If that one passes, we'll be happy.
NDP-7 was an alternative. We would change line 22 with the following: “previous two years, or”. That takes us to our first seven—those seven amendments.
The next one would be L-16, which I won't read, but we also have provisions to change in the event of a failure of our previous amendments. The amendments that relate to a school are, we think, far too broad and vague, and we would seek to reduce those. But I think I will wait until we debate Mr. Cotler's amendment L-16 before we get to ours. So I'll just leave those there for now.
I want to talk about why we made these changes, and about mandatory minimum sentences in general, because the first section here deals with mandatory minimum sentences of one year, and of two years in the case of certain offences, and five years less a day in other sentences. So the principle of mandatory minimum sentences can be discussed in relation to this particular section, and other sections as well.
I think one of the functions of the compromise agreement we made last Thursday was to allow for no restrictions on debate of mandatory minimum sentences, and these particular sections of the bill contain quite a few of them. We're very concerned about this move being made by government. We don't understand the rationale for it, or whatever rationale has been offered is not supported by any evidence that we've seen. In fact, the vast majority of what we heard about mandatory minimum sentences from the witnesses was pretty clearly opposed to the value of mandatory minimum sentences.
We did hear from the Canadian Bar Association on this. They only had a brief five minutes to make their presentation, and they didn't focus exclusively on this. But I do want to focus on this aspect of it because I think their comments deserve significant consideration by this committee. We had the Canadian Bar Association testify before us, and I think it's worth putting on the record that the Canadian Bar Association consists of lawyers across the country—I guess Canada outside of Quebec, because there's a separate organization in Québec called the Barreau du Québec, which also appeared before our committee and had a brief. I'll make some references to that as well.
I know my colleague, Madam Boivin, who is very familiar with the Barreau and their concerns and their views, and with the operations of the Quebec justice system and the Quebec bar, would no doubt wish to talk about this as well.
But if I may focus, first of all, on the Canadian Bar Association, when they come before committees of this House, they don't come as representatives of one section of the bar or the other. In other words, they're not just defence counsel and they're not just prosecutors; they represent the association as a whole. They do have a criminal justice section, and the criminal justice section is composed of those lawyers who have practised in the criminal bar. They represent prosecutors, they represent defence counsel, and they work very diligently to present a balanced view of the law to committees such as ours.
In my experience as a member—a former member, I guess now, probably a lapsed member at this point of the Canadian Bar Association, but a member for many years—of the Canadian Bar Association, and also having seen their briefs and attended some of their conventions, they're very determined to put forth a very balanced view of the law, particularly when it comes to criminal law, because they do represent both sides of the street, as it were, acting both in the interest of the rule of law and in the interest of justice. So when they speak, they speak with a voice that I think ought to be listened to.
They stated their comments about their concerns. In this case, they were reiterating their concerns about the amendments to the Controlled Drugs and Substances Act contained in Bill C-10. They said that public safety concerns could be better met with existing legislative tools, and that current law was adequate to meet the public safety concerns. They don't believe the bill would be effective. They believe it would be costly, would add to strains on the administration of justice, could create unjust and disproportionate sentences, and would ultimately not achieve its intended goal of greater public safety.
That's a fairly broad statement that leads one to ask why we are bringing in this legislation if the major group knowledgeable about the laws in Canada—those who appear in the courts daily representing the crown and accused persons—are saying that the tools are already there; that these changes are ineffective, costly, and would put strains on the administration of justice; and that they would create unjust sentences. That's a fairly strong condemnation of legislation that's before us now.
I spoke today about the thousands of people who are concerned about this bill. I have received in excess of 15,000 letters from Canadians across the country concerned about Bill C-10, and a lot of the concern has to do with the greater level of incarceration that will result from the mandatory minimum sentences, many of which are contained in the Controlled Drugs and Substances Act provisions. We have comments from the Canadian Bar Association to the effect that these mandatory minimums do not advance the goals of deterrence, particularly in cases of drug offences.
Some people think that by increasing sentences you're actually going to deter criminals from committing crimes. The CBA opposes the use of mandatory minimums in this situation because they don't believe it advances the goal of deterrence. They say that international social science research makes this clear.
They cite the government in the Department of Justice's 1990 book, Directions for Reform, which says that the “evidence shows that long periods served in prison increase the chance that the offender will offend again.... In the end, public security is diminished rather than increased if we 'throw away the key'”.
That's a justice department book. Granted, it's somewhat dated, but that's been the consistent message of evidence and research throughout the years since.
The second problem is that mandatory minimums do not target the most egregious or dangerous offenders, who will, because of the nature of these criminals, already be subject to stiff sentences because they're committing more serious crimes. Often the less culpable offenders are caught by the mandatory sentences and subject to extremely lengthy terms of imprisonment.
This is particularly true in the drug situation, where we're picking up first-time offenders engaged in drug trafficking. They are the small potatoes. They're the ones who get hit with the mandatory minimum sentences. They're not the big players. You end up filling up the prisons, driving up the market price of drugs, and allowing the bigger players--organized crime, the criminal gangs--to take control over this situation. You end up filling the prisons with these other people.
The other thing they say is that mandatory minimums:
have a disproportionate impact on those minority groups who already suffer from poverty and deprivation. In Canada, this will affect aboriginal communities, a population already grossly over represented in penitentiaries.
Aboriginal people represent more than one in five admissions to Correctional Services, as of 2004-05, and it's going to disproportionately affect them, according to the submission of the Canadian Bar Association.
The other important objection that's been put forward is that the legislative changes to the Controlled Drugs and Substances Act will:
subvert important aspects of Canada's sentencing regime, including principles of proportionality and individualization, and reliance on judges to impose a just sentence after hearing all facts.
What we have then, according to the Canadian Bar Association, is a “complicated system of different escalating” mandatory minimums, depending on a whole series of complicated factors. They believe that because of this, the complexity of the existing sentencing principles would “increase the court time required for sentencing hearings” and “[f]ewer accused would be likely to plead guilty”, because there's no incentive to do so.
Often, of course, guilty pleas are related to negotiations about how an offender is treated. If there's no advantage to a guilty plea, such as a potential reduction in sentence by a sentencing judge, because that's considered a mitigating factor for sentencing.... If you plead guilty, the judge takes that into consideration. You're saving the court's time by admitting your guilt and all of the other things that go with a guilty plea. That provides an incentive to plead guilty.
As a practitioner of criminal law, I know, and as anybody who's done it knows, many cases are resolved by avoiding a trial through a guilty plea, as happened a couple of weeks ago in the case of the Conservative Party of Canada and the Elections Act. The guilty plea avoided a trial in that case.
That's not an uncommon thing at all. In fact, the operation of our courts and the administration of justice throughout Canada depend on the prosecutor and the crown counsel developing an understanding as to what an appropriate sentence would be. It has to go before a court, for example, for approval, but it does provide an incentive to have matters go to the courts. If every matter that went to the court had to go to trial, the cost of the administration of justice would be through the roof.
The Canadian bar says, of course:
Fewer accused would likely plead guilty, adding to current strains on court resources.
They believe:
that the Bill would often conflict with existing common law and statutory principles of sentencing, such that sentences could be excessive, harsh and unfair in some cases.
I think that's a legitimate and serious concern and a reason why this type of sentence should be avoided, if at all possible. There's no indication that they would do any good in relation to deterrence, in this particular case, or in the reduction in crime.
Many of the factors listed as requiring or leading to a mandatory minimum sentence in clause 39 and in others are already aggravating factors that would be considered on sentencing. They're already required to be considered by the court in accordance with section 718 of the Criminal Code, which talks about sentencing principles. In terms of an individual sentence and the role of the judge, they're already required to be taken into consideration.
Many of these provisions are overlapping. In some instances, the bar association said the combined operation of the provisions will result in a sentence that's unfit or offends section 12 of the Charter, and a sentencing judge would have no discretion to address those problems because of the mandatory minimum requirements.
These mandatory minimums would be required to be applied even though the circumstances of the offence and the degrees of responsibility vary quite significantly. In these provisions in clauses 39, 40, and 41, we have arbitrary factors that don't relate to the degree of responsibility or the circumstances of the offences, and they don't meaningfully distinguish between the levels of culpability.
Clearly, if we're talking about the general notion of the punishment fitting the crime, I think everybody in the country, except people with a perverted sense of justice, would say yes, the punishment should fit the crime. Well, how do you achieve that? Well, we achieve it for the most part in our justice system by hiring and appointing competent judges to use their knowledge, ability, and experience to apply the circumstances of the offence and the circumstances of the offender, to take into consideration the factors that are laid out in the Criminal Code as to what would be aggravating factors, to consider the mitigating factors that might relate to an individual, and come up with an appropriate sentence.
Here we have what the Canadian Bar Association calls arbitrary factors. For example, when we're talking about the production of marijuana, the mandatory minimum sentences are geared to the number of plants that are produced. If they're less than 201 and for the purposes of trafficking, the minimum mandatory sentence would be six months, but if less than 201 for the purposes of trafficking and any of the aggravating factors, it would be nine months. If more than 200, but less than 500, the mandatory minimum would be one year. If there are any aggravating offences, it would be 18 months.
So there are all sorts of anomalies here that say, well, the number of plants makes the difference. If it's over 500, it would be two years and, if there are any aggravating factors, it would be three years. Then they come out by saying:
In our view, it is contrary to common sense for someone responsible for a 200-plant grow operation to receive [six months] while someone responsible for 201...[would] be subject to twice that sentence.
This is the arbitrary nature of it.
How can these mandatory minimums that we're setting out here as some kind of a complicated code actually be fair? Is someone who has 201 plants more culpable or blameworthy than someone with 200? How does that make a difference in terms of a cut-off? It can only be considered arbitrary. The actual factors that have to do with culpability and what's aggravating or not would certainly be of the nature.... Other factors that would be taken into consideration with respect to the individual, whether the individual was someone engaged in a commercial operation for profit, whether he or she was someone who was growing it for medical purposes even though they didn't have a permit, what the factors were involved with the individual, whether it was a commercial operation that had been going on for years—all of these are factors that could make it more serious or less serious.
The concern is that we're removing judicial discretion to determine an appropriate sentence. We will talk, perhaps, about judicial discretion a little later, but I want to set out what the Canadian Bar Association talked about. These are lawyers who have practised for many years in criminal justice, and they're saying that what this legislation does is remove discretion from sentencing judges to effectively determine which sentence can best balance all fundamental objectives of sentencing.
There are a number of objectives of sentencing—not just one, and not just deterrence. There is individual deterrence; general deterrence; the protection of society; rehabilitation; and whether or not there are aggravating factors, for example, if someone is a repeat offender, etc. All of these things are taken into consideration by a sentencing judge.
If you prohibit judges from exercising discretion to determine an appropriate sentence for an offender, it's contrary to the spirit and letter of a large body of jurisprudence that recognizes the unique position of sentencing judges in assessing and determining the most appropriate sentence in individual cases.
That says a lot, because it says that this legislation is departing from the experience we've had in our criminal justice system based on precedent—experience, principle, and the body of jurisprudence, which is case after case. If there are aggravating factors that relate to the offender or the offence, the crown prosecutor is there. His or her job is to make sure the judge is aware of all of those things that would lead a judge to consider a higher sentence if it were appropriate in the circumstances.
The defence counsel's role is to make sure the judge is aware of all the mitigating factors that ought to be taken into consideration or are urged to be taken into consideration. The Canadian bar says there is a good reason for conferring discretion on the judge who is charged with imposing a fit sentence. He has heard the particular circumstances of the offence and the offender and is best able to craft a sentence that will balance all the goals of sentencing. If the evidence demonstrates that the offender should be subject to a lengthy prison sentence, the crown will have brought that fact to the judge's attention.
The judge is also best equipped to assess what will address the needs and circumstances of the particular community where a crime occurred. If there's a particular place in the country where a certain crime is rampant and control of that crime by a stiff sentence is appropriate, you will see a judge impose a stiff sentence and say in his or her sentencing determination that it is a matter of community and public concern to a huge extent in this community, and deterrence is more important as a result than many of the other factors, because we need to send a message to likeminded persons that this is offensive to society.
That's the kind of role a judge plays in a community, by crafting a sentence that's related to the individual and the community.
The Canadian bar says that in their experience, repeat offenders and serious drug traffickers already receive significantly elevated sentences, even above the proposed mandatory minimum sentences. This bill would remove the discretion that the sentencing judge requires to be fair, to deter criminals, and to rehabilitate offenders if there is a real prospect of doing so.
The other aspect of this is that our justice system has the checks and balances of an appeal process. Where a sentence imposed at trial is demonstrably unfit or an error of law has occurred, an appellate judge can adjust the sentence accordingly, taking into account the principles of sentencing.
This legislation would not only limit a judge in devising an appropriate sentence; it would also limit the scope of an appeals court where a clearly unfit sentence has been imposed. The bar association said that in their view the formulaic approach in Bill C-15 would lead to real injustice in certain situations, and judges will be unable to fulfill their role as judges to address that consideration.
That is a compelling argument as to the role of the judges and minimum sentences, and how they fundamentally change our approach to criminal justice in Canada.
The Criminal Code is an important document here. It's not simply a matter of.... The Criminal Code of Canada doesn't just have offences and penalties; it outlines the principles of the criminal law and also the principles of sentencing, which require a judge. At the time of sentencing it requires a judge to consider and weigh all competing considerations. Well, they're not going to be able to do that because that weighing process is going to be constrained by what this bill provides.
The approach accords with a balanced and measured sentencing regime, and, as the CBA puts forth, with common sense. The emphasis on deterrence over all other sentencing principles is misplaced, according to them. They quote a recent study by the Canada Safety Council, in 2005, by Professors David Paciocco and Julian Roberts, as follows:
There are few, if any, who would deny a general deterrence affect of the criminal law, but recent studies confirm what has been long believed by most criminologists that there is little demonstrable correlation between the severity of sentences imposed and the volume of offences recorded. The greatest impact on patterns of offending is publicizing apprehension rates or increasing the prospect of being caught.
That's pretty interesting because that accords with many of the things the NDP has been saying about the need for enforcement in Canada by greater policing assistance to communities. If you intend to deter crime, what works better than increasing prison sentences and the costs that go with that are offenders knowing that the likelihood of being apprehended is high; in other words, the chances of being caught are great. That will be a far more effective deterrent, and the greatest impact on the patterns of offending is based on that.
The section of the code that I refer to, section 718, requires as well that the particular situation of aboriginal offenders, for example, be considered at sentencing. If a less restrictive sanction would adequately protect society or where the special circumstances of aboriginal offenders should be recognized, increased sentences and minimum mandatory sentences would conflict with that principle. The Supreme Court of Canada has also recognized that incarceration should generally be used as a penal sanction of last resort and that it may be less appropriate or useful in the case of aboriginal offenders.
Well, that principle is thrown out the window in the case of aboriginal offenders, and as stated earlier by the Canadian Bar Association in their brief, the mandatory minimum offences will disproportionately affect aboriginal people.
The other thing they point out in their brief is that in the case of aboriginal people, penitentiary terms are generally served far from communities and families, going against efforts to promote eventual reintegration or rehabilitation of offenders. These are other important sentencing principles. They point out that local judges would have no option but to sentence an offender from Nunavut, for example, to a minimum mandatory sentence in Ontario, where offenders from the territory are routinely sent.
We're seeing the effect of these mandatory minimums being disproportionate in the cases of aboriginal people. This is contrary to the principles of sentencing, contrary to fairness, contrary to what the Supreme Court of Canada has said, and contrary to the ability to rehabilitate and reintegrate aboriginal offenders.
An offender from Nunavut could be in Ontario, far away from his family, far away from being able to have visits that would keep him in touch with his community and family, and lead to the rehabilitative function, which is an important part of a sentence. These are important reasons why mandatory minimums are inappropriate in these drug provisions in subclause 39(1).
Do we have bells again?
