Evidence of meeting #13 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was clause.
A recording is available from Parliament.
NDP
Françoise Boivin NDP Gatineau, QC
We just want to know whether to look to the left or the right. We like knowing that. We are just pointing out that the correct version is on the left, that's all.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I'm just wondering if you're saying my amendment in clause 34 has been overtaken. I think it's still moveable.
Conservative
The Chair Conservative Dave MacKenzie
L-14, your amendment. That's what we're dealing with now. It's moveable, yes.
November 22nd, 2011 / 9:20 a.m.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Thank you, Mr. Chairman.
I move that clause 34 be amended by replacing line 8 on page 19 with the following:
742.3, if exceptional circumstances exist that justify the service of the sentence in the community or if
Standing alone, that may not make much sense, so let me just try to very quickly explain the rationale.
The whole approach here is to permit the sentencing judge to consider the imposition of a conditional sentence order, notwithstanding the restrictions in exceptional circumstances. The rationale for that is that by removing the possibility of a conditional sentence for so many types of offenders, it is expected that the judge may move towards what might be called the least severe sentence, whenever possible. Now, if a conditional sentence is no longer available, the judge may consider suspended sentences followed by a period of probation if incarceration is inappropriate. But in many cases, neither a suspended sentence nor a system of incarceration is appropriate.
To sum it up, judges, defence lawyers, and crown counsel may well face situations where a more reasonable and just result is simply unavailable. Now, given what might be called legislative creep and the erosion of conditional sentences, first in Bill C-9 and now in this bill, I am proposing—this is a recommendation that was made as well by the Canadian Bar Association and indeed is based upon their recommendation—that consideration be given to including safety-valve provisions, because in effect Bill C-10.... This is a specific case study that restricts and limits judicial discretion on sentencing. But that discretion has formed a fundamental part of our criminal justice system.
The U.S. experience with mandatory sentencing guidelines resulted there in a dramatic transfer of power from the judiciary to the prosecution service, which they are revisiting and reconsidering and are indeed moving away from as a result, in particular, of the U.S. Sentencing Commission report of just a week ago.
To sum up, Mr. Chairman, conditional sentences in Canada would give judges the capacity to shape sentences, based on their experience and the collective experience of other judges, for specific offenders who are convicted of specific offences. Any further limitations on that judicial discretion, regrettably, will tread too deeply into the important role judicial review plays with regard to the specificity of the offence, the specificity of the offender involved, and the ability to exercise that discretion appropriately, having regard for all the circumstances.
Conservative
NDP
Jack Harris NDP St. John's East, NL
Mr. Chair, we prefer our own amendment and would rather use our ten minutes to talk about that.
Conservative
The Chair Conservative Dave MacKenzie
Having heard Liberal amendment 14, we will vote on the amendment.
(Amendment negatived)
NDP
Jack Harris NDP St. John's East, NL
Thank you, Mr. Chair.
I'll be sharing my time with Madame Boivin.
Our amendment suggests that the approach being taken by the legislation is unduly broad. We would seek to ameliorate that by our provision, which would include the phrase before all of the provisions here to say that a conditional sentence would be available:
742.3, if exceptional circumstances exist relating to the offence or to the offender that justify service of the sentence in the community or if
That would be inserted before the series of conditions here.
The rationale for this is that the government's proposal is to create a whole series of circumstances where a conditional sentence is unavailable. It's been criticized by a number of bodies, including the Canadian Bar Association, whose view we agree with. There's a whole series of listed offences here, for example, that would hardly ever attract the conditional sentence in any event. They're not used for serious violent and serious property offences. They're really a tool that the courts use to seek to rehabilitate an offender by perhaps having conditional sentence of service in the community plus a long period of probation that's aimed at rehabilitating an offender.
To use the approach as is contained here--any sentence with a maximum imprisonment of 14 years or more—as a tool is unduly broad. There are many offences that have a maximum penalty of 14 years or greater that hardly ever attract that particular sentence. It really is contrary to the normal principles of sentence, one of which is proportionality, which is designed to reflect the necessary balance that must be achieved in choosing a just sentence. According to the Canadian Bar Association, for the balance to contribute to the administration of a justice system it must make sense to the public it is intended to protect, and logic and fairness require an individualized proportional sentence.
That's what we pay judges for. They are paid a considerable amount of money. We make a great deal of effort in selecting people who are experienced and knowledgeable. If you talk to judges across this country, they say one of the most important things that they do is sentencing. That's what we're paying them for. If they make mistakes, there's an appeal process. That's what we pay appeal court judges and Supreme Court judges to do, if a provincial court judge makes a mistake.
We do have a system that responds to the individual and to an individualized offence. Much of this is actually unnecessary, because conditional sentences would hardly ever apply, if ever. We have to ensure, in our view, that there's provision for exceptional circumstances. A judge is the one we've asked, as a society, to play that role in determining when exceptional circumstances exist.
The list remains there as to the ones the government record supports as being not available for conditional sentences. If the amendment were made to allow that there may be exceptional circumstances that relate either to the offence or the offender that justify a community service sentence, they may be appropriate. It may have to do with diminished mental responsibility or diminished intellectual responsibility. It may have to do with the offence itself being perhaps technical in nature or a case of somebody being a party to an offence in law but not much of a party to the offence.
In fact, there are individual circumstances that you can't predict here but that would give rise to the desire to have a conditional sentence in a particular circumstance. We think that would be an improvement to the bill to allow for that discretion.
I'll pass it on to my colleague Madam Boivin to continue our period of time on this clause.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Harris.
I just want to reinforce the point that Mr. Harris made. In my opinion, the amendment we are proposing will just make this clause a little clearer for those called upon to impose sentences. As everyone who has talked to people involved in criminal trials knows, the most difficult aspect is often the sentencing. So it makes sense to provide the courts with good tools, fully accepting the fact that it is there that cases will be heard and it is there that the facts will have to be established and the situations analyzed in their entirety.
The idea is clearly stated in the case of a sentence of less than two years. So it would read: “if exceptional circumstances exist relating to the offence or to the offender that justify service of the sentence in the community or if”. Mr. Harris has pointed out clearly that we are not removing in any way the conditions that the government is proposing to add to section 742.1 of the Criminal Code, because paragraphs a to f remain unchanged. It simply clarifies a condition that will perhaps make sentencing a little easier for judges.
The judiciary tells us, not without good reason, that, as legislators, we often put a lot on their plates. It is not easy to find the right balance. A sentence must clearly be a punishment for a person at the same time as it must make sure that it is possible for the person to be rehabilitated.
I think this gives a good balance. It is just a clarification. It does not change or get rid of the system. This amendment will just clarify what the government had in mind with its Bill C-10.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you, Mr. Chair.
I have done a lot of thinking about this particular issue and the minimum mandatory sentences, and I was just going to say that the act we've proposed does allow for less than a minimum mandatory sentence, if the accused, for instance, has drug counselling. First of all, there is an option for that, so if there is an issue with drugs—obviously a bad habit—the court can sentence the accused to something other than the minimum.
Also, most Canadians are shocked when somebody commits a serious crime and they serve their sentence in the community, such as the case I just mentioned with a person who committed incest and sexual assaults on his daughters from the time they were nine years to fifteen years. He was only caught some twenty years later, when he fondled another child who was the granddaughter of his friends.
When that sentence came about I was ashamed of it, first of all, but I think anybody who was in the court, and any of the people who were involved, were quite frankly dismal. They were very shocked and very surprised that a person who could commit that kind of offence could then serve the time in the community.
I think that's something this section goes with, and I think that across the country we clearly need to have consistency in sentencing, to send a clear message to these people. Although I sympathize somewhat with Mr. Harris and Ms. Boivin in relation to leaving it to judges, I think as legislators we clearly have an obligation to protect Canadians first and to have consistency across the board, to let the accused know that if they commit the crime they're going to do serious time.
That's why I would not support the NDP on this particular set of amendments.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
(Amendment negatived)
We're at amendment NDP-3.
Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
I can see by my own clock that I have at least a couple of minutes to devote to this particular one.
This is designed to remove lines 15 and 16 on page 19 of the bill, and would--
Conservative
NDP
Jack Harris NDP St. John's East, NL
I didn't start it on time, but I'll take the chair's advice as to when I'm finished.
This is to effectively remove the mandatory minimums from the category here, basically for the reasons I just said.
I don't know when the case was that Mr. Jean talked about; I suspect that would not occur today. There are always individual cases that do get the attention of the media and the public from time to time, but there is a mechanism of appeal there, and surely one would expect the crown to appeal in any appropriate case. I don't think the legislature needs to deal with every case that comes before the courts.
(Amendment negatived)
Conservative
The Chair Conservative Dave MacKenzie
Now, Liberal amendment number 15 cannot go ahead because Liberal amendment number 14 failed, and amendment L-15 refers to “exceptional circumstances” in amendment L-14.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Except it's a distinguishable approach to the exceptional circumstances, Mr. Chairman, because it's dealing here with the specific issue of where the offender may suffer from a mental illness or disability. It's a particularized application, Mr. Chairman, of what we referred to before.
Conservative
The Chair Conservative Dave MacKenzie
I think, though, that you have to have the term “exceptional circumstances” that you're referring to in here in the bill, and it's not in the bill. That was in your amendment L-14 that failed.
NDP
Jack Harris NDP St. John's East, NL
I don't see much point in defining “exceptional circumstances” if they are not there. We can revisit the other amendment, though, if you want.
Conservative
