This particular offender, who had a criminal record both here and in America, was facing a serious charge. He asked me if I remembered him. I said that I didn't and asked if I should.
He said that I had prosecuted him. He said that I hadn't given a damn about him two years ago. His exact words were that I didn't give a damn about him two years ago, so why should he listen to me now?
That's a fair comment. Nine times out of 10, if not 99% of the time, they have a lawyer and that lawyer is their representative. There are rules of conduct, Mr. Chair, that you are aware of as a lawyer, as mandated by the law society of your particular province. As Crown counsel, I couldn't just walk up to an offender and force him to engage in conversation. He remembered that. His point was that I didn't care, when I didn't have the ability to question him or talk to him. Maybe he didn't know that I had ethical obligations on my part not to do that.
Quite frankly, to any of the lawyers on this committee who have had any sort of experience in a busy criminal court, you know you don't have that opportunity. In a given day, Mr. Chair, I was prosecuting anywhere from 30 to 40 cases. You don't have an opportunity to get to know your offender. I told him it was a fair comment, but that this format was vastly different. I explained why it was different.
In the second round, for the first time in my life I was now talking directly to the offender and pointing at him and asking what the hell he was thinking. What caused him on that particular day to pick up that loaded weapon? What were the circumstances?
Again, I'd never, ever, had an opportunity like that as a Crown prosecutor, with the exception of a trial format. If he wished an opportunity to testify, he's not constitutionally required to do that. At all times, it's the Crown attorney's onus and burden to prove a case against an individual beyond a reasonable doubt. Until there is a finding by a judge, accused persons have the luxury of presumption of innocence. They're not compelled to provide a defence. They don't have to disprove anything. They can sit in the weeds and determine whether or not Mr. Brock, the Crown, or any other Crown has proven all the essential elements of the offence.
This was different, and he recognized the difference. Slowly it progressed, like peeling the layers of an onion. There were my questions. The judge and the offender's own lawyer were asking similar questions. The knowledge keeper was trying to draw in why he was engaging, as a proud member of an indigenous clan, in this type of criminal behaviour. The family members were there.
These were very emotional events, Mr. Chair. Numerous times my eyes welled up because you really got to the heart of the matter that you would never get in a trial. You would never get that by simply reading a Gladue report. You would never get that by simply listening to defence counsel talk about the circumstances of the client's background.
After you have that sort of...awakening, I call it, and a challenging of why they found themselves in conflict with the law, then you go to the next round and look at ways the offender wishes to learn from this particular exercise.
Again, it's a concept foreign to the traditional criminal justice format. If you're successful as a prosecutor in securing a conviction or presenting a guilty plea, after trial you don't question why. You don't question the steps they're going to take for their own rehabilitation.
While I know that rehabilitation is an important sentencing feature in any given case, in a traditional criminal format system it sometimes doesn't play as much of a factor as the other sentencing principles, particularly in these areas I referenced in earlier interventions tonight—several hours ago now—when I talked about how judges repeatedly cried out for sentencing principles that apply denunciatory sentences for gun offences and send a very strong deterrent message to the offender and to the community: If you engage in activities like this, you will expect to receive a jail sentence, and it's not only in Canada. I've done case law research on other larger cases across this country.
Going full circle back to the indigenous circle, I was able to listen to what the plan was that this offender had for his life. He was very candid. I think he was a grandfather many times over. I think he was in his sixties at this point. He suffered just horrible, horrible examples of abuse, physical and sexual, outside of the criminal justice system and inside as an offender. It predominantly was much worse in the United States. He found himself in a carjacking situation in Buffalo as a young offender—I think he said he was 14 or 15 at the time—with two adult friends who were 18. He was tried as an adult and he was sentenced as an adult. He did some hard time. I forget the institution he was in, but you can well imagine the horrors he experienced as a young boy in an adult male population. He had no problems recounting that and sharing that terrible chapter in his life, but he'd had enough. He'd had enough.
If I had a dollar, Mr. Chair, for every offender who said, “This time it's going to be different, Judge; I've learned my lesson, Judge; you're never going to see me here again, Judge”, I'd probably be long retired. They're hollow words.
It's much the same sort of insincere rhetoric I used to hear daily in bail court, where they would promise the justice of the peace, “Oh, throw on as many conditions as you want. I'll comply with everything. I'll comply with house arrest. I'll stay away from the alcohol. I'll stay away from the drugs. I won't harass my girlfriend, even though I've done it 10 times over.” They'll promise the sun and the moon and the stars just to secure their release, but it's hollow. It's a hollow promise. I experienced that in the criminal justice field as well.
It was different in the Indigenous People's Court. I listened to him. I'm not going to mention the offender's name, out of respect. I said to him, “You'll have to forgive me if I don't believe you. You'll have to forgive me if I have my doubt.” I explained why I had my doubt, but I said, “You appear to be sincere, so I'm going to give you a challenge. You talked about upgrading your education. You talked about getting some counselling for your addictions.” I think he was addicted to crystal meth or something—a harder drug. I said to him, “You talked about securing a job. You talked about being a role model to your grandchildren. You recognize that to be a role model, you're going to have to have some stable housing.”
He made a commitment to that.
This particular case probably lasted the better part of two years. Ordinarily, someone accepting responsibility for something like that would have been in and out of the criminal justice system in two or three months and would have been serving a sentence in some institution long before this particular case ended.
He did everything he set out to do, and not only did he show me certificates of attendance, but he showed me certificates of putting a 110% effort into everything he said he was going to do. He came armed with character reference letters from the institution and the organizations he was involved in. He found himself a job. He was earning a regular paycheque. He had turned a significant page.
It came to the point, Mr. Chair, that I had to ask myself, “I have all this discretion. I've now seen an offender who was sincere in everything he said he wanted to do to change his life. Do I believe there is more than a reasonable prospect that I will never see him again in the criminal justice system?” I concluded that was the case. Through my discussion with my Crown manager and other colleagues, we were able to craft a sentence that still held the offender responsible but prevented the traditional brick and mortar institution.
To all the members of this committee who feel that Bill C-5, which we are currently debating, is the answer to all of these issues, I've given you an example of steps Crown prosecutors take daily, and they take the job very seriously. There are other ways to address the over-incarceration issue without compromising community safety. That was the example I wanted to share with you.
I've often asked myself when and where should I raise this issue, and I think, now that it's on my mind right now, I don't want to lose the train of thought.
We've heard numerous times in this committee, not only from witnesses but from committee members, the Attorney General, all other senior ministers, the back bench, the Greens, Ms. May and Mr. Morrice today that we should trust our judges, that judges know best and that judges need to have this discretion in their hands to do their job. I've been a proud member of the Ontario bar for 30-plus years, and when I say what I'm about to say, I mean absolutely no disrespect to the judiciary.
I appeared in front of many judges in my lifetime, Mr. Chair. They too, just like Crown attorneys, are not walking robots. They do not all think the same. They do not all pronounce judgements in much the same way. Hence, we have appellate courts, depending on the charge and depending on Crown election to proceed summarily. Sometimes the appellate route is to the Superior Court of Justice—the Court of Queen's Bench for my western colleagues—the various provincial courts of appeal or ultimately the Supreme Court of Canada.
Judges, folks, do not think the same. They do not apply the law equally in the same respect. There are judges who have acquired reputations—soft, hard and all in between.
I'll give you another example.
There was one particular judge in the lower court in Brantford—again, I'm not going to repeat her name, out of respect. I know you'd like me to, Gary, but I simply can't, out of respect.
It was extremely frustrating to Crown attorneys, very frustrating to us, because it appeared that—it was a female justice—she just had a different perception on criminal justice and always placed the principles of rehabilitation paramount. She would mention, “This is an offence that attracts”—