Mr. Speaker, as a practising defence lawyer with 17 years experience in the criminal justice system I commend the Minister of Justice for introducing sentencing practices which are responsive to the concerns and values of Canadians and which address the many existing injustices inherent in the criminal procedure process and the practices of our criminal justice system.
Bill C-41, an act to amend the Criminal Code of Canada with respect to sentencing is a bill which reflects the government's commitment to a renewed criminal justice system that is balanced, fair, and encourages respect for the law.
Justice, law and equality are the fundamental elements required to maintain a balance within our criminal justice system. However, the determining factor is the human element.
It is the human element that determines the success or failure of our criminal justice system. The human element includes ourselves as individuals who are to be law-abiding citizens, the community at large which develops public opinion, the role of our law enforcers which is to enforce law, the role of our prosecutors administering justice within the system, the role of defence counsel defending and protecting rights of the accused, the role of the judiciary rendering a decision, the role of our probation officers, psychologists, social workers, health care professionals, penal institution employees, our clergymen regarding the rehabilitation of the accused, and the role of we here today, the legislators, enacting the law.
The success of the system does not primarily rely on legislation. The fundamental success of our criminal justice system relies on the ability of man to administer justice without abuse of authority and power, and the ability of man to administer justice coupled with equity and mercy.
Justice, law and morality are inseparable. If a moral society existed there would be no need for criminal sanction. It is a requirement for this criminal sanction in our society that necessitates government to deter, to punish, to rehabilitate its members of society.
Bill C-41 on sentencing reform introduces changes to the sentencing system while also reorganizing and rationalizing it. The reforms provide a balanced, sensible and broad range of options that address the public's need for safety, the victims' desire for restitution, and the important principle that serious offenders should be treated differently from minor or first-time offenders.
The amendments are the result of extensive consultations in co-operation with the provinces and territories that are responsible for administering the criminal justice system.
This bill provides the courts with more options to distinguish between serious violent crime requiring jail and less serious, non-violent crime that could be addressed more effectively at the community level.
For those Canadians who demand equity in sentencing, Bill C-41 addresses this concern by introducing a statement of purpose and principles of sentencing within the Criminal Code.
No statement of purpose and principles of sentencing currently exist in the Criminal Code. While court rulings have determined principles, these may vary from province to province. To date Parliament's role has largely been limited to setting maximum penalties for specific offences rather than dealing with the policy objectives of the sentencing process.
Under the proposals, a statement of purpose in principles of sentencing will be added to the Criminal Code. This statement will provide direction to the courts and the fundamental purpose of sentencing to contribute to the maintenance of a just, peaceful and safe society.
The statement describes the objectives of sentencing as follows: first, helping in the rehabilitation of offenders as law-abiding persons; second, separating offenders from society where necessary; third, providing restitution to individual victims or the community; fourth, promoting a sense of responsibility by offenders, including encouraging acknowledgement by offenders of the harm done to victims or to the community at large; fifth, denouncing unlawful conduct; and sixth, deterring the offender and other people from committing offences.
In achieving these objectives the court will be guided by a number of fundamental principles: first, a sentence must reflect the seriousness of the offence; second, the degree of responsibility of the offender; third, courts must consider aggravating and mitigating circumstances; fourth, give similar sentences to offenders who have committed similar acts; fifth, when an offender receives more than one sentence, the total should not be unduly long or harsh; sixth, the offender should not be imprisoned if less restrictive alternatives are appropriate; and seventh, all reasonable alternatives should be considered when sentencing offenders.
The statement of purpose and principles will also note the importance of crime prevention to public safety. In addition, it will recognize that wherever appropriate, alternative measures designed to meet the special needs of aboriginal offenders should be used. The statements of purpose and principles in the Criminal Code will emphasize unity and coherence in the criminal justice system. These measures will ensure greater
consistency, balance and fairness within the criminal justice system as a whole.
Adding a statement of purpose and principles makes the sentencing process responsive to public concerns by ensuring that it is governed by principles set out by Parliament. Clearly defining the purpose of sentencing also makes the system more understandable, predictable and accessible to the public.
A national policy statement on sentencing will also provide the legal community with a more consistent direction on how to approach sentencing in Canada.
The proposed statement of principles also says that when an offence is motivated by hate based on the race, nationality, colour, religion, sex, age, mental or physical disability, or sexual orientation of the victim, this must be considered an aggravating circumstance.
Any offence motivated by hate against any individual in Canada should not be tolerated. I wish to reiterate this statement, that any offence motivated by hate against any individual in Canada should not be tolerated.
However, I wish to go on record today as taking exception to the specific inclusion of the wording of "sexual orientation" in the Criminal Code amendment. The inclusion of this wording in effect gives special rights, special consideration, to homosexuals. The reference to sexual orientation in the code and its proposed inclusion in the human rights legislation gives recognition to a faction in our society which is undermining and destroying our Canadian values and Christian morality. Such a special recognition of sexual orientation in our federal legislation is an overt condonation of the practice of homosexuality which is being imposed on Canadians. It has the effect of legislating a morality that is not supported by our Canadian and Christian morals and values.
Canadians do not have to accept homosexuality as being natural and moral. Homosexuality is not natural, it is immoral and it is undermining the inherent rights and values of our Canadian families and it must not and should not be condoned.
The public expresses legitimate concerns for victims of crime. Bill C-41 provides enhanced provisions for victims. Some courts have excluded victim information from being considered at section 745 hearings because this information was felt to be a form of victim impact statement, which according to the Criminal Code can only be heard at sentencing hearings.
The amendments to the Criminal Code would allow victim information at section 745 hearings. This would ensure that a victim has the opportunity to speak about the harm done by the offender and that the victim's experience is taken into account in determining whether the period of parole ineligibility should be reduced.
Bill C-41 addresses the concerns of Canadians with respect to the issue of restitution. The bill contains proposals that were developed co-operatively by the federal government and the provinces. They would allow judges to consider restitution to cover property and personal injury.
Expanded restitution would also be available in situations where a person acting in good faith unwittingly becomes the victim of criminal activities by, for example, unknowingly buying stolen property that is later confiscated by police.
Provision is made to ensure restitution orders can be enforced by the civil courts. Victims will also be notified of restitution orders. As well the code would specifically state that any restitution order by a criminal court would not limit a victim's right to sue for damages in a civil court.
Bill C-41 also addresses payment of fines. Currently one-third of adult offenders in jails in Canada are there because they did not pay a fine. Research shows that aboriginal people are especially likely to be jailed due to non-payment of fines. To ensure that fewer persons are ordered to pay fines they cannot afford, the proposals would require courts to determine that an offender can pay the fine being considered.
Offenders who cannot pay can instead be subject to other options such as community service or probation. A number of measures are also being proposed to help the provinces in collecting fines. These include authorizing the provinces to use the same mechanisms that they use enforcing fines imposed under federal statute.
Designate officers of the court such as the clerk or registrar to enforce fines rather than the court itself allows for more cost efficient administration with respect to the collection of fines.
Ultimately these proposals would result in less crowded, safer prisons as well as decrease costs. They would also lessen the potentially damaging effect of imprisonment on people unable to pay fines. However, maintaining prison as a last resort for people who can pay fines will ensure that the law is respected.
Another important issue the bill addresses is with respect to reform regarding probation. The probation provisions of the Criminal Code have been changed to encourage better information for the court. Together with greater penalties for breach of probation this is intended to increase confidence in this widely used sentence.
Under the proposals the Criminal Code would be intended to specify the basic information that must be included in a pre-sentence report. The provinces will also be given the flexibility to include in their own regulations any other information they wish to have included in this pre-sentence report.
The criminal justice system often fails Canadians and therefore we need alternatives in Canada to court proceedings. Alternative measures are ways that disputes and minor offences can be dealt with rather than using expensive and unnecessary formal court proceedings.
Alternative measures have two central aims: to prevent more criminal behaviour and to lessen the harm that can sometimes be done when minor offenders are dealt with through the courts.
They also involve the community and put greater emphasis on victim-offender reconciliation than do formal court proceedings. At present the Criminal Code contains no provisions for alternative measures.
The bill would allow the use of alternative measures for adults by permitting each province to set up and administer its own alternative measures program. This proposal is similar to one successfully used in various jurisdictions for young offenders. As a result first time and less serious offenders could be diverted from the courts. This would promote protection of the public by lessening the negative impact of incarceration on less serious offenders while freeing up valuable and scarce resources to deal with the more serious cases. Canadians should know that the bill would add a new sanction called a conditional sentence to the Criminal Code. Courts would be permitted to use conditional sentences when the jail term that would otherwise be imposed will be less than two years.
A judge would impose certain conditions on an offender similar to the conditions of a probation order. At the same time the judge would impose a jail term but suspend it as long as the offender meets the conditions that had been imposed.
Offenders who do not comply with these conditions can be summoned back to court to explain and to demonstrate why they should not be incarcerated. The court can cancel the suspension of the sentence and send the offender to jail for the remainder of the sentence, or it can impose new conditions.
The proposal would mean that less serious and first time offenders who otherwise would be in jail could serve their sentences under tight controls in the community. This promotes protection of the public by seeking to separate more serious offenders from the community while providing less serious offenders with effective community based alternatives. It could also mean that scarce funds could be used for incarcerating and treating more serious offenders.
As a defence lawyer I have great concern with respect to the existing rules of evidence and procedure for the sentencing hearing. At present there are no clear guidelines in the law governing the sentencing hearing to indicate when information should be made available to the court, what powers the court should have to obtain that information, or how that information should be assessed in determining sentences. Previous court rulings may be referred to but they do not cover all situations and may differ significantly from province to province.
The bill proposes amendments to the Criminal Code to clarify how sentences should be handled in the courts. The bill also requires every judge to present reasons for their sentences in cases. These amendments bring greater consistency and fairness to the sentencing process.
The Criminal Code of Canada as a statute requires restructuring and in particular the restructuring of part 23 of the Criminal Code. Our current legislation with amendments leaves us with a piecemeal approach to our Criminal Code. The bill would amend part 23 so that most matters dealing with sentencing would be consolidated within this part of the Criminal Code rather than scattered throughout. Because of the restructuring in such a logical way our Criminal Code would be more understandable and accessible to criminal justice professionals and to the public at large.
Often injustices arise in a criminal justice system on the basis of technicalities. Technical amendments are required and Bill C-41 addresses this point. A variety of technical issues are either not addressed by our current legislation or are being confused. These include when a probation order should begin, how a judge can direct the manner in which escape sentences are to be served in relation to previously imposed sentences, what happens to a sentence while an inmate is unlawfully at large and who can authorize the transfer of a probationer from one province to another. The bill intends to clarify some of these issues.
In conclusion the reform and the renewal of the criminal justice system in Canada must be priorities with our government. Canadians demand justice and equity. They must be reflected within the criminal practices, procedure and process in our criminal justice system.
The sentencing amendments proposed by Bill C-41 affords Canadians sentencing practices and procedures that are just and equitable throughout Canada.