences and the way they can be committed.

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again we'll have to agree to disagree.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I think that your assistant was fully aware that these measures will not mean any additional expenditures for the federal corrections system, because they will be taken only in cases where the judge determines that the sentence must be less than two years. In any case, that will affect provincial jails. I think you know that provincial jails are currently overloaded and overcrowded.

Have you given any thought to compensation for the provinces that take these cases?

[The Chair, Conservative, Ed Fast]

Monsieur Ménard--

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I recall that some of the studies of the previous bill concluded that about a third would go...

[The Chair, Conservative, Ed Fast]

Monsieur Ménard, please place your question.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I was going to do that, Mr. Chair. I am just asking if he made provision for transfers to the provinces whose share of the correctional system he increased.

[Rob Nicholson, Conservative, Niagara Falls, ON]

The provinces are aware of the changes we have made to the criminal justice system, and many of them were actually encouraged by the provinces. I know that you and your party have great difficulty getting rid of the double credit for time served and the implications that has for the provinces. Provincial attorneys general from all political parties are actually encouraging us to move forward on these issues, so it is not like we are taking them unaware or that these issues are coming as a surprise to them.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin, you have seven minutes.

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

Thank you, Mr. Chair.

Thank you, Mr. Minister and witnesses, for being here.

I'm always interested in hearing about the provincial level from an ideological standpoint. But my experience has generally been that when you ask how many additional people are going to be incarcerated as a result of this bill--as it was with Bill C-9--with probably 95% or 98% of them in provincial institutions, not one attorney general or solicitor general in the country can give me any numbers. Members of this committee dug out numbers based on some calculations when Bill C-9 was going through.

I'm wondering if it's any different this time. Do we have any sense of how many offences this is going to cover? You should be able to get that from Juristat. How many more people are we going to have in custody at the provincial level?

[Rob Nicholson, Conservative, Niagara Falls, ON]

You made a very interesting comment. You said that the last time this was before this committee you were unable to get precise estimates from provincial attorneys general.

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

Not just precise estimates, Mr. Minister; none at all.