Evidence of meeting #5 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 c-10.
A recording is available from Parliament.
9:20 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
I want to address a comment that was made by Mr. Gottardi, who said that there has been little previous review and that this is undemocratic.
Mr. Gottardi, were you aware that former Bill C-4, Bill C-5, Bill C-16, Bill C-39, Bill C-23B, Bill C-54, Bill S-7, Bill S-10, and Bill C-56, which are the primary components of this legislation, had 49 days of debate in the House of Commons, 200 speakers, 45 committee meetings, and 123 hours of committee study with 295 witnesses who appeared?
Can you square that circle for me, to say how there has been very little study of this legislation?
9:25 a.m.
Vice-Chair, National Criminal Justice Section, Canadian Bar Association
Yes, I am aware that some of these bills have been considered before, in the House and by committee. But there are significant component parts of the bill that have had no opportunity for consultation.
The bill that my colleague Professor Jackson has focused on has had little or no analysis, and it represents a fundamental sea change in policy for Canada in terms of how we as Canadians are going to deal with our offenders and of how they are treated inside our corrective institutions and of how they are better prepared to be released back into our communities.
I also recognize that bills such as Bill C-4, dealing with youth criminal justice, have had extensive consultation. Yet many of the recommendations for amendments we have not seen implemented in Bill C-10.
And the amendments that were made were added in and not specifically drawn to our attention. We had to sift through these bills to find out what had changed, only to discover that the bail regime in the Youth Criminal Justice Act is set to be completely overhauled with no reference to the bail regime that is currently in the Criminal Code. We're going to see more and more at risk youth detained before their trials.
We also see changes in the Youth Criminal Justice Act amendments that will remove the high standard of “beyond reasonable doubt” that was put in place to ensure that young offenders are not subjected, improperly and contrary to the constitutional imperatives found by the Supreme Court of Canada, to an adult sentence and to publication of their names, with the stigmatization and labelization that happens thereby.
We had to sift through to find those changes so that we could come to try to make comment to this committee. We have tried to do this in our 100-page written material, which I commend to all of you and hope you will take the time to review carefully.
9:25 a.m.
Conservative
Kyle Seeback Conservative Brampton West, ON
Sharon, I want to thank you for coming today. I know it must be exceptionally difficult to come and to have to speak about things especially reflecting on your own personal appearance.
I want to ask you whether you think that the measures in Bill C-10, notably the ones establishing rights of victims to make a statement at parole hearings and allowing for notification of transfers, will help provide victims some degree of closure or some degree of satisfaction in the process.
9:25 a.m.
President, Victims of Violence
Yes, I do.
In response to what you just talked about, I must comment that there is no such thing as closure; however, there is satisfaction. Victims just have to learn a different way to live and to cope, but there is no such thing as closure.
I would also like to say that it has been most confusing. There has been so much controversy in relation to this bill and how it affects victims of crime. I must say that, over and above Part III in relation to changes to the CCRA, there are many victims of crime who definitely are concerned about the sentencing. Victims are throughout every part of this bill, because it is talking about the serious and violent offenders.
I can only mention, in my own particular case, my saying that had we had the legislation that is going to be forthcoming, hopefully in this bill, in relation to my own son—there had been numerous charges of sexual assault, rape, buggery against the man who murdered my son—
9:25 a.m.
Conservative
The Chair Conservative Dave MacKenzie
I'm sorry; we'll have to end it there. Maybe somebody else can carry on.
Ms. Boivin.
9:25 a.m.
NDP
Françoise Boivin NDP Gatineau, QC
Thank you, Mr. Chair.
First, I would like to thank the witnesses for being here this morning. Their presence is very useful to us.
This is the first time I have studied Bill C-10 and its various components. As with my colleague Jack Harris, I find it is unfortunate to have to cut you off halfway through a sentence. I would love to ask you so many questions.
Ms. Rosenfeldt and Ms. O'Sullivan, I appreciate the work you do. I believe that taking care of victims is a very important component in the criminal justice system. We would not want anyone to think that the people sitting on this side of the room do not care about victims.
We are trying to find the best system possible, one which strikes a balance, that is, which respects victims' rights, which also protects people—as indicated in the title of this bill—and makes sure that people who commit crimes have a chance to redeem themselves and become part of society again, if at all possible, as good citizens. It is not always easy to strike a balance in this type of situation. Nothing is black and white.
I would now like to address Professor Doob. One of my basic fears concerning this bill relates to minimum mandatory sentences. Professor, I am familiar enough with the system to realize that, sometimes, we want to avoid a certain result which everybody thinks is completely unthinkable, since it does not apply to the case they are involved with. When I studied criminal law, we were taught that every case was unique. But here, the opposite seems to be true, namely that a sentence is handed down regardless of the offence that was committed.
I would like to know what you think about this. Is discretion being passed from judges to crown prosecutors, who will have to decide under which section an indictment will be laid against a person, given that they already see what sentence will be handed down regardless of the circumstances? These indictments might therefore not be completely justified. So is this not a transfer of discretion, which now lies with the judge, to crown prosecutors? What is your view on this matter?
I now have a question for the representatives of the Canadian Bar, whom I would like to congratulate. Last evening, I read your brief from start to finish, and I would encourage my colleagues to do the same. It is complete. You have done an extremely in-depth analysis. I would like you to talk about the problem with the provision dealing with pardons.
Even in the case of a summary conviction offence, a person would have to wait even longer before applying for a pardon. I don't know whether this is the right way to reach the objective. This would prevent people from finding work again and becoming good citizens again. How are we going to make our streets safer if we make it more difficult for people who might not necessarily have committed a serious offence, to reintegrate society?
Those are my two questions.
9:30 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
Let's start with the issue of the mandatory minimum sentences. It seems to me that even though the government is admitting they made a mistake, or carried over a mistake from the previous bill without correcting it, and are now saying that the mandatory minimum sentence of nine months only applies to people who have six marijuana plants, organized crime, grow-ops with six marijuana plants, the difficulty is that it clearly ends up with a disproportionate sentence. No matter how we look at that, if you look at the range of sentences that are available in Canada, very few people are going to say that my hypothetical student with six plants or one plant--it doesn't really matter--is now deserving of nine months. So what will happen or can happen is that deals can be made.
Another way to deal with the problem of sentencing would be to have reasonable sentences without mandatory minimums, and some form of guidelines. Canada rejected the idea of sentencing guidelines more than 25 years ago, but that doesn't mean that the proposal for guidelines that was made in the 1980s is the only one.
Other jurisdictions have looked to ways in which they can structure sentences in a way that makes sentences more coherent and more fair when you look at sentences across the board, so that they have a sentencing system based on proportionality. Mandatory minimum penalties almost certainly violate or force the violation of the principle of proportionality. As you implied by your question, they also give over the power to sentence to the prosecutor, so that the prosecutor can in effect extort agreements to plead guilty by saying that certain elements won't be proved--in this case, for example, that it's a rented apartment.
9:35 a.m.
Conservative
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you, Mr. Chair.
Thank you to all the witnesses for your attendance here this morning and for your interesting and conflicting views.
Following up, Professor Doob, on the question asked by Ms. Boivin, you seem very concerned that individuals who, in your view, ought not to receive minimum mandatory sentences might, under this legislation--and you've cited several examples, including the roommates who share two or three marijuana plants.
Are your fears not alleviated by the addition of section 8, which requires the prosecutor to serve notice on the accused in order to seek a mandatory minimum sentence?
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
The simple answer is no. The prosecutor has to demonstrate, has to give notice of these things before a plea. We've had exactly the same thing in proving the second impaired driving. We've had that for years, for decades. No, that doesn't.
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But if the prosecutor doesn't serve the notice or withdraws the notice, the minimum mandatory sentences do not apply. The act is quite clear on that, sir.
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
Yes, and what we're doing then is we're turning the sentencing function over to the prosecutors rather than leaving it with the judges. It seems to me that what we really want is honesty and transparency in sentencing so that the facts of the case are the facts of the case.
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
But at the very least you'll agree with me that in the appropriate circumstance the minimum mandatory sentences need not apply. I agree with you the discretion is with the crown.
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
Well, of course the prosecutor has the power not to demonstrate that certain conditions hold, but the point of a mandatory minimum sentence is that Parliament in the year 2011 is saying that some small number of marijuana plants, for example, is deserving of a six- or nine-month minimum sentence. That's what Parliament's intent is. If Parliament didn't have that intent, Parliament presumably would not impose a mandatory minimum penalty. Other kinds of guidance are possible to Parliament, including the guidance of, for example, a presumptive sentence. There are other things that are possible.
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Well, we'll leave it there.
You are aware that possession without more does not constitute a minimum mandatory sentence.
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
Excuse me?
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Possession has to be for the purposes, you are aware of that?
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
Possession for the purpose of trafficking, but I would suggest to you--
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
We'll have to leave it there. I just wanted to clarify.
9:35 a.m.
Professor, Centre of Criminology, University of Toronto, As an Individual
I would suggest that most use of marijuana includes trafficking as it's defined by the act.
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
Thank you.
Professor Jackson, similar to my friend Mr. Harris, I too watched CBC last night, and I think it was an interesting piece, but the piece was primarily about the success of drug treatment courts in the state of Texas. And you will agree with me that drug treatment courts do currently operate in Canada, right here in Ottawa and certainly in my city of Edmonton and elsewhere.
9:35 a.m.
Member, Committee on Imprisonment and Release, National Criminal Justice Section, Canadian Bar Association
That's right.
9:35 a.m.
Conservative
Brent Rathgeber Conservative Edmonton—St. Albert, AB
And you'll further agree that this act actually expands the use of drug treatment courts, allows a sentence to be delayed pending completion of a drug treatment court, and in fact allows a court to not impose a minimum mandatory sentence when the offender has successfully completed drug treatment. Are you aware of all of that?
