Evidence of meeting #6 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.
Conservative
The Chair Conservative Dave MacKenzie
Time is a bit of the essence. I see that the panel is prepared, and we have a quorum of members, so I'd like to get started.
Welcome to the panel. I know the clerk has made it clear that there's an opportunity for a maximum of five minutes of introductory comments. The clerk has suggested that I indicate to you when you have one minute left, so that it's not a sudden stop.
We are prepared, so if the panel members wish to make their five-minute address, we can start with Mr. MacPherson.
Donald MacPherson Director, Canadian Drug Policy Coalition
Thank you very much.
It's a pleasure to be here, and I'd like to thank the committee for inviting me to speak today. It's an honour to appear before you.
My name is Donald MacPherson. I am the director of a new and emerging national organization, the Canadian Drug Policy Coalition. I will keep my comments to those sections of Bill C-10 that are directly or indirectly related to drug policy issues.
The coalition is made up of civil society organizations from across the country that work to reduce harms from substance use and the drug trade in Canada. It includes representatives from the research community, front-line service providers, groups representing people who use drugs, parents, youth, academics, law enforcement, public health professionals, and others.
Our vision is to achieve a Canada that is safe, healthy, and just, in which drug policy and legislation as well as related institutional practice are based on evidence, human rights, social inclusion, and public health.
We applaud the government for making the health and safety of communities a high priority. We are concerned, however, that the government has it quite wrong in thinking that the proposed legislation will achieve these health and safety goals for Canadians.
We feel that this legislation will have no impact on community safety. In fact, it is more likely to create a decrease in community safety as: one, more individuals are incarcerated for longer periods of time and then return to the community with skills and social networks acquired in prison; two, organized crime adapts to the provisions in the legislation by protecting those at the top and sacrificing those lower down the ladder, as they have the resources to do; three, in the case of cannabis growers and dealers, the smaller, local suppliers will be more vulnerable to this legislation, and this in turn will deliver increased market share to the professional organized criminal gangs, increasing their profits and capacity to diversify and elude law enforcement—anyone who has spent time in the interior of British Columbia can tell you this; and four, increased law enforcement against drug markets leads to increased violence and a reduction of safety for Canadian communities.
To provide some context, the recent Health Canada survey in Canada found that 344,000 people in B.C. admitted to smoking cannabis in the past year. Considering an average expenditure of $1,125 per year by this group, this means that $390 million a year is going into the coffers of organized criminals and unregulated dealers from domestic demand in B.C. alone.
I'm going to read a couple of excerpts from an RCMP briefing note, which I have attached to the package I handed the clerk.
The overwhelming majority of crime groups in British Columbia are involved in some aspect of the drug trade, principally trafficking and distribution and activities related to drug trafficking including acts of violence, extortion, and intimidation. In some cases, the profits generated have enabled some criminal organizations to engage in other criminal activities, and [this] has allowed several of them to expand into other criminal enterprises that may have previously been well beyond their reach.
Concerning the outlook for violence:
There are signs of continued levels of influence, inter-connectivity and/or linkages between all the organized crime groups identified in British Columbia and with the criminal groups in other provinces and countries.
The expansion of organized crime groups/gangs to more rural areas of the province is expected to continue, because drug turf takeovers have been, on the whole, remarkably successful and there appear to have been only several rather short-lived clashes with the resident groups.
An overall decreased availability and increased price of cocaine, as well as internal and external disputes, retaliation for drug rips and debts, and competition for drug supply and turf, have been contributing factors to the spate of gang-related violence witnessed in metro Vancouver in recent years. On the whole, these incidents have been committed by, within and/or against the lower level associate ranks and there has been little effect on the criminal operations of upper echelon and higher-ranking organized crime groups.
The officer concludes with this statement:
Ironically, the criminal operations of the upper echelon players have not been...affected by the number of incidents of gang violence. On the whole, rivalry between upper echelon criminal organizations has not materialized and they continue to co-exist, overall, rather peaceably.
I'll conclude my statement by just saying that in the coming years the Canadian Drug Policy Coalition will be moving beyond the prohibition on discussing alternatives to our failed drug policies.
It is clear that we, as a society, are mixed up and do not have a clear understanding of the difference between harms that accrue from drugs and harms that arise from the policies we put in place to try to manage or control these substances.
Convening dialogue and discussion on alternatives to long-held beliefs and practices takes leadership and courage. In the best of all possible worlds, that leadership would also come from our elected leaders. It is the responsibility of parliamentarians—
Conservative
The Chair Conservative Dave MacKenzie
Thank you, Mr. MacPherson. We're a bit over.
I would also indicate that you said you had a document. We can't circulate it to the committee because it's not in both official languages.
And your time is up, sorry.
Jamie Chaffe President, Canadian Association of Crown Counsel
The Canadian Association is comprised of those organizations of crown prosecutors and civil lawyers and notaries employed by the crown in the federal government and each of the provinces across the country. These member organizations represent the front-line prosecutors and civil government lawyers in each province and within the Federal Prosecution Service in the Department of Justice. The CACC represents the interests of these prosecutors to their respective ministries of justice and the justice system nationally.
We're delighted to have been invited to speak to this committee.
When the CACC comments on a proposed piece of legislation, it does so from an apolitical, non-partisan perspective. As befits the quasi-judicial role of crown attorneys in the criminal justice system, we do not comment on whether a particular proposed change of the law reflects good or bad policy, but we strive to provide input with respect to the likely systemic impact of the legislation on the ground from the perspective of a front-line prosecutor. We're strongly of the view that this perspective is critical to your work in making effective criminal law.
In preparation for these submissions, each provincial and federal crown attorneys' association was canvassed regarding their views regarding the systemic impact of Bill C-10. Due to time constraints, we've chosen only to comment on the legislation that most directly impacts on front-line prosecutors, the Criminal Code of Canada, the CDSA, and the Youth Court Justice Act.
Let me begin by discussing very briefly the context in the criminal justice system for these amendments.
Currently across the country, the criminal justice infrastructure particularly, but not limited to its most populous communities in the Canadian north, is critically overburdened. Indeed, it's a common necessity in these jurisdictions to prioritize cases for the limited capacity of the justice system and to triage the rest out of the court system by way of diversion programs, plea bargaining, and withdrawal of charges. As it is currently resourced, the criminal justice system cannot fully and consistently carry into effect many of our criminal laws. That's the context for these amendments.
Regarding the amendments to the Criminal Code, as you know, when implemented, Bill C-10 will make the following changes to the Criminal Code: there'll be an increase to the existing mandatory and minimum sentences; there'll be new mandatory minimum sentences for certain charges; new offences will be created; there'll be an expansion of certain prohibition orders; and there'll be a restriction with respect to the availability of conditional sentence for many charges.
We expect that the systemic impact on the ground with respect to these changes will be an increase of overall workload, substantially because the trial rate will increase. In the absence of significant tangible new resources to support this new workload, these changes will exacerbate what is already a dangerous situation of work overload.
Regarding the proposed changes to the Youth Court Justice Act, the youth courts created by the YCJA have traditionally had a lower trial rate than adult courts, generally speaking. The proposed changes to the YCJA will have a significant impact on that trial rate and the workload of these courts.
As you know, these amendments include altering the pretrial detention provisions, the youth sentencing provisions, implementing a procedure for lifting restrictions of publication of young offenders' identities, and altering the adult sentencing regime. Overall, we're of the view that the amendments to the YCJA proposed....
One minute. Wow, time flies.
Overall there will be more bail hearings; there will be more trials and a higher level of workload.
With respect to the proposed changes to the CDSA, this legislation will also increase the number of bail hearings with respect to the charges that are impacted by the reverse onus provisions. The mandatory minimum sentences will increase the trial rate as well. There'll be fewer guilty pleas, more trials. Additionally, we anticipate there'll be more work for appeal counsel, as all of these provisions will likely be challenged constitutionally.
The lion's share of the new workload that will be created by the amendments of Bill C-10 to the Criminal Code and the YCJA is going to be borne by the provincial criminal justice system.
We have heard no commitment by these provinces regarding tangible support for this new legislation or the previously enacted mandatory minimum sentences legislation by the federal government.
Thank you.
Conservative
The Chair Conservative Dave MacKenzie
The light flashing is not an alarm system. It's calling the House to order. It doesn't mean we have to leave.
Ms. Harvey.
Yvonne Harvey Chair, Canadian Parents of Murdered Children and Survivors of Homicide Victims Inc.
Good morning, Mr. Chairman and distinguished guests.
Thank you for giving me the opportunity to address the committee this morning. My name is Yvonne Harvey and I am the chair and the co-founder of the Canadian Parents of Murdered Children and Survivors of Homicide Victims, which is a national charitable organization first formed in 2009 to provide ongoing emotional support and assistance to survivors of homicide victims, while promoting public awareness and education.
I am here today in support of Bill C-10 in its entirely. However, my comments will touch only on the components with which I am most familiar.
As a survivor of a homicide victim, I have had to learn, much to my chagrin, how much Canada's laws need to be strengthened to protect its citizens and to instill a renewed sense of confidence in public safety.
Regarding the portion of Bill C-10 that deals with the former Bill C-39, the Ending Early Release for Criminals and Increasing Offender Accountability Act, the amendment to the Corrections and Conditional Release Act to enshrine victim participation in conditional release board hearings and keep victims better informed about the behaviour and the handling of offenders, I view these measures as effective steps forward.
The establishment and the enforcement of offender accountability identifies and recognizes the needs of victims by adding a requirement in law to complete a correctional plan for each offender that clearly identifies behavioural expectations, objectives for a rehabilitation program, and completion of obligations as ordered by the court for victim restitution.
Just as offenders require rehabilitation to re-enter society, the victims of crime need rehabilitation to continue with their lives in a productive manner with a sense of hope and safety. These enforceable measures will provide a better experience for both the offender and the victim.
In conclusion, I would be remiss if I did not comment on the extensive negative opinions that we have been hearing and reading in the media by those who oppose Bill C-10 because of the increased costs that will be associated with greater prison capacity to accommodate this new legislation.
There is generally an important piece of the equation missing in these opinions, and that piece deals not only with the tangible costs shouldered by victims of crime, but also with the intangible costs.
Victims of crime bear a huge financial burden, both as taxpayers and as victims. For the sake of fairness, let us set aside the intangible costs for now and just focus on the actual dollar costs borne by victims on a personal level and as Canadian taxpayers.
For the purpose of examining a case, I will take the liberty of using my own experience as a victim of crime. In January 2007, my only child, Chrissy Nadine Predham, was viciously attacked in her home and brutally murdered in St. John's, Newfoundland. She was 28 years old and had a 15-month-old baby girl.
Since that event, my husband Gary and I have incurred travel expenses, funeral expenses, estate expenses, loss-of-income expenses, and legal expenses that have climbed to well over $75,000. Newfoundland does not provide any victim services for me as a resident of Ontario and does not have a criminal injuries compensation board. Therefore, we have had to pay all our expenses out of our own resources.
The trial is to start within the next few months, which will be a full five years since the date of Chrissy's murder. It is estimated to run for 16 weeks. This will result in more travel and lodging expenses, loss of income for me, and other miscellaneous expenses.
Yes, this new legislation will have a price tag, but so does the cost of crime. The cost of crime, ladies and gentlemen, not only consists of taxpayer dollars, but also the loss of human life, which is immeasurable. Equally immeasurable is the loss of family, the loss of law and order, and the loss of faith in the criminal justice system and in our government's ability to protect society.
For those who disagree with Bill C-10 as it relates to the cost of expansion of prison capacity, I would suggest that you factor all costs into the equation. The real cost of crime in Canada far outweighs the cost of new prisons. We all want safe streets and communities in which to raise our families. The benefit of that is immeasurable.
Finally, this bill has been referred to as not pertaining to victims' issues. I beg to differ. For every offender there is a victim or victims. In my opinion, historically, we as victims of crime have been nothing more than collateral damage in the eyes of the Canadian criminal justice system and corrections system. This is no longer acceptable.
Thank you.
October 20th, 2011 / 10:05 a.m.
Conservative
Gilles Ouimet Former President, Barreau du Québec
I'll be addressing the committee in French.
On behalf of the Barreau du Québec, I would like to thank you for welcoming us. Joining me are Mr. Battista, president of our committee on criminal law, and Dominique Trahan, president of the committee on youth law. For your information, it is important to know that these two committees of the Barreau, which were involved in drafting our brief, are made up of both prosecutors and defence lawyers. The committee members represent the state, the victims and the accused alike.
I would like to remind the public that the primary mission of the Barreau du Québec is to protect the public under the law. So the Barreau does not take the side of any particular party in the criminal justice system. As part of its mission of protecting the public, the Barreau is sharing its unbiased view on the bills currently being studied in Parliament.
The Québec Bar regrets the government's choice to have an omnibus bill and, moreover, to insist on making those amendments within 100 days. Unfortunately, this decision will muddle the issues and undermine our ability to determine the real needs of Canadians. Our natural tendency to contrast diverse opinions on complex topics, such as the fair and equitable treatment of victims and offenders, only leads to oversimplifying those opinions.
In passing legislation, we should not be constantly weighing the rights of victims against the rights of the accused. Canadians expect legislators and all players in the justice system, including victims groups, to work together on passing the best possible legislation that meets the real needs of our society. In light of that, the number and length of the consultations preceding the passing of a bill should not be considered or denounced as inconveniences.
The increased use and number of mandatory minimum penalties are the figurehead of Bill C-10. The bill specifically proposes the increase in certain mandatory minimum penalties that had been passed in 2005, although the true effect of those penalties is not actually known yet. At the Québec Bar we definitely believe that mandatory minimum penalties make our criminal justice system more complex and less effective, while raising the possibility of miscarriages of justice.
One of the fundamental principles of our criminal justice system is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Only judicial discretion can adequately balance the various principles of sentencing and the circumstances of an offence, and can, as a result, impose a just sentence.
On the issue of minimum penalties and their effect, the Supreme Court of Canada has unanimously acknowledged the following:
Even if it can be argued that harsh, unfit sentences may prove to be a powerful deterrent, and therefore still serve a valid purpose, it seems to me that sentences that are unjustly severe are more likely to inspire contempt and resentment than to foster compliance with the law.
Of all the pernicious effects of mandatory minimum penalties, the most negative and harmful aspect for our society is definitely the message that is being sent to the public about their justice system and the judges.
If Parliament considers that it is necessary to restrict courts from imposing a just sentence to such an extent, the inevitable conclusion is that we cannot trust judges to get the job done. Is it really necessary to show the devastating effect of this powerful message in a free and democratic society like ours, founded on the rule of law?
In short, it is unfortunate to see how isolated anecdotes continue to be used to justify mandatory minimum penalties. This was clearly seen in the comments made at the committee's last meeting, on October 18. The case that was discussed had to do with a judge who handed down a sentence of only 23 months to someone who had sexually assaulted a child, saying that he had spared the child's virginity. The problem is that the decision was overturned by the Court of Appeal, which passed a sentence of nearly four years. But no one mentioned that. That is exactly what appeal courts are supposed to do in our justice system.
As for the amendments proposed to the youth criminal justice system, the Barreau reiterates its concerns about Bill C-4, which makes up much of Bill C-10. In the letter of September 30, 2011, that Jean-Marc Fournier, Quebec's Minister of Justice and Attorney General, sent to Minister Nicholson regarding this bill, he criticizes the fact that the fundamental principles of youth rehabilitation and social reintegration are pushed aside. Those are preferred principles in the Quebec model because they ensure the lasting protection of society. The Barreau shares Minister Fournier's opinion; he concluded the letter by asking that the bill not be passed without considering the needs of Quebec society.
The Barreau once again stresses the importance of maintaining the specific nature of youth criminal justice, by focusing on rehabilitation as a solution to protect the public in the long term.
Former President, Barreau du Québec
We'll be happy to answer all your questions.
Conservative
The Chair Conservative Dave MacKenzie
Thank you.
Just so everybody knows, we do have to end five minutes before the scheduled end of this for some short committee business.
Mr. Harris.
NDP
Jack Harris NDP St. John's East, NL
Thank you, Chair.
I want to thank all the presenters for coming here today. It's difficult to be cut off in mid-sentence, and I don't know what we can do about it, other than have longer hearings with fewer witnesses. But thank you for coming.
Ms. Harvey, I am the member of Parliament for St. John's East. I'm very aware of your daughter's murder and I want to express my deepest condolences to you. I know you've had a very, very difficult time, not only with that, but also with ensuring that your granddaughter is well looked after.
I do want to say that the Criminal Injuries Compensation Board was developed in the nineties with support and encouragement from the Government of Canada. Unfortunately, that support from the Government of Canada has disappeared. As a result, provinces have reacted differently to that. In the case of Newfoundland, in fact, getting rid of the Criminal Injuries Compensation Board altogether I think is a bad situation. I would hope the federal government would want to do something about that. They long expressed their concerns about victims of crime, but this is an area where, as in your case and in many, many others, societal assistance to victims of crime in a monetary measure obviously cannot make up for the crimes themselves or for the loss, but they can certainly make it more likely and more possible for you to deal with your circumstances.
So you do have my very strong condolences on that. And thank you for coming and expressing your views.
I have a question for Mr. Chaffe. I know you didn't get to say everything you wanted to, but I'm looking here at the Canadian Bar Association's brief, which they presented to the committee on Tuesday. Perhaps you could elaborate on some of your concerns about more trials or more resources being required. They expressed an analysis of the changes in the sentencing for growing marijuana. It seems to me extremely complex, and they say that it's arbitrary and complex and it would lead to necessities of proving all sorts of mens rea for each aspect of the crimes proposed.
Have you got a handle on how complex that will be from a prosecutorial point of view? What would be the consequences of that? The minimum sentences are doubled when you go from 200 plants to 201. They criticize that. And some of the arbitrary nature of it...by talking about being a certain distance from places where children under 18 may frequent. What does all of that do for you and your members as prosecutors? What will that lead to? What do you think about that?
President, Canadian Association of Crown Counsel
Let me say at the outset that you're probably not going to be satisfied with my answer. The CACC, unlike the CBA, doesn't make comment with respect to good or bad parts of the bill. As a front-line prosecutor myself, obviously, I don't prosecute those types of cases. I'm a provincial prosecutor. Federal prosecutors will have to learn the law and apply it.
The CACC's perspective with respect to new criminal legislation is that it's Parliament's prerogative and duty to make law. The front-line prosecutor's job is to carry it into effect. That's our job as front-line prosecutors. Our perspective with respect to all new criminal legislation is that it has to be operationalized. It has to be supported by criminal justice infrastructure. Our perspective with respect to this new legislation is not that it's good or bad. We're not opposing it. Our concern is that it's not supported by the criminal justice infrastructure and it can't be carried into effect with the resources that are in place on the ground today.
NDP
Jack Harris NDP St. John's East, NL
That was what I was interested in. It's going to cost more to do this. Because of the complications and the more trials that you talked about, that will be the result.
President, Canadian Association of Crown Counsel
If those resources aren't added, you get some really aberrant results out of the criminal justice system, as crown prosecutors have to exercise their discretion to prioritize cases so that with the limited court space that's available, they are actually heard.
NDP
Jack Harris NDP St. John's East, NL
Thank you.
Perhaps the Barreau du Québec representatives could comment on that.
Giuseppe Battista Lawyer and President, Committee on Criminal Law, Barreau du Québec
I can only agree with what our colleague has said. In Quebec those prosecutions are handled by provincial crown attorneys, so they are the ones who carry the bulk of the workload. And obviously anything that complicates matters will complicate their task and burden the system more.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chair.
First, for the witnesses' benefit, addressing what Mr. Harris was saying, the format of this whole meeting—the five-minute length of the speeches—was agreed upon in pre-meetings. So you're not being penalized with this. This is the same format for everyone, agreed upon by all the parties, and it's regrettable there isn't more time, perhaps, but this is the format that was unanimously agreed upon.
My question is to Mr. Chaffe. Certainly I understand you're looking at this likely from a systemic impact. We had Vince Westwick, who is the counsel for the Ottawa Police, and Chief Dale McFee, who is the president of the Canadian Association of Chiefs of Police, testify earlier. In essence what they were saying...in the field the same offenders keep going through the system. In a sense what they're saying is that this act isn't going to magically create more criminals in Canada, but the same offenders keep going through the system, with perhaps less plea bargaining, as you've indicated.
I trust you agree that if the same offenders are going through the system, placing them in jail—although you bear the burden of getting them there—makes the streets and communities much safer.
Of course, we've had the mandate from the Canadian public to make the streets more safe. If given the proper resources, you don't find anything in this Bill C-10 objectionable, and you're going to do your job as a good crown.
President, Canadian Association of Crown Counsel
As a good crown I'm going to carry into effect whatever law Parliament sends me.
Do I agree, on a principle basis, that if an offender repeats criminal conduct and he's convicted, he ought to attract a higher sentence? Absolutely.
The critical problem we have, though, is that—and I'll give Ontario as an example—we have a criminal justice infrastructure that can support a trial rate of about 7% or 8%, and that's just a number. If the other 90%, or 92%, or 93% of the cases that come into the court system aren't diverted from trials by way of plea bargaining or withdrawals or guilty pleas, then we get into problems with paragraph 11(b) and those charges are stayed because we can't get them on within a reasonable time, pursuant to the Charter.
So this is a very critical issue with respect to Bill C-10 and all other legislation that toughens sentencing, because it impacts on the trial rate. If fewer accused people are interested in pleading guilty, there are more trials. We don't have the infrastructure to support more trials.
Often what is heard when we make those comments is criticism of legislation. We're not in that business. We're just telling you that systemically this system can't support any more workload.
Conservative
Robert Goguen Conservative Moncton—Riverview—Dieppe, NB
You're obviously a very skilled crown. You're in essence plea bargaining here this morning. You're willing to do your job. You just want us to give the resources to carry out the strong mandate we've been given.
I get it. Thank you.
I'd like to share my time with Mr. Jean.
Conservative
Brian Jean Conservative Fort McMurray—Athabasca, AB
Thank you very much.
And thank you, witnesses, for attending today.
I do want to let you know, Mr. Chaffe, that I have in my seven years here advocated for more money for crown prosecutors, notwithstanding I was a defence attorney for many years, for 11 years in Fort McMurray, actually.
I do also want to make mention of something that disturbed me greatly, as a person who has lived in Fort McMurray my entire life, almost, as a defence attorney and with family members who have gone through serious drug problems and rehabilitation as well as jail. And I think treatment is very important, as is prevention, of course, as is holding those people accountable.
On Monday, CBC aired a report—and I've been waiting to see if Mr. Milewski would show up today—and, in my opinion and that of anybody who watched and understands Bill C-10, they erred because they neglected to mention that Bill C-10 contains an exemption for the use of drug treatment courts. It was very, very disturbing indeed that they would neglect to mention that, especially because I think a lot of Canadians watch CBC. I myself am disturbed enough that I think I'm going to be changing the channel from now on, because they have an obligation to report the truth, especially in this particular case.
I noticed that you, from the Quebec bar, nodded your head in assent with that. I would like your comments in relation not to the misleading report on Monday—and I think it is not funny, to be honest, notwithstanding that I'm laughing as well—but in relation to the exemption in Bill C-10, because obviously that's very, very important to Canadians.