Mr. Speaker, talk about sentencing reform is nothing new. The consultation process that started 10 years ago has finally led to today's third reading debate on Bill C-41, which deals with sentencing. This outcome was preceded by acrimonious debate.
The statement of principle underlying the bill is a step in the right direction. The maintenance of a just, peaceful and safe society by imposing just sanctions, together with other crime prevention and law enforcement initiatives, fully deserves my support. In addition, innovative measures aimed at decriminalizing some minor infractions, alternatives to incarceration, and suspended conditional sentences will reduce prison overcrowding and focus sentencing on rehabilitation rather than incarceration.
That said, I think it is essential to stress that the bill will have a major impact not only on the accused before the court but also on the general public.
Sentencing is one of the most important steps in the criminal justice process. Contrary to what many people believe, most people charged with crimes do not go on trial. The vast majority of them plead guilty as charged. Their only experience of our criminal system is often limited to a brief appearance before the court for sentencing. Most charges laid are settled out of court as a result of plea bargaining. Without this process, the judicial system would clog up to such an extent that, the way things currently stand, it would cease to function to all practical purposes.
As a result, the accused pleads guilty, hoping that his lawyer will negotiate a reasonable sentence with the Crown. Any agreement reached between both parties is submitted to the judge. The judge is then free to approve or reject the suggestion made jointly by the defence and the Crown. The defense may also ask for a presentence report that the judge will take into consideration before handing down his sentence.
The public pays attention to two things: the verdict and the sentence. The majority are not concerned about the technical side of what lawyers do. They want to know whether or not an individual is guilty, and what the sentence is. The sentence does not just involve the accused, but the public in general. The appearance of justice, the setting of an example, clemency and the dissuasive effect of the sentence are all important aspects in the determination of the sentence.
Despite the importance of sentencing, the Criminal Code has never given any exhaustive direction to judges. They exercise complete discretion and have full powers as to the nature and the severity of a sentence. The applicable law in sentencing is written by judges and not by the legislator. This is the classic example of the judge-made law that is part of our Anglo-Saxon heritage.
Through their interpretation of the law and the moral authority they wield, judges help to shape and develop the fundamental values underpinning society. Unfortunately, and I will go on condemning it, women are chronically under-represented in the judiciary. Lynn Smith, the dean of the University of British Columbia's faculty of law laid out the problem clearly in an article entitled "A system that is changing".
It contains the following eloquent passage, and I quote: "The roots of the legal system were put down by men. They were developed in an era when women were not allowed to vote, to stand for office, to be lawyers or to sit on juries. The law was there to protect interests that men held important, that were consistent with the realities of their lives as men. Although the law may be said to take the situation of women into account, nonetheless an entirely masculine perspective underlies our legislation".
The majority of the approximately 1,400 judges handing out sentences are men. The overwhelming majority of federally appointed judges, those sitting in the provincial higher courts or in the Federal Court, are men. Of a total of 950 federal judges, only 134 are women. All come from a privileged socio-economic background. The accused appearing before them are rarely as well connected: they are not always men.
The majority of women who find themselves before the bench are unemployed, on welfare, or possibly working part time. Most judges are unfamiliar with the conditions in which the women appearing before them live. Ninety per cent of women serving a prison sentence have been found guilty of minor property offences, such as shoplifting. They are also sent to jail for non-payment of fines.
It is clear that women in the prison system are a particular clientele. They are not usually there for violent crimes, which brings me to one of the great weaknesses in this bill. Clause 718 identifies one of the main purposes of sentencing as the maintenance of a just, peaceful and safe society. This is a very worthy goal but may be difficult to achieve. And in order to achieve it, we will have to get rid of the gender and class bias of some of our judges. Our magistrates will need some very clear guidelines.
It is surprising that those who drafted the bill did not bother to consider the characteristics of the accused at the time of sentencing. In fact, except in the case of aggravating circumstances associated with crimes motivated by hate or involving abuse of trust, nowhere does Bill C-41 oblige the judge to consider the degree of indigence or the gender of the accused.
Women who come before the courts tend to be different as a group from male offenders, one factor being the type of offences women commit. Their behaviour is not the same and their goals are different as well.
If, at the time of sentencing, the judge makes no allowance for these differences, his decision will inevitably be unfair. Equity does not mean equal treatment. Two identical sentences for the same offences do not carry the same stigma for men and women.
Many women who have been in trouble with the police have already experienced very serious problems as a result of poverty, spousal abuse, family breakup and the fact that in most cases, women end up with the responsibility for a family.
Judges must be made aware of these factors. This problem will be solved when we have as many women as men on the benches of our courts of justice. It is up to the Minister of Justice to administer the remedy.
One of the cornerstones of the bill is the alternative measures for adult offenders. If the province provides for a system of alternative measures, instead of being prosecuted, the adult offender would be ordered to participate in a training program or authorized community services. The conditions and restrictions that apply to the alternative measures program proposed in the bill are almost identical to those in section 4 of the Young Offenders Act.
For instance, offenders will have to accept responsibility for the act or omission and fully and freely consent to participate in such a program. The Crown has full discretion to proceed with prosecution of the offence if it feels there is sufficient evidence and the interests of society so justify.
However, and as usual in the case of federal legislation, it will be up to the provinces to implement these alternative measures. In fact, it will be up to the attorney general of the province to set up a system of alternative measures. Provincial legislation from coast to coast does not necessarily guarantee uniform implementation across the country.
There is no provision for implementation in this bill. Because the federal government conveniently chooses to ignore the need for mechanisms to implement its own legislation, the onus will be on the provinces to implement the system, and they will have to deal with all the start up problems.
This kind of implementation will create provincial and territorial disparities which may cause other provisions of the bill as well as the bill's philosophy to be ignored. In fact, how can we expect to have sentencing parity across the country, if some regions have no alternative sentencing system or are unable to put one in place? Someone who commits an offence in a region where there is no alternative sentencing will not be able to use it, and this part of the bill then becomes ineffective.
Offenders who happen to be in the wrong province will have different sentences. For similar offences committed in similar circumstances, some people will get different sentences, which goes against the principle set forth in clause 718.2.
The range of sentencing available to the judge includes the suspended sentence. Under this system, it is possible to grant individuals a stay of sentence and to allow them to do their time within the community, provided they respect the conditions imposed by the court. Such a stay will only be available to individuals declared guilty of a crime for which no minimum prison sentence is set and sentenced to less than two years.
Suspended sentences only confuse matters more. Judges already have the discretion to suspend the passing of a sentence and to put someone on probation for a specific period. A suspended sentence will have the same effect as suspending the passing of a sentence and putting someone on probation. Same difference. The Minister of Justice would have been better advised not to waste his time reinventing the wheel.
Bill C-41 does, however, innovate in the area of victims' rights. Under clause 722, the judge is obligated to take into account the victim impact statement at the sentencing hearing stage. Hearsay will be acceptable under oath, and, if the victim is deceased or is unable to make a declaration, his or her spouse, relative or anyone who has taken responsibility for the person, may make a statement for the victim.
This important development has made up for all the times that I denounced the minor role that the victim played in legal proceedings until I was blue in the face. But, this should only be the beginning.
Victims must take their rightful place in the courts and not just be regarded as crown witnesses. The Daviault case is a sad example of the foibles of our system. Henri Daviault was recently acquitted, for lack of evidence. The case made quite a stir and prompted the Minister of Justice to table his bill on drunk defence. But the victim died in 1993. Despite the order for a retrial, the crown no longer had a witness and the judge was obliged to acquit Daviault.
Was justice served? The victim cannot give testimony from the grave and the victim's statement cannot be used as evidence now. Daviault is now a free man and we will never know what really happened. The victims of criminal acts must be included in the criminal court proceedings. They should no longer simply be crown witnesses. They should be entitled to representation by counsel and be able to cross-examine the accused, if the individual decides to testify. Victims should be able to call their own witnesses.
The rules on hearsay evidence in a trial should be relaxed in favour of the victim. In short, the system should not further traumatize the victim, who has already been subjected to the violence. Twenty years after the first shelters were opened in Quebec, violence continues to be perpetrated against women. Our society's biggest challenge is to put an end to this scourge.
This violence is not only physical; it can be psychological, emotional, economic and social as well. Spousal abuse is another scourge that must absolutely be stopped. Although the reason is obvious, the problem remains. Most of the members of this House continue to turn a deaf ear, unfortunately. They simply reflect the attitude of a society that indulges spousal violence.
Obviously, most say they are sensitive to violence and do not approve of deviant behaviour. A number also say that spousal violence is reprehensible, but look for an excuse for the disturbing attitude of the aggressor. He was drunk, for example. This approach fosters social acceptance of spousal violence. There are always two sides to the coin in our mind. We try to understand the aggressor and we blame the victim. The implication is, generally, that a man has reasons for abusing his wife, and that the victim's reaction does not meet our expectations.
In criminal law, when the courts have to deal with spousal violence, the sentence is too often lenient when the aggressor is found guilty. And for good reason. The pre-sentence report, which significantly affects the judge's decision, contains a distorted analysis of the problem. The report is limited primarily to analyzing the personality or the history of the aggressor. With this sort of analysis, the system is playing the aggressor's game.
The individual is relieved of responsibility, and the sentences such behaviour deserves are avoided. I contend, therefore, that, in all cases of spousal violence, however serious, the fact that the victim is a spouse or a former spouse should be considered an aggravating circumstance thus requiring a stiffer sentence. Former spouses are all too often the victim of both physical and psychological aggression.
Mr. Speaker, I realize you must intervene at 4.00 p.m. I will therefore turn the floor over to you and perhaps continue afterward.