Justice Committee on Dec. 7th, 2009

[Michael B. Murphy]

New Brunswick has not done any study. However, we had a debate on mandatory minimums for offences and frauds that were sometimes in the order of hundreds of thousands of dollars. It is not a study, but our conclusion was that we found sentences to be too short. We do not have any studies available.

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

Therefore, you do not know. The federal Department of Justice wanted to know, and they ordered a study: I quote:

Although mandatory sentences of imprisonment have been introduced in a number of western nations, few jurisdictions have evaluated the impact of these laws on prison populations or crime rates. The studies that have examined the impact of these laws reported variable effects on prison populations, and no discernible effect on crime rates.

I would like the lawyers present to answer me on this issue. I will give you a striking example of something that we have experienced. We established a seven-year mandatory minimum for the importation of marijuana. It was at that moment that the use of marijuana had its greatest increase in this country.

Do you not believe that if we wanted to do something truly effective, we should move towards the solutions proposed by Mr. Rosen? Rather than considering a small bill like this one to justify some kind of principle according to which mandatory minimums are included in legislation, popularity is increased and justice better served, we would do better to move towards stricter regulations that would convince people who are prepared to perpetrate major frauds that if they try, they will be caught.

[Suzanne Costom]

I would like to say something.

You asked if there were any experts among us who had ever carried out studies on the effectiveness of mandatory minimum sentences. I can tell you that within the CBA, the Canadian Bar Association, we have studied these issues several times. I know that we do not have much time, but we came to more or less the same conclusion as that stated by the Honourable Mr. Ménard, according to which mandatory minimum sentences do not prevent crime. They take discretion away from the judge, who plays such an independent role in our system.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Comartin, you have three minutes.

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

I have two quick questions.

Mr. Rosen, you're obviously not much of a supporter of the U.S. model. Is there a model elsewhere in the world internationally that we should be looking at in terms of trying to regulate?

Mr. Minister, are you proposing to designate the proceeds of the civil forfeiture to a specific source, or will they go into general revenue?

[Michael B. Murphy]

I believe in the other provinces they're going into general revenue, but there is nothing to preclude special funds being designated for that. So we're in the process of drafting that. It's something we're considering. It has to go to cabinet, but it's something under discussion, and its time may come.

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

Mr. Rosen.

[L.S. (Al) Rosen]

I think a combination of what's happening in the U.K. and the U.S. is workable in Canada. The whole point that has caused immense concern to investors, which will probably result in many of them withdrawing from the Canadian market, is that there is just no one to really tell your story to, to pursue it. In the U.S. you can get so far with the SEC, as you can with the U.K. system. In some of the European systems--I'm out of date--it's quite possible that there's something there. Australia is another one that comes to mind.

I think if we made a Canadian version of the best parts of the others, it would be better than having zero, which is what we have now. We have the self-regulating organizations, and they are not helping.

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

That was the experience with Madoff in the U.S. and with the exchange commission there. I didn't gather much confidence from the experience: you had whistle-blowers going in, you had clear evidence, and yet it took ten years.

Why should we be at all confident that the U.S. model would be workable here?

[L.S. (Al) Rosen]

I think the U.S. model was workable. To be frank, the Bush administration, towards the end, put pressure on the SEC. You saw a number of meltdowns in the last term. If you go back to the prior periods in the U.S., you can see...

I know for sure that there are frauds that are caught in the U.S.--they've been worked with, and we've been involved with them--that are not prosecuted at all in Canada. As imperfect as the U.S. may be, Canada is very far behind, and I'm not exaggerating. I've had too many cases and too much experience to pretend that we're not far behind.

[The Chair, Conservative, Ed Fast]

Thank you.

Mr. Rathgeber, you have one last question.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

I am intrigued by this whole debate regarding minimum mandatory sentences.

Ms. Costom, you indicated that sentencing principles require proportionality and individualization of sentences, and that in the view of the Canadian Bar Association, judges are in the best position to determine those matters.

I have two questions. What role does Parliament play in sentencing guidelines, since we live in a democracy, not a judiocracy? As well, why does the Canadian Bar Association consistently lobby against minimum mandatory sentences but not maximum mandatory sentences, such as 14 years for fraud? Why is it only on the minimum side that we hear the Canadian Bar Association voice its opposition?

[Suzanne Costom]

The Criminal Code has always been modelled on a system of maximum sentences, not minimum. The Canadian Bar Association doesn't generally take issue with that model because identifying the maximum sentence in relation to a particular crime is an indication of Parliament's views as to the seriousness of an offence. A sentence may be six months, 18 months, two years, five years, 10 years, or 14 years. The maximum sentence is a sign from Parliament as to what level of moral culpability we generally would find associated, at the highest level, with that offence. It doesn't tie the hands of judges at all, but it does send the message that you talked about to those people within the justice system, and it's a message Parliament certainly must send, because it's their job to do so.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Do you agree with me that if you were truly in favour of not restricting judicial discretion, you would also be against the maximums? You would leave it to the judges to individualize the sentences and to determine a sentence that was proportional.

[Suzanne Costom]

I don't think that there has to be an all-or-nothing choice between parliamentary democracies and judiocracies. I don't think one has to choose one or the other. I think that the appropriate balance is to set maximum sentences, and that Parliament should do that and should continue to do that. Certainly we've seen bills over the past few years, for example, even in the fraud provisions, that have upped maximum sentences from 10 years to 14 and so on. That is the right way for Parliament to send a message, and the Canadian Bar Association generally does not take issue with it because we do support the role of Parliament, which is not inconsistent with allowing for a broad range of judicial discretion within that range at the same time.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

It's because you support leniency.

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you to all of our witnesses. We thank you for--

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

On a point of order, she should get a chance to say yes or no to that. It wasn't a question, it was a drive-by schmear.

[The Chair, Conservative, Ed Fast]

Well, she said thank you, so....

Before we adjourn, I want to thank our witnesses for appearing.

Each one of you has made a significant contribution to our discussion on this bill. I'm sure a lot of this will be taken back and we'll have a look at the bill again and see what other elements we can add to it to make it stronger.

Thank you to all of you.

We're adjourned.