Mr. Speaker, despite the very late hour I will try to return a little sanity to the debate.
Bill C-41, the sentencing bill before us, has some fundamental flaws. It seems the drafters could not decide what is the real purpose of sentencing. Should we base the prison term on the seriousness of the crime or the identity of the victim? Are alternative measures desirable because our jails are full or because it is more likely that criminals in community service programs are less likely to reoffend?
Certainly a structured program in open custody may be a preferable alternative to incarceration for a first time offender, especially if it is more for a minor property offence and genuine remorse is shown.
Is it appropriate for repeat offenders whether against property or people? Section 717 leaves alternative measures wide open. There are no limitations on which types of crime should be excluded. If it is primarily intended to empty our jails of the people who fail to pay their fines then say so. If it is supposed to provide an alternative for first time offenders who do not belong with hardened criminals then say so, but do not leave it wide open.
Who gets to decide which self-admitted criminal will benefit from alternative measures? In section 717(b) the bill only says a person. This means someone other than a judge may decide which criminals avoid court and a criminal conviction.
Why is the government reluctant to exclude habitual or violent offenders from alternative measures? Is it afraid of a charter challenge by murderers who would claim that their rights are being violated? If they are denied alternative measures, will lawyers try to tie up the courts with appeals and challenges to any decision to proceed in the courts?
If the government does not have the courage to restrict eligibility for alternative measures perhaps we must reconsider whether alternative measures should be available at all. As legislators we have a responsibility to society to make the tough decisions about which types of crime or offenders should be eligible.
A condition of people's eligibility under section 717 is admitting to their crime. However, after admitting to an offence, they are henceforth referred to as persons alleged to have committed an offence. There is no trial. They are never convicted of a crime. They are not called an offender and therefore have no criminal record. Furthermore their admission of guilt cannot be used against them in any future court proceedings. Alternative measures represent the ultimate plea bargaining dream for lawyers. Now they can admit to a crime, there is no conviction, and the records are buried after two years.
I quote from section 717.1:
-regardless of the degree of their compliance with the terms and conditions of the alternative measures.
Something is very wrong with the sentencing bill. Section 717 needs to be fixed or struck.
Another seriously flawed section is 718 which outlines the purposes and principles of sentencing. Noticeably absent from the list is the concept of punishment. For example, under section 718(a) one objective is: "to denounce unlawful conduct". What is that supposed to mean? Breaking the law is not nice? Why do we not say that one objective is to punish unlawful conduct?
Under section 718(b) the objective is: "to deter the offender and other persons from committing offences". I find it encouraging that the government considers alternative measures such as raking leaves at the local park deterrents. At the same time it totally denies the deterrent value of capital punishment in the case of first degree murder. Which would give a person greater pause: the prospect of three square meals a day, leisure time and the opportunity to pursue a university degree behind bars, or the death penalty?
The objective of section 718(d) is: "to assist in rehabilitating offenders", which represents a clear indictment of our rehabilitation record. Why not simply say to rehabilitate offenders? Why qualify it? If we admit that they are not rehabilitated, that incarceration alone is not working and that we know they are going to reoffend, why are we letting them out? Is that consistent with public safety?
The drafters of the bill failed to realize that incarceration by itself does not punish or rehabilitate people. Likewise acknowledgement of one's actions is not the same thing as guilt or remorse. Let us face it, the real reason we are trying alternative measures is that the government is finally willing to admit the current prison system is not working. If the government can prove recidivism rates are lower with community service and open custody, why are the same principles of work and restitution to society not being applied during incarceration? What is wrong with making able bodied prisoners work?
The new Ontario government is contemplating workfare for welfare recipients. The bill advocates labour in the community, but the government is afraid it will be denying the rights of hardened criminals if they have to work to help compensate for their room and board in prison. Perfecting their golf swing or learning new safe cracking techniques from fellow inmates is hardly constructive or liable to contribute to rehabilitation or reintegration.
Why can we advocate labour for people in open custody but not for those in closed custody? Society should not fear the concept of punishment. Instead we seem to extend more rights to criminals than to victims. At last count Clifford Olsen had launched 32 frivolous lawsuits at taxpayers' expense. Instead of helping to support the cost of their upkeep and learning the habit of working every day, other felons like him go on strike over the quality of their food.
In section 718.2 the government completely departs from the previous implicit admission that our jails are crowded and incarceration as now practised is not working. Suddenly the government advocates putting people behind bars for longer periods, not based on the seriousness of the crime but on the physical attributes or the sexual preferences of the victim.
I find it ironic that in section 717 the government refuses to list which crimes are eligible for alternative measures, leaving it open to anything from car theft to murder. However when we turn to section 718.2 suddenly the government feels the need to create a list. If the aggravating and mitigating circumstances apply to everyone equally why is there a list of special considerations?
After letters opposing the new gun control legislation, the second highest number of letters I have received from my constituents concern the inclusion of the undefined phrase sexual orientation in the list of aggravating circumstances found in the bill. They do not want special rights extended to Canadians based on their sexual preferences, and that is what section 718.2 appears to do.
If the government caves in to special interest groups and political correctness then it should call a spade a spade.
By including the phrase sexual orientation the government is trying to deter gay bashing by heterosexuals. By leaving it undefined it can also include other sexual orientations such as pedophilia and necrophilia.
Liberal colleagues across the way will say that pedophilia is a crime in Canada. Yes, it is. A recent court decision said that sodomy with a 14-year-old was legal, but under section 718.2 if someone punches a pedophile he could receive a harsher sentence even though pedophilia is illegal under Canada's laws.
Canadians want equality. Sexual orientation has been the lightning rod for Bill C-41. Even if it were defined or removed, the fundamental premise of section 718.2 is flawed. Canadians
should be equal before the law and section 718.2 must be deleted in its entirety.
If we change a basic sentence in principle and emphasize the identity of the victim more than the severity of the crime, we will truly be on that slippery slope. The rule of law requires proof, not conjecture. Regrettably prejudice exists in Canada, but creating false inequalities through arbitrary criminal sentencing will hardly address the problem. If anything, it will increase intolerance by creating the justifiable perception that some groups are getting preferential treatment under the law.
In conclusion, justice is supposed to be blind. We all grew up with the image of the blindfolded woman holding the scales. Why do criminals not receive the same sentence for the same crime based on the seriousness of the offence, no matter what group the victim belongs to? Are some Canadian lives worth more or less than others? Prejudice, bias and hatred must be addressed through other mechanisms. It is not the role of the courts to implement the government's social engineering agenda.