Evidence of meeting #39 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 sentence.
A recording is available from Parliament.
Conservative
The Chair Conservative Dave MacKenzie
We'll call the meeting to order. This is meeting number 39 of the Standing Committee on Justice and Human Rights. Pursuant to the order of reference of Wednesday, February 29, 2012, we are studying Bill C-299, an act to amend the Criminal code (kidnapping of young person).
Appearing as a witness before us today is Michael Spratt from the Canadian Civil Liberties Association. Sir, as usual, we have an opportunity for you, if you wish, to make an opening address, and then we'll begin our panel.
Michael Spratt Lawyer, Canadian Civil Liberties Association
Thank you very much.
I should first say that it's a pleasure to be here. It's always a pleasure to address the honourable members of the committee.
My name is Michael Spratt. I'm a criminal lawyer. I practise solely criminal law here in Ottawa, Ontario. I'm with the firm Webber Schroeder Goldstein Abergel. I've appeared at all levels of court, representing all types of different offenders and offences.
Today I appear before you as a representative of the Canadian Civil Liberties Association, CCLA, which of course is a national organization comprising thousands of members from all walks of life, not just lawyers.
The CCLA was constituted to promote respect for and observance of fundamental rights, to promote individual freedom, and to protect that freedom from unreasonable invasion. It's our position that any policy or any legislation must be the least intrusive possible and must be supported by evidence. To that end, it comes as no surprise that we object to some of the measures in Bill C-299, not because we disagree with the purpose of the bill, but because it employs the failed policy of mandatory minimum sentences that simply will not accomplish the goals of the bill. Mandatory minimum sentences are not supported by the evidence, and they don't come close to effecting the very policy goals they seek to implement.
Our first main concern with the use of mandatory minimum sentences won't be a surprise. We've made submissions, and other groups have made submissions, on mandatory minimum sentences. Our concern is that they run the risk of being unconstitutional and of raising situations that offend the charter.
Of course, sentences must be carefully tailored to both the offender and the offence. This is an historic and long-standing principle of our common law criminal justice system. Mandatory minimum sentences undermine this principle due to their inflexible nature. Injustice may not be the intent of legislation that employs mandatory minimum sentences, but it is quite often the result.
Specifically, in looking at this piece of legislation, which deals with kidnapping of children under the age of 16, if one reviews the case law, it becomes quite clear very quickly that in general most sentences imposed are in excess of five years, the minimum sentence called for in this bill. However, the elimination of judicial discretion can leave open reasonable hypothetical cases that may call for a sentence of less than five years. Because of the inflexible nature of mandatory minimum sentences, our justice system won't be afforded the discretion to deal with those cases.
To keep things brief now, I'm sure we can have a discussion during the question period about what some of those cases may be, and I'd be happy to engage in that conversation.
The bottom line is that there are no flexibilities in mandatory minimum sentence legislation to deal with any unusual cases or mitigating facts that may call for a sentence that is less than the minimum sentence.
Judges are in the best place to impose just sentences. They, of course, are familiar with the facts, familiar with the offender, familiar with the offence, and familiar with the community in which they sit. In Canada, we are blessed with a well-educated and competent judiciary, a judiciary that is incorruptible. In fact, it is a system we have espoused around the world in helping emerging democracies set up their justice systems.
When we remove discretion from judges, it's not just that it can result in unjust and inflexible sentences. I can speak about some of the practical implications of the removal of that discretion.
The first is that discretion is not really removed from the system; it's just shifted. The discretion is shifted to crown attorneys and police forces. Of course, unlike judicial discretion, this discretion is not reviewable and it's not transparent. And it can result in other problems.
Ironically, the problem that can result is twofold.
First, the shift in discretion can result in, as I said, these non-reviewable, discretion-making decisions that can influence or induce pleas from people who may not be guilty of the charge.
Second, when faced with a mandatory minimum sentence and another part of the Criminal Code that may not have a mandatory minimum sentence, there often is a perverse incentive to resolve the charge based on the section of the code that doesn't have a mandatory minimum.
I say it's ironic because at the same time, mandatory minimum sentences also result in an increased number of trials. If the result is all but guaranteed, if guilt is assured, there is very little incentive to resolve early when you know you're facing a mandatory minimum sentence. This of course increases the drain on our court resources, brings witnesses to court, and, in this case, young witnesses whom we may not wish to go through the process of testifying.
Mandatory minimum sentences also have a disproportionate impact on aboriginal groups, in light of the Supreme Court's decision of Gladue and, recently, Ipeelee.
Most importantly—and I say that we agree with the goals of the legislation but not with the mechanism by which those goals are implemented—the evidence is clear that mandatory minimum sentences do not deter offenders. They do not stop the offence from happening, and they don't afford an increased level of protection.
There is an illogical gap between the purposes and the mechanism, a gap that should be bridged by evidence. In the case of mandatory minimum sentences, that evidence shows the contrary—minimum sentences do not have an effect on deterrence.
I would urge this committee to review all the materials. I can speak to some of the practical implications. I can speak to some of the evidence, but there are others who can speak to the criminological evidence. I would urge this committee to review the November 2010 report of the Canadian Centre for Policy Alternatives.
I would urge this committee to look south of the border. Marc Mauer, the executive director of The Sentencing Project, has testified before committees before. Specifically, I would commend you to his testimony of October 28, 2009, before the Senate committee.
I would ask this committee to reflect on the February 6, 2011, letter that was drafted and signed by over 500 leading voices and experts in this area. That dealt specifically with Bill S-10, but it also touched on the mandatory minimum sentence issue.
We have some very eminent criminologists who are close at hand, Anthony Doob, and the studies and the evidence that he can point the committee to.
The bottom line is that mandatory minimum sentences are not effective. They're a simple way of looking at a complex problem and, in my submission, ultimately a myopic way of looking at that problem. Mandatory minimum sentences, and I'm sure it will be pointed out to me, exist in the code, have been introduced by different governments, but this is not an excuse to continue a failed policy that is not justified on the evidence.
If the intent of this bill is to decrease the kidnapping of young people, to protect young people, the evidence shows that mandatory minimum sentences, I submit, will not accomplish that goal. In turn, they will bring the practical side effects that I can testify about: the increase in court time; the perverse incentives; the shift in discretion from judges to crowns and police; and the elimination of judicial discretion, a pillar of our justice system.
I'll turn the floor over to whoever wants to take the first shot, I guess.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
Thank you, Mr. Spratt. That is interesting. It is never an easy issue, although the position of the NDP is clear. We have some reservations about mandatory minimum sentences, for the same reasons that you have expressed. But let's be realistic, if we look at section 279 of the Criminal Code, we can see that minimum sentences are included.
I am not sure if you are familiar with section 279 and subsequent sections on kidnapping, human trafficking, hostage taking and abduction. How can we justify that, in a case of child kidnapping, for example, such as the one in Mr. Wilks's bill, a minimum sentence is denied when there is one, for example, for a first offence, when a restricted firearm is used. In that case, it is five years.
Is the kidnapping of a child not sufficient for a minimum sentence? How do you explain the distinction made between those various offences in the Criminal Code?
Lawyer, Canadian Civil Liberties Association
Let's first be very clear. The sentence of five years for kidnapping a child will in the vast majority of cases be appropriate. If the committee reflects on prior judicial decisions, a sentence of more than five years is very common. Our point is simply that looking at this piece of legislation in isolation, the mandatory minimum sentence has the problems I've outlined. I recognize there are other mandatory minimum sentences in the code, and mandatory minimum sentences in some cases have been found to be constitutional. However, that doesn't remove the problem of the mandatory minimum sentence in this case.
It's our position that if the government wishes to change the law to deviate from one of the historic cornerstones and pillars of our justice system, it should be done based on the evidence. It's the government that wishes to change this law and it's the government that should demonstrate that mandatory minimum sentences will be effective in implementing the desired policy outcome in this piece of legislation.
Yes, kidnapping a child is bad, and, yes, kidnapping with a firearm is bad, but just because that door has been opened, I submit, it doesn't allow mandatory minimum sentences holus-bolus through the door without a careful evaluation to make sure those changes are necessary and indeed will be effective.
NDP
Françoise Boivin NDP Gatineau, QC
If I am not mistaken, the case law talks about sentences between eight to 15 years, aside from rare exceptions that can be easily explained. Am I right in saying that courts tend to opt for the higher sentence? Don't they have a tendency to choose the maximum sentence rather than the so-called minimum sentence that is supposed to have a deterrent effect?
Lawyer, Canadian Civil Liberties Association
Certainly the case law demonstrates that what some of us call the tariff for these offences is very high. Having a mandatory minimum sentence won't affect those sentencing decisions. I mean, the mandatory minimum sentence will be a starting point, as the Supreme Court said, for the best offenders and the least serious offences, which the minimum sentence will be applied to. But what we do see as well is—and we can look at cases like Smickle from the Superior Court—that when we're dealing with minimum sentences, there are quite often unique fact scenarios to which the minimum may not be applied. So we have a solution in search of a problem. That is what this legislation may be, I submit, because there isn't a problem. We don't see in the case law blatant bad offenders, who commit this offence, being sentenced very leniently.
NDP
Françoise Boivin NDP Gatineau, QC
I would like to talk about an issue that has been bothering me since we started studying this bill. For example, let’s look at subsection 279(1.1) that deals with kidnapping. A little further, it lists offences related to the kidnapping of a person under the age of 16 years, for example. I feel there is a lot of room for games between the Crown and the defence, in order to avoid enforcing the bill if it were passed as written.
Am I right? There is some confusion with this provision.
Lawyer, Canadian Civil Liberties Association
Maybe this was a wrong assumption on my part. I was under the impression that there might be an amendment contemplated already to this bill to exclude parents and perhaps other relations of the child, in order to avoid a conflict with some of the other sections.
We could have an interesting discussion about how broad that sort of exclusion should be—whether it would cover just parents, grandparents, step-parents, or just people in loco parentis. There could be conflicts between this section and the other sections of the bill. That concern could be somewhat mitigated if contemplated amendments are made. What is clear is that one could fall under the prior sections, and it could fall under this section. Crown attorneys across Canada are honourable. They do their job very well, and I count many of them as friends of mine. I have the utmost respect for them.
That leads to this problem about the shift in discretion. When the crown attorney is confronted with a mandatory minimum sentence that isn't appropriate, with an accused that can't afford to mount a lengthy and expensive constitutional challenge, there is an incentive for the crown attorney to use her prosecutorial discretion to avoid what could be a very unjust result. Of course, that's done behind closed doors. It's not reviewable. It's not transparent. Reasons aren't provided, and it doesn't give the appearance of justice being done. There are often successful constitutional challenges to the legislation, which really should be avoided. They're expensive, and they provide uncertainty in the system. Through the Criminal Code, we should be looking to avoid uncertainty.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I'm going to try to ask some questions of focus on the point you made about an evidence-based approach. Some of these questions may be inferentially answered by what you said, but I'm posing them from an evidentiary point of view.
Is there any evidence that judges give light sentences in cases of kidnapping, for example?
Liberal
Irwin Cotler Liberal Mount Royal, QC
Is there any evidence to suggest that if this law had been enacted, let's say, a decade ago that fewer children would have been kidnapped this year?
Lawyer, Canadian Civil Liberties Association
No, Anthony Doob on the university website has a great summary of criminological studies, which comes out on a quarterly basis. The preponderance of the evidence demonstrates that mandatory minimum sentences don't have any effect on deterrence.
Liberal
Irwin Cotler Liberal Mount Royal, QC
I would assume, therefore, that there is no evidence to suggest that the adoption of this law with a mandatory minimum would deter or reduce the incidence of kidnapping.
Lawyer, Canadian Civil Liberties Association
Not from the research that I've seen.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Why might someone be prosecuted under the offence of abduction rather than kidnapping? Would the changes in this legislation, particularly that of the mandatory minimum, give rise to a lesser charge being pursued more often?
Lawyer, Canadian Civil Liberties Association
I think so. We can see this in some of the other offences that have minimum sentences. Also, the offence can relate to more than one section of the Criminal Code. When you have a mandatory minimum sentence and an offence that doesn't have a mandatory minimum sentence, there is often a great deal of negotiation about which charge the crown should proceed on. That's informed by the facts of the case and by prosecutorial discretion. It may in some circumstances reduce the number of kidnapping convictions and result in more convictions for abduction or some other offence such as forcible confinement or assault.
It's not going to affect the serious cases, the cases that call for more than five years. It will affect cases that are borderline, that may not call for five years, that contain extenuating circumstances, either in the offence or the offender.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Is there any evidence that suggests that the kidnapping of young persons is not adequately denounced presently under the Criminal Code?
Liberal
Irwin Cotler Liberal Mount Royal, QC
Because you did make some reference to this in your closing comments, I'd ask you, does the legislation effectively or properly address the distinction that should be made between when the offender is a family relation or when the offender is a stranger?
Lawyer, Canadian Civil Liberties Association
Currently, no. I understand the intent is to apply only to stranger abductions, which would be an interesting point to look at, the deterrent effect of a minimum sentence as it relates to a family member and to a stranger. It might provide actually less deterrent effect when you're dealing with a stranger abduction. But a lot will turn on how broad or narrow that exception is.
Of course, some of the defences that apply to the other sections of the Criminal Code, the sort of best interests of the child exceptions.... It's unclear if they would apply to this as it's currently drafted.
Liberal
Irwin Cotler Liberal Mount Royal, QC
Is there any evidence to suggest that the age of 16 is the appropriate point of distinction? Would it maybe be preferable to take into account something like the term “age” or “vulnerability”, rather than a specific number, like 16?
Lawyer, Canadian Civil Liberties Association
A specific number has some advantages because it's less amorphous than a term like “vulnerable” or relying on some other qualitative factors. But it appears to be completely arbitrary in terms of an age. There is nothing of great import about the age of 16, except I suppose that historically you get your driver's licence at 16. I don't think you can do that anymore anyway.
This is throughout the Criminal Code. We see the age of 14, we see the age of 16, and we see the age when you move from the YCJA to adult sentences. I don't know if there are some evidence-based reasons why 16 is the age, or if there is some problem in the current case law—I didn't see any—that has that age of 16, or if it is just mirroring what is in the Criminal Code already.