Evidence of meeting #15 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 minimums.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Catherine Kane  Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice
Philippe Massé  Director, Temporary Resident Policy and Program, Department of Citizenship and Immigration
Paul Saint-Denis  Senior Counsel, Criminal Law Policy Section, Department of Justice

5:20 p.m.

Conservative

The Chair Conservative Dave MacKenzie

That's fine.

5:20 p.m.

NDP

Jack Harris NDP St. John's East, NL

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?

5:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Bells are ringing, yes.

5:55 p.m.

NDP

Jack Harris NDP St. John's East, NL

Unfortunately, I was near the end of what the Canadian Bar Association had to offer, but I'll complete that when we come back.

5:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

We will suspend until after the vote.

You might want to mark it, Mr. Harris—

5:55 p.m.

NDP

Jack Harris NDP St. John's East, NL

Yes.

5:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

—so you don't have to go back.

5:55 p.m.

NDP

Jack Harris NDP St. John's East, NL

I wouldn't want to repeat myself. And we have other colleagues who have something to say.

November 23rd, 2011 / 5:55 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

It's too late for that.

5:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

The meeting is suspended until after the vote.

7:24 p.m.

Conservative

The Chair Conservative Dave MacKenzie

I call the meeting back to order now that the votes are completed.

Mr. Harris, you had the floor.

7:24 p.m.

NDP

Jack Harris NDP St. John's East, NL

Thank you, Chair.

I'll just continue for a brief while on this intervention.

I just want to assure everyone that the purpose of my lengthy speech is not to initiate what might be considered a filibuster, but it is to put, as completely as possible, the arguments on the issue of mandatory minimum sentences in as thorough a way possible.

We have a number of individual amendments that will specifically deal with aspects of it. I will be limiting myself, for the most part, to explaining our amendments and why they are there, and having the vote. It's not intended to prolong, but rather to be efficient in ensuring that the bulk of the arguments are presented in a holistic way.

I have emphasized the Canadian Bar Association brief. We've had a lot of other representations about the concerns on mandatory minimum sentences, but it has a very thorough analysis of this, and it comes, of course, from a very highly regarded group of lawyers—both defence and crown prosecutors from across the country, who are part of the Canadian Bar Association criminal justice section.

Because they contain both, they can't be accused of bias on the part of one side of the law or the other. They are concerned about the rule of law. They're concerned about the way our justice system works, and they're concerned that the principles contained in our sentencing laws and the current reliance on precedent, judges, and the individualization of sentencing is extremely important. They also point out things like the following:

The Criminal Code contains a statutory acknowledgement of the principal of restraint, stating that the purpose of sentencing is to separate offenders from society only where necessary.

And that the Criminal Code states:

...proportionality is the fundamental principle of sentencing, and that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. Proportionality reflects the delicate balance that must be achieved in fashioning such a just sentence.

This is something we'll talk about a little later when we get to the drug courts; they also point out that, “In the area of drug offences, the public is often best protected through harm reduction strategies that encourage rehabilitation.”

They comment that participation in the Drug Treatment Court shouldn't be as restricted as it is in the proposals that are currently in the amendments to the act. In their view, “it should be available to all offenders for whom rehabilitative considerations are appropriate.”

These are important considerations, and I will say I have two other pieces concerning this. One is the representation to the Standing Committee on Public Safety and National Security in March of this year from the former U.S. congressman, Mr. Asa Hutchinson, who was also—and I'm reading from the Hansard of the Standing Committee on Public Safety and National Security for March 3, 2011. Mr. Hutchinson was introduced as a former U.S. congressman who appeared before the committee having represented the State of Arkansas. But he said that he also served in the George W. Bush administration as head of the U.S. Drug Enforcement Administration, or the DEA. He was then undersecretary at the Department of Homeland Security, with a long career in law enforcement:

...leading large agencies, as well as being a trial prosecutor as a former U.S. attorney in the 1980s during the administration of Ronald Reagan, which was really the beginning of our “get tough on crime and drugs” in the United States.

He was before the public safety committee to talk about how he had signed onto what they called in the U.S. the “right on crime” initiative, led by a group of conservatives in the United States who supported a re-evaluation of their nation's incarceration policies. He said, “So I'm only here to tell you a little bit about the American experience” and to provide some insights into what they did in the United States.

He said that what motivated him to sign to this “right on crime” initiative was two principles. One was fairness and one was the long-time conservative principle of cost to the taxpayers.

These were motivating forces in his getting involved in that.

And he talked about the incarceration rate in the United States, which has 5% of the world's population but 23% of the world's reported prisoners, with staggering costs of incarceration. The conservative leaders supported the rehabilitation both at the federal and the state level, and they proposed reforms to the mandatory minimum sentences, to drug sentences. And they initiated reforms that were expected to save about $2 billion in prison costs over five years, most of it going into community treatment for the mentally ill and low-level drug addicts and their treatment. Crime had dropped from 10% in 2004, the year before the reforms, through to 2009.

So we talked about a lot of that. That was part of the U.S. experience that we're hearing about. We're hearing about Texas; we're hearing about other actions in the United States that are important.

The other item that I want to bring to your attention is connected to cost, but it's also connected to human rights and to the costs of prisons and the conditions in prisons. There was a story yesterday on the CBC news that talking about the double-bunking and segregation cells in British Columbia and Manitoba, a practice that was supposed to be abolished. But they show that in at least two prisons, one in Manitoba and one in B.C., and in a number of Ontario prisons, mandatory assessments that are required before double-bunking takes place aren't done. I am quoting the Office of the Correctional Investigator, Mr. Sapers, who testified before us saying that “double-bunking in segregation is a violation of government policy, the Charter of Rights and international human rights standards”.

So what we see as a result of this is that these confined spaces are not designed to house more than one inmate, and you're bordering on inhumane custody. And then they quote some statistics based on a date of September 11, with a snapshot of double-bunking among the general population in Canada's 58 prisons. Nationally, 13.5% of inmates were double-bunked. A half have had no double-bunking, but others showed a high proportion of offenders: for example, in the Frontenac Institution in Kingston, 72%; in Millhaven, in Ontario, 65%; Bowden Institution in Alberta, 50%; Grande Cache, 58%; Mission Institution in B.C., 24.9%.

What we're seeing already is overcrowding in our prisons to the point where we have double-bunking. We know, and we've heard many of the experts tell us, and it's common sense, of course, that this is going to lead...these measures that are here, and the drug provisions and other provisions of this act, which lead to harsher and longer sentences, are going to result in significant increases in overcrowding in prisons, inhumane conditions, possible violations of human rights obligations, as well as, if these conditions are going to be ameliorated, significant costs to the government, to the taxpayers. Whether they're provincial taxpayers or federal taxpayers, someone is going to have to pay.

When we take that into consideration, along with the reasons that this shouldn't be done--as I've just outlined by paraphrasing and in some places quoting the Canadian Bar Association--we're going to have a very serious situation on our hands. These are many of the reasons that thousands and thousands of people have contacted me, and they've contacted other members of this committee and perhaps the chair and the Minister of Justice over the past number of weeks in wholesale opposition to this legislation. These particular provisions are ones that we oppose. Some of the major reasons for opposing them are the consequences of, in this case, the proliferation of mandatory minimums that are going to lead to more people in prison for longer, more recidivism, more crime, and not achieving the safer society that the bill is supposedly named after.

Mr. Chairman, perhaps the next speaker would--

7:30 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Harris.

Ms. Boivin.

7:35 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

We know that we are nearing the end of the time we are allowed by democracy to make ourselves heard on Bill C-10, and more specifically on the amendment to clause 39 of the bill. Before beginning to state my case on this subject, I would like to take the opportunity, because I may not have another chance to do it, to thank our people from the Legal and Legislative Affairs Division and the Social Affairs Division at the Parliamentary Information and Research Service of the Library of Parliament. This is not the first time I have sat on committees and had the chance to read the legislative summaries that I consider to be nonpartisan and that help members do their job. They are amazing sources of information, along with the various witnesses who appear before us. To put these people in context, I would like to quote something in the document dated October 15, 2011, that was provided to us. It concerns the issue of mandatory minimum sentences, clauses 39 to 41 of the bill. The people listening to us or who read us will be thinking this is sometimes very technical. There are in fact a few sentences here, and we are changing... For example, look at an amendment proposed by the NDP, which says:

That Bill C-10, in clause 39, be amended by replacing line 3 on page 22 with the following: in Schedule I, is guilty of an indictable

That is how the proposed amendment concludes. It is not very easy for people to understand.

It has to be understood that clause 39 of the bill amends paragraph 5(3)(a) of the CDSA. For those who are wondering what the CDSA is, it is the Controlled Drugs and Substances Act, that is, the part we are currently studying.

This is what the legislative summary of Bill C-10 says:

Clause 39 of Bill C-10 amends section 5(3)(a) of the CDSA to provide in certain circumstances for mandatory minimum terms of imprisonment for the offence of trafficking in a substance included in Schedule I or in Schedule II if the amount of the Schedule II substance exceeds the amount for that substance set out in Schedule VII. There will be a minimum punishment of imprisonment for one year if certain aggravating factors apply: the offence was committed for a criminal organization, as that term is defined in section 467.1(1) of the Criminal Code (a group of three or more people whose purpose is to commit serious offences for material benefit); there was the use or threat of the use of violence in the commission of the offence; a weapon was carried, used or threatened to be used in the commission of the offence; or the offender had been convicted of a designated substance offence, or had served a term of imprisonment for such an offence, within the previous 10 years. A “designated substance offence” is defined in section 2 of the CDSA to mean any of the offences in sections 4 to 10 of the CDSA, except the offence of possession of a substance found...

Those notes also say:

Defining such places may prove to be difficult. The use of the terms “school ground, playground, public park or bathing area” in section 179(1)(b) as a restriction on the movements of those who may commit a sexual offence against a child was found to be overly broad and, therefore, a violation of section 7 of the Canadian Charter of Rights and Freedoms. The minimum two-year punishment will also be imposed if the offender used the services of a person who is under 18 years of age, or involved such a person, in committing the offence or committed the offence in a prison, or on its grounds. The term “prison” is defined in section 2 of the Criminal Code to include a penitentiary, common jail, public or reformatory prison, lock-up, guardroom or other place in which persons who are charged with or convicted of offences are usually kept in custody.

I encourage people to read that document because it explains the bill clearly, and there are questions stated in the document that are very similar to what we have heard. We have heard them, but not at great length. Fortunately we have read the documents that all of the witnesses have submitted to us. There are people I would have liked to spend more time with to be able to ask them for a little more explanation about the documents we have read. Because we really are dealing with legal matters and it is not particularly easy to understand. We often talk about things relating to criminal law, and we also know that in that area, the burden of proof is "beyond a reasonable doubt". There is a presumption of innocence.

Sometimes, we wonder whether it can still be imposed, or whether there will not be another attempt to try to abolish it. Sometimes, I wonder what kind of legal system we have.

I want to highlight a few points that the Barreau du Québec tried to demonstrate. It should be noted that the representatives of the Barreau had exactly five minutes for their presentation, after which they were interrupted. The representative of the Barreau said that it regretted [Translation] "the government's choice to undertake such a substantial legislative reorganization (over 200 clauses) by presenting an omnibus bill and, moreover, to pass those amendments within 100 days of the return of Parliament".

The people from the Barreau pointed out that [Translation] "there is no objective reason or situation that justifies this approach, particularly since this bill proposes a fundamental transformation of a number of statutes that comprise the legal framework of the criminal law and the treatment of offenders".

Although the bill is called the Safe Streets and Communities Act, after hearing the various witnesses who came to speak here, I have serious reservations about that. Once our work is done today, will we be reporting a bill to the House that will make our streets and communities safer? I have serious doubts about that.

The people from the Barreau continued:

[Translation] When the law requires that everyone who has committed certain offences be sentenced to imprisonment, regardless of the circumstances surrounding the commission of the offence, the specific characteristics of the persons who have committed the offence and the possibility of those persons being rehabilitated, there is a real possibility that these people will become further criminalized.

That is a serious statement. If the entire bill is based particularly on minimum sentences...

7:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Just a second. When you read a document, if you could just slow down—

7:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Slow down for the translator?

7:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

For the interpreter, yes.

7:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Excellent.

I will repeat what I read before, in part:

[Translation] ... regardless of the circumstances surrounding the commission of the offence, the specific characteristics of the persons who have committed the offence and the possibility of those persons being rehabilitated, there is a real possibility that these people will become further criminalized.

7:40 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

No English? Sorry.

7:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

That's right.

We just add to the time. There's no time limit, so....

7:40 p.m.

Conservative

The Chair Conservative Dave MacKenzie

That's fine.

7:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Continuing my reading of the document from the Barreau:

[Translation] In other words, we would actually be afraid that this law will not achieve the objective ascribed to it, while there is a real risk that it will have the opposite effect. Considering the impact of this legislative proposal, it would have been desirable to have a major public debate, one that would allow everyone involved in all aspects of the judicial process and social intervention to be consulted. That kind of consultation would produce a broad consensus concerning the best known methods of: (1) reducing the incidence of crime ...

I stress this because that is the objective of everyone in this room. Continuing:

[Translation] ... (2) responding appropriately to persons who have committed criminal offences, ...

We do all want to be fair, and myself, I do not want someone who has committed a heinous crime to get away with a slap on the wrist, just as I do not want someone who has committed a summary conviction offence to be imprisoned for two years and for the effect to be simply that they become more deeply involved in crime. Reading on:

[Translation] ... while targeting the most effective methods to promote denunciation, deterrence and rehabilitation of offenders, and (3) identifying and remedying weaknesses in relation to reintegration.

Those should always be our three objectives when we consider legislation like the legislation affected by Bill C-10. They go on to say:

[Translation] Bill C-10 comes at a time when the data provided by Statistics Canada show that crime is declining in Canada; in 2011, the crime rate in Canada was at its lowest point since 1973. Violent crime is also declining, year over year, to a lesser extent.

With apologies to my Conservative colleagues who do not take these statistics seriously or who think the figures are not accurate. Reading on:

[Translation] It must be noted that while the national crime rate has been declining constantly for 20 years, and today is at its lowest point since 1973, this is largely a result of the existing sentencing system, which seeks a balance between denunciation, deterrence and rehabilitation of offenders. Proportionality and individualization of sentences are fundamental values.

And that kid of decline does not just happen by itself. Obviously, it is caused by something. When I was studying law, denunciation, deterrence and rehabilitation were always the three concepts we were told about. For any crime committed, there is denunciation, there is deterrence and there is rehabilitation of offenders. And proportionality and individualization of the sentence are fundamental values. I think that out of the whole of the Barreau's brief, those are some of the most important sentences to remember. Sometimes, I get the impression that we have forgotten these extremely important concepts. They also say that [Translation] "numerous studies show that imprisonment does not reduce the incidence of crime".

That does not mean that there should be no imprisonment. I do not want to be quoted as saying I am opposed to imprisonment. I simply think that imprisonment must be justified. My career was in labour law, and when someone was dismissed, I always told the employers that it was the equivalent of the death penalty. So what the person was accused of doing had to be punished by a penalty that was proportionate to what they had done, and the person's record had to be taken into account.

The same is true in criminal law. The same concepts apply: an individual who is guilty of wrongdoing, of a crime, has to be punished on the basis of that crime. Do we need to apply deterrent effects to try to prevent it from happening again? Can the person be rehabilitated? I recall a case going back to the beginning of my career, when I did a little criminal law. It was a young person. Both the representatives of the Crown and myself agreed that if the Criminal Code were applied strictly, we would be sending that young person straight down the path of crime. The judge, the representatives of the Crown and myself therefore took steps to adapt the situation to the individual whose fate was in our hands. When it comes to minimum sentences, the problem is that everybody is treated the same way, without consideration of any factor that might be favourable just as well as unfavourable. It cuts both ways. If two people who have committed the same act appear before a judge, but one of them has committed it six times and the other only once, there has to be some logic applied.

The brief of the Barreau du Québec also says:

[Translation] Numerous studies show that imprisonment does not reduce the incidence of crime. Public Safety Canada has released the results of a study on the impact of imprisonment on recidivism by offenders who serve their sentence in prison. The conclusions are as follows: 1. For most offenders, prisons do not reduce recidivism. To argue for expanding the use of imprisonment in order to deter criminal behaviour is without empirical support. The use of imprisonment may be reserved for purposes of retribution and the selective incapacitation of society's highest risk offenders. 2. The cost implications of imprisonment need to be weighed against more cost efficient ways of decreasing offender recidivism and the responsible use of public funds. For example, even small increases in the use of incarceration can drain resources from other important public areas such as health and education. 3. Evidence from other sources suggests more effective alternatives to reducing recidivism than imprisonment. Offender treatment programs have been more effective in reducing criminal behaviour than increasing the punishment for criminal acts. More and longer minimum sentences are the figurehead of Bill C-10. The Barreau would note the glaring disparity between real needs in terms of penalizing offenders and preventing crime and recidivism and the solutions in these regards proposed by the government. Moreover, and having regard to the inevitable and exorbitant costs that implementing these more coercive measures will generate, victims of crime are again being ignored.

This is something that has really troubled me throughout the analysis of Bill C-10, whether on second reading or now here in committee. My Conservative colleagues talk a lot, and rightly so, about victims. However, I see nothing in this bill other than the possibility of having a little more impact and visibility when it comes time to consider the criminal's sentence. That is all I see.

Is this bill going to solve the problems for victims? I have had an opportunity to speak with some of the victims who testified before the committee.

When I was in practice, people who had been fired came to my office. When they said how they wanted to get very large amounts of money, I always told them that no amount of money would ever satisfy them or make up for what they had been through. That is true when it comes to victims, and they agree with me. There will never be a sentence that will satisfy someone, particularly in the cases we have heard, where heinous crimes have been committed.

Do we want a sentence to be imposed in order to provide personal satisfaction for someone else? Do we want to do it so that society will say that the offender is a disgusting person? Will we want society to hit them over the head and damn the consequences, as long as society feels better? I think we have to get past that way of looking at things.

It is all very well to look tough. It is all very well to look as if you care about civil society and to say that things will be safer because we are getting tough with criminals. But if what we are doing with our criminals does not solve the crime problem, society is not going to come out of this situation looking any better.

I encourage you to read the brief of the Barreau du Québec again. In the section [Translation] "Principles of justice in issue", it says, concerning minimum sentences and judicial discretion:

[Translation] Section 718.1 of the Criminal Code specifically states that it is a fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

This is the basic premise when it comes to sentencing. It could not be clearer.

The Barreau du Québec also says in its brief:

[Translation] On that point, judicial discretion alone provides the means for complying with and giving full effect to the principle of proportionality and individualization of the sentence, and ultimately to criminal justice in general. Although it is essential that offenders be accountable for their acts, judicial discretion alone provides the means for weighing the various principles of sentencing, and thus imposing a fair penalty that takes into account all the circumstances and the offender's real degree of responsibility.

At one time, during a television broadcast, I had an opportunity to debate Senator Pierre-Hugues Boisvenu. His answer to a question put to him made it clear that it was all based on the fact that the government does not trust the judiciary. And yet, as even the people on the Supreme Court said, it is important that the judge, who is not on the side of either party, and who hears the facts of the case, who hears the defence and the Crown, be allowed to continue to enjoy the advantage of being a trial judge, with the power to use all of the options available to them.

I could talk about this at great length. I simply want to remind this committee that it seems to me that it would have been our role as legislators to focus our attention to the documents provided by the government, to hear all these speeches and to see all these red lights warning us that the stated goals will not be achieved in any way with what has been put on the table by the Conservative government. With the costs associated with this, we are creating the same system the Americans are trying to get away from, when they are no longer even able to pay for it and they are up to their necks in debt. Consider, for example, the women's prison population. These women who are in detention centres already do not have a lot of room. Are we going to devote all our time to building prisons, knowing full well that this will not solve the problems? I have a bit of a problem with this.

I am horrified to think that someday we might be saying we told them so. Unfortunately, I have the impression that this is in fact what is going to happen when it comes to this bill.

This is not a matter of being soft. It is understanding how the system works and, as the people from the Barreau said, foreseeing the possibility that people will plead guilty to offences when they should not. No one thought about that. There will be cases for which there should be a trial, but people will prefer to plead guilty to a lesser offence rather than end up with some of the charges that will be laid against them that will mean minimum sentences. I cannot call that a system where everyone has the right to a trial, to the presumption of innocence. It is not a fair system where all of the factors are heard before rendering a verdict and passing sentence.

I know that my colleagues also have things to say on the subject, so I will say no more for the moment.

7:55 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Madam Boivin.

Mr. Rathgeber.

7:55 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Mr. Chair, it's certainly a delight for me to contribute to the debate on Bill C-10, and specifically on the clauses that are under consideration dealing with minimum mandatory sentences.

I listened quite intently to the comments of my friends, Mr. Harris and Ms. Boivin. Of course, I disagree with their assessment on minimum mandatory sentences, specifically their suggestion—or I would suggest, accusation—that they would somehow lead to arbitrariness and unjust conclusions and sentences. I would suggest—and for those Canadians who are still watching this debate—it is quite the opposite.

If you'll indulge me for a couple of moments, I want to quote from a decision of the highest court in Alberta. As the members on this committee know, I too am a lawyer. I practised in the law courts of Alberta for perhaps not quite as long as Mr. Harris did in the courts of the Maritimes, but for a considerable period of time.

In any event, the Chief Justice of Alberta, in a decision released in 2010, Regina v. Mr. Arcand, in a very lengthy judgment talked about the principles of sentencing. I will only refer to the facts of this case very briefly to give the members of the committee some background, but the individual was convicted of a sexual assault, and not a minor sexual assault. It was what the former Criminal Code would have referred to as rape. In fact, the victim in this case was a second cousin of the accused. She was passed out from alcohol intoxication when her second cousin sexually assaulted her. The trial judge sentenced Mr. Arcand to a period of three months incarceration to be served intermittently on weekends.

With that background I want to briefly, if the committee will indulge me, read three or four paragraphs from this court of appeal decision. I think its very elucidating in the way the jurists themselves feel about ranges, starting points, and the principles of sentencing. I think it will refute Mr. Harris's concern about arbitrariness and Ms. Boivin's concerns about unfair results.

It's a very well-written judgment. I encourage members to read it if they have time. I will only read a couple of pages.

We must face up to five sentencing truths. First, it is notorious amongst judges, of whom there are now approximately 2,100 in this country at three court levels, that one of the most controversial subjects, both in theory and practical application, is sentencing. That takes us to the second truth. The proposition that if judges knew the facts of a given case, they would all agree, or substantially agree on the result, is simply not so. The third truth. Judges are not the only ones who know truths one and two, and thus judge shopping is alive and well in Canada–and fighting hard to stay that way. All lead inescapably to the fourth truth. Without reasonable uniformity of approach to sentencing amongst trial and appellate judges in Canada, many of the sentencing objectives and principles prescribed in the Code are not attainable. This makes the search for just sanctions at best a lottery, and at worst a myth. Pretending otherwise obscures the need for Canadian courts to do what Parliament has asked: minimize unjustified disparity in sentencing while maintaining flexibility. The final truth. If the courts do not act to vindicate the promises of the law, and public confidence diminishes, then Parliament will.

That is where we are. Public confidence in the criminal justice system has been weakened, if not shaken—I would suggest significantly so. There is considerable disparity in sentencing from jurisdiction to jurisdiction—and even within a province like Alberta, from region to region. That deficiency, with the disparity within sentencing and the public's lack of confidence in it, brings us to the need to give some guidance to the courts on appropriateness.

I would like to continue with just a couple of phrases more from the Chief Justice of Alberta, the Honourable Catherine A. Fraser. She said:

Such disparities undermine the public's trust that the criminal justice system, and the exercise of state power that it involves, will treat people fairly and equally. They also breed disrespect for the law.

With respect to the whole issue of minimum mandatory sentences and starting point sentencing, the court of appeal says, quoting Chief Justice Lane in two appeal courts in England and Wales, “We are not aiming at uniformity of sentence; that would be impossible. We are aiming at uniformity of approach.” And “This court has a duty to offer guidance in the form of a statement of typical cases and starting-points.”

In a recent judgment, Justice Fraser opines that there is a need for starting points or minimum mandatory sentences to prevent the very things that Mr. Harris talked about—arbitrariness, randomness. There has to be some consistency if the public is going to have confidence in the criminal justice system. Justice Fraser tells us:

Starting point sentencing does not fetter judicial discretion but ensures that its exercise is based on proper factors....

In summary, starting point sentencing accords with the proportionality principle. It is hostile to rigidity and actively embraces the aim of a proportional sentence fit for the offence and offender. The argument that it unreasonably confines “judicial discretion” is misplaced. Every process of reasoning must start somewhere and it needs acceptable standard reference points along the way. Starting point sentencing is not only loyal to Parliament’s will—and the governing proportionality principle it has mandated—but antithetical to randomness and arbitrariness, the polar opposite of judicial decision-making.

With respect to this whole issue of minimum mandatory sentences, I would submit that when you have a criminal justice system where the sentencing is so disparate as to be erratic and almost random, Parliament has a duty to act, to give some guidelines to the trial judges and the appellate judges on what the appropriate starting point is. It maintains flexibility, Mr. Harris, because a minimum mandatory sentence is much different from a mandatory sentence.

There are some mandatory sentences in the Criminal Code—the obvious one is first-degree murder. There is one sentence and one sentence only: life imprisonment without eligibility for parole for 25 years. But that is a rarity.

The amendments to the Controlled Drugs and Substances Act propose to create a starting point. Judges still have flexibility to go up from the starting point, but the starting point creates a standard that Parliament has determined is fitting for a sentence for that severity.

I am hoping that my friends on the opposite side of the table will accept that although they have well-articulated arguments in favour of their position, there are equally compelling arguments on the other side of the debate. We see a huge sentencing disparity from region to region in this country, which leads to the same results that they are arguing against—arbitrariness and injustice. We see cases where judges, for whatever reason, have passed sentences that cry out for guidance, for a starting point, while maintaining flexibility.

Thank you.

8:05 p.m.

Conservative

The Chair Conservative Dave MacKenzie

Thank you, Mr. Rathgeber.

Mr. Seeback.