Mr. Speaker, I am pleased to participate in this first debate on Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment). To put this debate in context, I will state the present situation in the Criminal Code so that people understand what we are talking about.
Current section 742.1 of the Criminal Code states:
Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a) imposes a sentence of imprisonment of less than two years, and
(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
Sentencing of an offender can sometimes create controversy in the wider community, especially if the main or only source of information is through media reports of crimes. Conditional sentencing became available in 1996 and we have now had roughly nine years of experience to draw upon in our assessments.
Generally speaking, the existing prerequisites in the Criminal Code section which were enacted should screen out the most serious cases being dealt with by means of a conditional sentence. There has been case law developed which has helped in guiding the use of conditional sentences. There are both punitive and rehabilitative objectives where conditions of house arrest and/or curfew are utilized.
The Supreme Court of Canada stated clearly in R. v. Proulx that there should be no judicial presumption for or against the use of conditional sentences for any category of offences. A conditional sentence need not be of the same length as a sentence of incarceration. I am told by counsels that invariably when someone receives a conditional sentence it is a longer period. This is real punishment served outside of a costly prison system. Now, in some cases where it is desired, offenders' movements are even tracked by electronic bracelets. This allows people to continue their employment while under house arrest, have a curfew, take counselling or provide for their children in the home. There are serious consequences when the wrong people are supervised inside a prison system. It has consequential effects on the lives of those most connected to those individuals.
In recent years it has been raised in the public discourse and with the federal, provincial and territorial ministers of justice, that while conditional sentences are an appropriate tool, in many cases there needs to be a definition of appropriate limits to the use of conditional sentences, particularly in respect of more serious and violent offences.
In October 2005 before the Liberal government was defeated, Bill C-70 had been introduced by the former minister of justice. I correct the information given by the parliamentary secretary that nobody was listened to. Actually, there was a bill tabled. Because the government was defeated, Bill C-70 was never debated in the House and it died on the order paper when the election was called. Bill C-70 took a different approach from that in Bill C-9 which we are debating today.
By way of comparison, former Bill C-70 was drafted to amend the Criminal Code to create a presumption that the courts shall not make a conditional sentence order when sentencing offenders convicted of serious personal injury offences as defined by section 752 of the Criminal Code, terrorism offences and criminal organization offences, or any other offence whose nature and circumstances are such that they require the paramount sentencing objective of the court to be the expression of society's denunciation. There were other technical provisions in the former bill which are not covered in the legislation presented by the new government.
I wanted to put the debate in context and make that comparison because the former bill was in the same subject area. It did have a presumptive focus as opposed to a mandatory focus, and it was in a narrower field.
I want to bring out some other issues that are more procedural in nature. They are important for people to understand.
The Liberal government usually sent bills to committee after first reading. This provided more scope for amendments at committee. People who work on the bills in committee may not get to debate them in the House. At committee people base their knowledge on the expert opinions of witnesses.
We have been advised by the Conservative government that Bill C-9 is to be voted on at second reading and then sent to committee. This is the prerogative of the government. Let us be clear that the former approach provided for a much more collaborative effort by all those concerned, and usually a more effective result.
After second reading, amendments to the bill can still be made at committee and in the House again at report stage. Subsequent votes can change the legislation by reducing the contents of the bill via amendments, if those amendments are in the same subject area as the principle of the bill.
The situation here is that in the realm of conditional sentencing, the government has put forward a bill that is very wide in scope. There is still the power with the parliamentarians working in the committee, and after listening to the experts in the field, to narrow the scope of the bill.
I believe that given our former bill on the same subject and the communiqué from the meeting of the federal, provincial and territorial ministers of justice, this is a valid area for some change in the law. There may be some differing opinions. I would be happy to receive those opinions. Those who are most knowledgeable should submit the names of their organizations to the clerk of the justice committee so that we can hear the voices of those for and those against the bill.
It is time to do evidence based law. We should not play politics with the Criminal Code of Canada. It is too important. There is no one party that is the law and order party. We all want safe communities. We all want justice to be fair, but we also want it to be effective.
Bill C-9 amends section 742.1 of the Criminal Code to prohibit the use of conditional sentences for offences under the Criminal Code and the Controlled Drugs and Substances Act and other federal statutes punishable by a maximum sentence of 10 years or more for those that are prosecuted by indictment. It seems to be a simple, and I stress simple, way to go about doing business.
To give context to this particular legislative approach, if this had been in effect in 2003-04, approximately one-third of those who received a conditional sentence would not have been eligible. The judge's discretion would have been removed to provide this tool. We would have been paying for the incarceration of approximately 5,480 additional people in this land.
Some offences which fall under the scope of this bill are hybrid in nature. This means that the crown can go either by indictment, or if it is a lesser offence, the crown can choose the summary aspect of the bill and go lower. My personal concern is that there will be those cases that fall in between where the conditional sentence was the most appropriate sentencing tool because it would have been a more complete sentence for reasons I will explain later.
In fairness, it should also be noted that the courts would still have the option to use probation orders for the offences barred from receiving a conditional sentence of imprisonment where it was felt that the circumstances warranted it. This in reality still limits the sentencing judge's options.
Think of the case of a welfare fraud parent, who I am told by defence counsel is usually a woman. She would more likely end up in jail where before, a conditional sentence would often be used. The situation would likely escalate into child welfare and social services becoming involved because the children has been left without a parent to support and care for them.
I think we have to understand the reality of what could potentially occur if the non-violent crimes are included within the scope of this bill. A judge already has to think about whether there is a safety issue for the community. There is already a process for a judge to go through in imposing the conditional sentences.
These are the people who do not read the newspapers about the cases. These are the people who have to make decisions in that courtroom. They listen to the evidence that is brought forth properly, listen to the parties, both the prosecution and the defence, hear all the information, hear all the facts of the case, and then use their judgment. They are judges. We pay them to judge. We do not give them strict guidelines, so they have no authority to go outside of the strictness of controls.
Obviously, the government should justify and explain to Canadians the reasons for including so many more offences that would not qualify for the conditional sentence option. The government seems to be prepared to fill more prison cells and take this sentencing option from the judge who hears the case, as I have said, and the specific facts and circumstances.
The question to be answered is, which offences should be included in this bill and get passed, and which should be excluded, and let us hear the reasons why and why not? We have not heard a lot of explanations. We have heard a lot of rhetoric, but we have not heard any explanation or information or evidence-based material other than that this has been requested by some associations. A lot of people want a lot of things. They generally do not get it unless they can prove there is a real need and there are good reasons for this approach over some other approach.
Obviously, and I give the government credit for this, it has backed down somewhat by not abolishing conditional sentencing completely and the government, therefore, has acknowledged that there is a role for conditional sentences in the Canadian legal system.
In almost all the cases, the conditional sentence orders contain restrictive conditions of house arrest and/or curfew, often both; often community service; mandatory treatment and counselling; and often other conditions are tailored into the sentence and can be very effective in preventing repeat offences while still having the person exist safely inside the community with the deterrence of having the house arrest, et cetera. It is not about being hard or soft on crime. It is about a sense of effective, just sentencing in Canada for those who go outside our law.
I am told that all provinces and territories have expressed some concerns about the costs that they would incur if this bill goes through as is in hiring additional prosecutors, court and correctional staff, and building new prisons.
We saw a budget that put money forward for, effectively, more prison cells but very little detail. We do not have that information. We hear of the generalities, but I know that when I and many of my colleagues vote, we will need more information before we cast such an important vote on such important changes.
The government has not properly, or effectively, outlined its plans on what assistance, if any, would be provided to those jurisdictions affected. Obviously we know there would be increased costs. Conditional sentences currently make up approximately 5% of all Criminal Code sentences, so conditional sentencing is not a wide open, used in every case scenario.
The most frequently imposed sentence is probation which, we are told by justice officials, is approximately 46%. I did some research because I thought that number was a little high on its own. Then I understood from others that probation is usually in addition to most jail sentences under two years. Probation is part of another sentence; for example, jail plus probation, fines plus probation, or probation as part of any intermittent sentence, such as somebody who works outside the house and goes into an imprisonment situation on weekends. Even on conditional sentences, probation is often added at the end of the conditional sentence term. It is a good combination type of sanction that is widely used.
Before we go adjusting the discretionary tools that our justices and judges across this country have to work with to our best result, we have to understand the tools they have and not just say that this is bad or that this should not be used. We have to understand what we are talking about before we change it.
The purposes of the principles of sentencing are contained in section 718 of the Criminal Code which came into effect with the last government in 1995. This section is not amended in this bill and that is important. This is something positive that the government has not seen fit in changing this section and to leave this as is because this section sets out the fundamental purposes for sentencing, the objectives and what sentences should attempt to achieve.
In brief, for those who have never sat down with the Criminal Code and read through the section, these objectives are denunciation, general and specific deterrences from the crime, separation of offenders from society with a caveat where necessary, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim or victims and to the community.
When Parliament adopted this section of the Criminal Code, it mandated the expanded uses of restorative principles in sentencing because of the general failure of incarceration to rehabilitate offenders and to reintegrate them into society. Members should remember that no matter how long we make the sentence, people still come out into the community and at the end of their sentence we want them to be better functioning, so that means they have to have programming and other training inside the system, and we need to be realistic.
Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles are contained in section 718.2 and there are other specific sections on sentencing relating to children. The case law continues to help enunciate and guide the courts in their decision making.
A change in section 742 will obviously have impacts in a number of areas. There will be costs, processing, and personnel impacts. We will need to hear from witnesses who are knowledgeable about these impacts, those impacts that are intended by the government and perhaps more importantly those which are unintended on these proposed reforms.
Will there be a need for more legal aid? I have met with legal aid representatives in my riding and know that to get legal aid in Ontario there has to be a substantial likelihood of incarceration. Will the justice system itself be able to accept this greater load of trials and incarceration?
Most of the debate and inquiries for the government will be the inclusion of offences that although serious are non-violent. No full explanation has been provided for these additions. The bill appears to use the equivalent of a legislative sledge hammer where perhaps what is required is the equivalent of a legislative scalpel: fine tuning and amending where necessary and where effective.
Our party wants proper evidence brought before committee. We do not vote for blind ideology but rather for real improvement. We will await the evidence which can be brought forward to understand the need, the relevance, the impact, the cost, and effect of these changes in the area of conditional sentences.
We do not accept the bill as currently constructed, but do see merit in further work and amendments in this area. We look forward to constructive work ahead with time to objectively listen to Canadians, the stakeholders and the experts in this specialized field. We hope and trust that all members of the justice committee of the House will work in this constructive manner.
The government should tell us why the sections such as forgery, drawing documents without authority, are captured in the net. It is much easier to understand why assault offences causing bodily harm or with a concealed weapon will be in the category. We also need to understand whether these changes have a different effect in different populations where the government has been trying to embrace a restorative justice principle.
Flexibility is being curtailed here. Let us hear the government's justification for these broad changes. We must be careful to ensure that the changes do not conflict with the sentencing principles articulated clearly in the Criminal Code. Section 718 states:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives.
I look forward to it. I believe we can have some constructive dialogue and work on the bill. The provisions of the bill can be narrowed if the evidence we hear indicates that. We intend to listen and to work with other parties to create some changes that should be beneficial and constructive in looking at conditional sentences.
We do not wish to overreach and create unnecessary hardship and expense where not warranted. We do not believe as a party that simple black and white messaging to the public takes precedence over proper, nuanced legislative initiatives.