moved:
That, in the opinion of this House, the Standing Committee on Justice and Human Rights be instructed, in accordance with Standing Order 68(4)( b ), to prepare and bring in a bill to prevent the use of conditional sentencing in cases where someone is convicted of any sexual offence, drug trafficking, or any other violent crime.
Mr. Speaker, I am pleased to rise this evening to elaborate on my Motion No. 383. It is very appropriate, almost ironically so, that the one day allotted for my private member's motion concerning conditional sentencing happened to fall on this Reform supply day. In its role as official opposition the Reform moved a supply motion that was debated by all parties in the House. We debated conditional sentencing, the Young Offenders Act and other aspects of the failed legal system which is presently masquerading as a justice system in Canada.
It is unfortunate that Motion No. 383 is limited to simple elaboration. The committee responsible for determining which private members' motions are votable and worthy of three hours of debate in this House did not feel inclined to allow all members of this House to explore the issue further. Naturally I am extremely disappointed in that decision as this motion is non-partisan in nature. It is simply a mechanism I proposed to remedy a legislative error.
The granting of conditional sentences to violent and sexual offenders is indeed an error. It was never the intent of this House in the last parliament to have Bill C-41, which instituted the concept of conditional sentencing, apply to those types of crimes. That is one of the issues that was being debated virtually all day in the House. Even the justice minister at the time publicly stated that was never the intent.
Through this motion I wanted to right that wrong by using the resources and co-operation of the Standing Committee on Justice and Human Rights. This motion does not propose something concretely unpalatable to any members of this House. It is a first step in drafting a reasonable remedy to the ambiguity of conditional sentencing.
I believe certain members of the private members' business committee did not understand that intent. During my presentation the chair of the committee asked “And just how many more prisons would have to be built if your motion were passed?” In case any members of the House are asking themselves that same question, I caution that they do not understand the motion. I emphasize that the prison population will not suddenly expand to phenomenal proportions if conditional sentencing were disallowed for violent and sexual offenders and drug traffickers.
Conditional sentencing is a recent development. It has not been responsible for significantly reducing the prison population throughout the years. It did not take effect until September 3, 1996, so the answer is no. There will be no sudden overwhelming need to build more prisons. I fear the chair of the committee missed the entire point of my motion when she asked that question.
Conditional sentences have created confusion and ambiguity in the legal system across the country. It is ironic that when Bill C-41 was before the House the justice minister at the time said the bill would improve the process of sentencing and criminal law. I ask government members to listen carefully to his words which so specifically describe the intent of Bill C-41: “In this bill, parliament is given the opportunity to declare the key purposes of sentencing, to put before judges a list of factors to be taken into account, to provide direction, to encourage uniformity so that the purpose of the process can be properly understood and so that it might be rendered more predictable than it is at present.
“What are those purposes and principles? They are spelled out clearly and in plain language in the statute. The sentence would reflect the seriousness of the offence. There would be similar sentences for comparable crimes. Those who contravene the criminal law must face punishment”.
Those were the words of the justice minister in June 1995. He said that Bill C-41 was to assist the courts in making the sentencing process more reliable and more consistent with the intentions of parliament.
Now fast forward to January 1998, more than a year after Bill C-41 provisions took effect. The current justice minister publicly stated: “There have been some circumstances in which I believe conditional sentences were used when it was not the intention of parliament to have them used and those should be appealed”. She added that conditional sentencing was never intended to apply to violent or sexual offenders. While Bill C-41 was supposed to clear up ambiguity in sentencing she said she prefers to allow the appeal courts to address the inappropriate use of conditional sentencing.
Needless to say, this is entirely opposite to the promises of consistency and reliability for the courts in using Bill C-41 as a guide which were given by the former justice minister in 1995. Since its implementation conditional sentencing has been used in cases of rape, assault, drug trafficking and other violent offences. Canadians are alarmed at this application of the Criminal Code and communities feel threatened. The punishment certainly does not fit the crime. This is not a tough on crime perspective. This is just the simple facts of the wrongful use of conditional sentencing.
Rapists, violent offenders and those who attempt to exploit children and the weak through a profitable drug trade should face jail time. In Grande Prairie, Alberta a judge released a man on a conditional sentence after he fired a .22 calibre sawed-off rifle at his wife but he missed. He received an 18 month conditional sentence to be served in the community.
In a B.C. case a man who confessed to sexually assaulting his babysitter once a week for three years from the time she was 11 was excused from serving any time in jail.
In Nova Scotia a convicted wife beater received a conditional sentence. In Ontario another man pleaded guilty to carrying a pellet rifle while assaulting and forcibly confining his estranged wife in her Mississauga home while his children watched. His punishment was an 18 month conditional sentence through which he was to live with his parents and stay at least a kilometre away from his wife and children, despite the fact that his wife believes he will return to kill her some day and the children remain fearful of even seeing their father.
A B.C. man was convicted of two counts of indecent assault and three counts of gross indecency. The victim was a child he helped raise from the age of three months and the sexual assaults began when she was three and ended when she was thirteen. This man was spared jail time on a conditional sentence.
In another B.C. case a man who threatened, raped and sodomized a 38-year old woman with the handle of racquetball racquet received a conditional sentence exempting him from serving two years in jail. The sentence was appealed and the offender eventually received a sentence of two years in jail less time served; in other words, just a few months in jail for that horrendous crime. The appeal itself was a drain of resources.
We are not talking about fearmongering here. We are talking about legal precedents. These are just a few of the examples of phenomena occurring with increased frequency. In any of these cases I find it impossible to believe that any reasonable and feeling human could consider that these offenders should not go to jail for their crimes. The victims of these criminals deserve better. It sends the message that despite the pain and suffering resulting from the violent trauma they have endured society does not feel it is worthy of punishment for the offender.
Imagine how this must feel to the victims of these crimes. Many victims have compared an inadequate sentence to enduring the attack all over again. Unfortunately in some cases an inadequate sentence may actually mean the attack will occur again. This is certainly a very real possibility for victims of domestic violence and sexual crimes.
A woman whose husband, ex-husband or boyfriend has beaten or raped her and is released on a conditional sentence lives every day in fear of that happening.
Since he is not in jail he is able to strike again. As we have seen, once these offenders are obsessed with the intent to harm their victim the restrictions imposed under conditional sentencing are not much deterrence, little deterrence if any at all.
The two fundamental reasons for sentencing are punishment and deterrence. Fair and just sentences are required to denounce unlawful conduct, deter offenders and others from committing criminal offences, separate offenders from society when necessary, provide reparations for damages and promote a sense of responsibility in offenders and an acknowledgement of the harm done to victims and the community.
What deterrence is there for a convicted drug trafficker granted a conditional sentence? The trafficker has already shown a preference for profit over the welfare of children and other users. What part of a conditional sentence could possibly convince that person to give up their trade? They are immediately back out on the streets on a conditional sentence. The best source of income they know is to continue pushing drugs. There is certainly no deterrence. As for fair punishment, is a ticket to freedom justifiable for an individual motivated by greed through the physically harmful exploitation of others? I ask that question to the government.
The sentences handed down in these cases and many others across Canada have created even more of a backlog in our justice system, as the legal wrangling ensues and appeal after appeal is initiated.
Keeping in mind what the former justice minister said about Bill C-41, making the sentencing process easier for the courts, and keeping in mind what the current justice minister said about leaving the subject of conditional sentencing up to appeal courts, listen to what the appeal courts have to say about conditional sentencing and parliament's role in it. An Ontario appeal court judge stated: “The new sentencing direction set by parliament requires that the courts give these provisions a large and liberal construction and wherever possible the court should resort to the community sentence option”.
“Parliament clearly envisioned that a conditional sentence would be available even in cases of crimes of violence that are not punishable by a minimum term of imprisonment. Parliament also contemplated that the conditional sentence would be available even where, absent appropriate controls, there may be some risk of reoffending”.
So much for the certainty in sentencing the justice minister claimed to have come with Bill C-41. So much for the current justice minister's belief that parliament did not intend for conditional sentences to be granted for violent and sexual offenders.
What we really have is a wide ranging legal interpretation of parliament's intent and tremendous ambiguity. My motion is a method to remedy this situation by instating more specifications in the Criminal Code on conditional sentencing. The B.C. court of appeal agrees. In a August 1997 decision the B.C. court of appeal ruled that violent offenders are entitled to serve time in the community under conditional sentences: “If parliament had intended to exclude certain offences from consideration under section 742.1, it could have done so in clear language”.
That is plainly and clearly an invitation for this House to enact clear language and to provide more certainty for conditional sentencing under section 742.1 of the Criminal Code. I believe we and this government have an obligation to do so.
Let us not get into blame and partisan finger pointing. Let us just fix it. We owe that to Canadians and we owe that to the victims of crime. Canadian courts are already bogged down in legalities and appeals. If it truly was the intention of Bill C-41 to relieve the confusion, we must ensure the conditional sentencing is not a further source of backlog in the courts.
Since parliament is responsible for initiating this ambiguity, parliament must also rectify the situation. This motion was to send a clear message that we have a flexible and responsive democracy. It is my hope that even though my motion has not been deemed votable other similar initiatives such as the motion debated by my hon. colleagues today, or even a legislative initiative by the government, will ultimately right this injustice.