Justice Committee on Feb. 16th, 2015

[The Chair, Conservative, Mike Wallace]

All those in favour?

(Motion agreed to)

Thank you very much.

Our first questioner will be from the New Democratic Party, Madame Boivin.

We have a lot of panellists. Please try to identify who you are questioning.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you for taking part in today's meeting.

I will start with Dr. Hannem because I think you pinpointed something really important.

The database you are talking about worries me considerably. It may mean that the victim will be identified. I don't think that is the intended objective. There seem to be two problems with this database: this matter of identification, and the issue of determining who will identify the person who is at high risk of recidivism.

If I understand correctly, we should perhaps include in clause 5 of the part of Bill C-26 that deals with the database a sentence specifying that none of this public information should be used to identify or contribute to identify the victim.

Would that be an acceptable caveat?

As for determining what should be included in this new database, should this responsibility not be given to the court rather than the RCMP? The governor in council could intervene first, in accordance with what is specified in the bill, which reads as follows:

11. The governor in council may make regulations: (a) establishing the criteria for determining whether a person who is found guilty of a sexual offence against a child poses a high risk of committing a crime of a sexual nature;

Clauses 3 and 4 refer to “information with respect to persons who are found guilty of sexual offences against children and who pose a high risk of committing crimes of a sexual nature.”

Would this not be a better way of framing this database?

[Dr. Stacey Hannem]

That's a very good question.

Currently when we're making determinations about public notification, the Correctional Service of Canada will generally inform the local police services when it is making a high-risk release, and it is up to the local police service to determine whether or not it wishes to make a public notification. It is done at its discretion.

So I do think, in terms of determining who is going to be identified as a high-risk release, you might want to have the parole board involved at that stage, because it is certainly in a position to determine what the level of risk is when people are being released. That would be my first recommendation, if we have to put some stipulations on that.

The second piece is about identifying victims, and I think this is the other problem. The bill itself stipulates that only information that was previously made publicly available by public notification would be available, but that is at the discretion of the local police service once again.

[Françoise Boivin, NDP, Gatineau, QC]

Do you also agree with a lot of the witnesses, and sometimes the victims themselves, or the associations of victims, that say that over 85%—I'm being conservative, which is rare in my case. But between 85%, and some said 95%.... We heard Sheldon Kennedy talking about how 93% of the cases are family oriented.

Are we not creating more problems than anything else, or is what's going to happen just that they will not venture that way? It's just a law that will serve absolutely nothing.

[Dr. Stacey Hannem]

In my opinion, the law will do very little, if anything.

[Françoise Boivin, NDP, Gatineau, QC]

Now to all my friends, lawyers like me, who don't like

minimum sentences. When I read Bill C-26,

Most of the clauses are stating minimums that already exist, so they're not even in contention in C-26. There are a few, maybe two or three, that are just upgraded from maybe 90 days to six months, but nothing really.... I know we all share big doubts about the efficiency of it. We had Mr. Gilhooly, and he's been one of the big victims of such crimes, who came and said he doesn't think it will do anything because of all types of concepts.

You spend a lot of time on the minimums and the maximums, but the maximums are rarely where the tribunals go. There's not that much change to the minimums, so is that really the biggest problem you see with Bill C-26?

I'll start with Mr. Spratt.

[Michael Spratt]

The minimums are already there. Whether the minimums work or not, I guess there can be some debate. You can't really debate the evidence.

The problem with saying we're just increasing what's already there is that the minimums that are already there are barely passing constitutional muster. The case that I referred to was a 90-day minimum. The judge said he would have given 14; he thought that's what was reasonable.

Is 90 grossly disproportionate? It's really close, and he said, probably, yes. Let's let the court of appeal figure it out.

You're doubling it, so what was perhaps arguable—and I don't think it was—when you increase it, it's the nail in the coffin. These things are going to be found to be grossly disproportionate now.

[Françoise Boivin, NDP, Gatineau, QC]

Does the CBA have the same opinion?

[Paul Calarco]

Yes, I agree with my colleague.

These are very significant increases. I believe it is far more likely now that there will be constitutional challenges, there will be a finding of gross disproportionality, and that means the entire sentencing regime must be struck down. It is not possible to simply take one offender out of that. Courts have to have the flexibility to impose a proportionate sentence for the individual before them. As I said in my presentation, one-size-fits-all does not work.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Therrien, what could we do to include elements that would satisfy your office, and to protect privacy in the best possible way with regard to this database? Let's be realistic, the government has a majority and there is going to be a database. What do you suggest we change in the bill to meet your concerns?

[Daniel Therrien]

I heard the testimony stating that the victims only want the criminal justice system to take better account of what has happened to them. I sympathize entirely with that viewpoint. I don't think there is much to be done with the public nature of the system in question.

It is conceivable that certain victims of crime would be advised of the release of the person who assaulted them and that in that way the victim would consider that he is being better treated by the state and by the criminal justice system. However, the bill that is being studied proposes that all of the Canadian population be advised through a website of the names of various persons and the circumstances that led to their convictions.

As to the public nature of the document, of the system in question, there is no middle ground. The only thing I could suggest is that the victims be advised personally, but insofar as publication is concerned, it is either public or it is not.

[The Chair, Conservative, Mike Wallace]

Yes. Thank you.

Our next question is from the Conservative Party's Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Thank you to each of our guests for joining us today.

I want to start with the question of sentencing, both the mandatory prison sentences and the consecutive sentencing provisions in the bill. Unfortunately Mr. Kennedy is no longer with us. I would have liked to have heard his comments on those sections, but I do see that we have Mr. Fortier and Mr. Tremblay with us.

Mr. Tremblay, I believe it was you who said that Bill C-26, in your opinion, would better protect children and recognize the harm done to victims. You may know that in our last session we heard from Mr. David Butt who was here on behalf of the Kids Internet Safety Alliance and is a former crown prosecutor, and currently I think is a defence counsel. I'll just go to the bottom of his remarks about mandatory minimums. He said the mandatory minimums as proposed don't go too far. They recognize an appropriate level of moral opprobrium for the offence and they preserve judicial discretion.

We heard from the Canadian Bar Association, the Criminal Lawyers' Association, and others that they don't think that the minimum sentences contribute to deterrence, but they didn't say anything about public denunciation, the abhorrence that society feels about a crime of this nature committed against a child.

You mentioned the harm done to victims, and Mr. Butt mentioned the moral opprobrium concept, as I said, and I think it's kind of strange that we don't hear anything about that from the Canadian Bar Association or the Criminal Lawyer's Association. What's your view of mandatory prison sentences for people who commit these kinds of heinous offences against children, who are proven to have done so? What is the impact on the victims when they see both a minimum sentence that's meaningful and consecutive sentencing in a situation where the accused has committed similar offences against several children or multiple times against the same child?

Mr. Tremblay, can I hear from you and then Mr. Fortier as well?

I'd also like to hear from Ms. O'Sullivan on those issues.

[Frank Tremblay]

Thank you very much.

I'm going to talk in French; it's better for me.

Minimum sentences are also a message that is sent to victims. There are several of us around this table. Overcoming what happened represents an enormous challenge for victims. As a victim and the representative of a victims' association, I interact with individuals, hundreds of men, fathers and grandfathers who were assaulted as children. The people we deal with, who write to us or speak to us, express a profound disgust for society.

Throughout our lives, that is to say from childhood until the age we are now, when a sentence is handed down that constitutes an injustice, we are disgusted. You can see that in a schoolyard just as in the adult world. When you leave a courtroom, and see that the consequences on the life of an individual are enormous and that the whole debate centres on how the private life of the individual who assaulted the child can be protected... Whenever that individual decided to assault someone, he did so voluntarily. He targeted his victim. He knew there would be consequences, but he decided to commit the assault. What is the point of saying that we won't help that individual stop committing crimes if he is given a minimum sentence, and if consecutive sentences are imposed rather than concurrent ones?

When people act that way, they are only looking at one side of things. From where you sit, you don't see things the way I do. The message would be different if everyone could sit on the other side and wonder what we are doing for the victims as well the members of our society who see these things. The message would be that we have to stop thinking that it is necessary to focus on the person who assaulted someone else. That is often what we see in courtrooms and this gives rise to profound disgust.

If you tell me that there will be fewer assaults, I will feel that I have obtained redress. But as for my personal case and that of many others, I do not have the feeling that that redress was obtained.

When I went before the parole board again and exposed the lies that individual told six months before, in a civil case, while he was in prison, people were very kind to me, but what happened? The individual was released that very evening, and he was in a halfway house in Montreal by 8:00 p.m.

The fact that people are saying “be careful, let's avoid minimum sentences” is a big problem for me. This is the message you are sending society. When you only look at the abuser's side, you say that there will not be any impact, but if you try to see things from the other side, you will see that the impact felt by the victims and by society is important.

Have I answered your question?

[The Chair, Conservative, Mike Wallace]

Go ahead, Mr. Fortier.

[Alain Fortier]

Insofar as the minimum sentences are concerned, I think that is a step forward. It is good to impose a sentence of two years less a day, especially in cases of sexual assaults against children. I would even go so far as to say that the ideal would be a sentence of two years plus a day, because we know that provincial penitentiaries are warehouses, that is to say places where people learn to commit crimes, whereas federal prisons offer programs and do follow-up. That is my first point concerning sentences.

I don't understand why some people doubt the deterrent effect of stricter sentences. If I drive 160 kilometres an hour on the highway and a policeman stops me, slaps me on the wrist and tells me not to do it again, I may do it again, whereas if it costs me $400, I might be less inclined to repeat my actions.

I'd like to mention one last thing. I was assaulted by two different people, repeatedly. I never brought legal action against the second aggressor in criminal court, but I launched full criminal proceedings against the first abuser that lasted five years.

I did not lay charges against my second abuser because I did not want to revisit all of that again, both for my family and friends' sake as well as for myself. I did all of that to see my abuser be sentenced to only 90 days in prison? No way! I did not bring charges against my second abuser, and he is still out there. Has he made new victims? Yes. If I had known at that point that the sentence would be adequate, I would have brought charges and I would have gone to testify.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

As I understand it, you make a good point that if they're in longer, there's more time for treatment of the offender. Secondly, if they're in longer, there's less opportunity for them to commit another crime against another child, while they're in custody.

Go ahead, Ms. O'Sullivan.

[Sue O'Sullivan]

You've heard from witnesses here today, as well as other witnesses before this committee, that victims will come from their own experiences. For some victims, sentencing is a hugely important issue and is very much part of the process. For others, we've heard from victims where the important issue is restorative justice or other opportunities to work with offenders.

What is clear here is that the impacts of child sexual abuse—and I've heard Mr. Kennedy speak many times as well—and the implications are lifelong, and the cost to society is huge. We've talked a lot about the supports in place and ensuring the offender doesn't reoffend. You've heard me talk publicly about the importance, that if we really want to talk about a healthy society, we also need to make sure that the victims.... The legs of the stool are not equal. We need to ensure that victims have the supports and resources they need in place as well, to ensure they can cope.

We know the impact of abuse on people. We can talk about all of the concurrent issues that can come with it. I think we've heard from the witnesses here today, particularly about the importance, for many victims, of sentencing. In particular, we talked about minimums, but there are also consecutive sentences. I understand the proportionality and the totality of the system. But when we talk about acknowledging, we mean that each victim has been victimized. We need to ensure that the criminal justice system recognizes that.

[The Chair, Conservative, Mike Wallace]

Thank you very much. That's your time.

Our next questioner is Mr. Casey from the Liberal Party.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

In Mr. Dechert's first question, he criticized a couple of the lawyers' organizations for not talking about public abhorrence and denunciation when it comes to sentencing, but he didn't give you a chance to respond.

Mr. Spratt and Mr. Calarco, this is your chance. Where do public abhorrence and denunciation fit in sentencing? Where do they fit, compared to the other factors that you've spoken about at some length?

[Michael Spratt]

Briefly, denunciation is but one of the principles of sentencing. The problem with bills like this and with mandatory sentences is that they put too much weight on that principle, and in an unconstitutional way.

There's a fallacy in the logic that was employed in the question. These people are in longer so they get more treatment. Well, not if it's six months, not if they're in Alberta; they don't. When we say that this deters, that's what's being said here today, but that's not the bill of goods that's being sold by the politicians, is it?

The justice minister was in here, saying minimum sentences protect. If you want to go out and sell it that we're going to retributive, we're going to deter, that's fine. Bill it as that. If it falls as unconstitutional, that's fine. Your words are on record.

But when you go and sell it as a protection, that's not backed up by evidence. That might sound good when you say it, but evidence is what counts in court. That's why these things get struck down all the time. That's why these ones probably will, too.

[Paul Calarco]

Public denunciation is very much part of any sentencing and especially in a horrendous matter like child sex abuse. A judge has to say, in sentencing an individual, “You have committed a terrible crime, but there are many factors that I have to consider.” How does one, as a judge, say the sentence should be a very deterrent sentence, but then emphasize public denunciation more and increase that beyond what it should be? A judge can't say that. The fine balancing is necessary here for our traditions and to uphold our rule of law.

In overemphasizing public denunciation, a judge would make an error. No one believes that child sexual abuse should be dealt with lightly. But what about those cases where for an individual offender, the public denunciation is achieved through a lesser than minimum sentence than is proposed in this bill? Why should that offender have to serve a much longer period of time because of an overemphasis on public denunciation? It doesn't make sense from a sentencing point of view. It's unfortunate that public denunciation is overemphasized in some ways. We have to look at every aspect here. Just looking at public denunciation leads to improper sentencing, unfortunately.

[Michael Spratt]

If I may, just very briefly, when we look at the most serious and the most heinous cases, we're not talking about 90 days or six months for those. Routinely there are very lengthy sentences for those cases. But when we're looking at reasonable hypotheticals from a constitutional perspective, we're not talking about the six-month sentence, the minimum here, for a heinous repeat offender.

We're talking about some of those reasonable hypotheticals that the courts describe that are much less than that. A 21-year-old who might be sent a picture from his 16-year-old girlfriend or asked for that picture might fall under some of these provisions. So one can imagine some hypothetical situations that are much less serious than those situations being used to sell this notion, and that's where the unfairness on constitutionality really arises.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you.

Dr. Hannem, I get the sense that you might want in on this discussion as well. I have a specific question for you, but feel free to also address the one I just raised with Mr. Calarco and Mr. Spratt.

You have referred us to a specific provision in the act that needs to be amended, the one that takes away the summary conviction option in certain circumstances. Are there other amendments that you feel could strengthen the act or lessen its constitutional vulnerability? And if you want to weigh in on the previous discussion, feel free.

[Dr. Stacey Hannem]

In terms of the constitutional vulnerability, I think as Michael and Paul have said, the increase of the mandatory minimum is potentially problematic and I think will be subject to challenge. Keep in mind that any sort of sentencing range has to cover all possible hypotheticals, as they've said, from the least types of offences that could fall under that legislation to the most serious. So keeping open the widest range of judicial discretion is certainly the most advisable course of action in this case.

In terms of public denunciation, I also think again judicial discretion is what's really key there, the ability for the judge to look at all the facts of the case, to look at the seriousness, to look at the impact on the victim, and to make an appropriate decision that accurately reflects the situation and response.

In terms of other provisions around constitutionality and around things that might improve our response to victims, you should also know that research coming out of the United States finds that the public nature of those registries sometimes impedes people from reporting their victimization, because not only do they not want to go through the public nature of the trial, but they don't want to have the details of that offence and their identity associated with it, particularly when it's an intrafamilial offence. As soon as it's intrafamilial, you are identifying the victim by virtue of making that public, and I think that's something that I would really strongly caution against.