House of Commons Hansard #28 of the 39th Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was crime.

Topics

Criminal CodeGovernment Orders

10:55 a.m.

Provencher Manitoba

Conservative

Vic Toews ConservativeMinister of Justice and Attorney General of Canada

moved that Bill C-9, An Act to amend the Criminal Code (conditional sentence of imprisonment), be read the second time and referred to a committee.

Criminal CodeGovernment Orders

11 a.m.

Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, I stand today to speak to Bill C-9, an act to eliminate the availability of conditional sentences for serious offenders.

Bill C-9 flows from the government's clear commitment to Canadians to ensure that house arrest is no longer available for those who commit serious or violent crimes. As stated in section 718 of the Criminal Code, the fundamental purpose of sentencing is “to contribute... to respect for the law and the maintenance of a just, peaceful and safe society”.

Conditional sentences were never intended for serious offences. The conditional sentence of imprisonment is currently available for offenders sentenced to a term of imprisonment of less than two years and for offences not punishable by a minimum term of imprisonment.

In order to grant a conditional sentence, the court must also be satisfied that sentencing the offender to serve time in the community is not inconsistent with the fundamental purpose of sentencing or with sentencing objectives, such as general deterrence, denunciation and separation of the offender from society. The court must also be satisfied that allowing the offender to serve his or her sentence in the community will not endanger the safety of the community.

However, in recent years we have witnessed far too many instances of improper use of this type of sentence. The public has had a great deal of concern about cases in which persons convicted of very serious offences have been permitted to serve their sentences in the community, often in the luxury of their own homes and with minimal safeguards to ensure compliance with the conditions of their sentence. Canadians find it hard to understand how such sentences comply with the fundamental purpose and principles of sentencing.

As a former justice minister said in debates about conditional sentencing on April 10, 1997:

--all of us believe that anyone who commits a serious violent crime should be imprisoned as a penalty for that kind of crime.

Indeed, conditional sentences were never intended for use in cases of serious criminality.

As the Prime Minister stated on April 3, 2006, before the Canadian Professional Police Association:

And the safe streets and safe neighbourhoods that Canadians have come to expect as part of our way of life are threatened by rising levels of crime. Drug crime is on the rise. Gang crime is on the rise. And the homicide rate is on the rise as well.

That is exactly why during the last general election, this party, the Conservative Party, committed to end the availability of conditional sentences for those offenders convicted of serious crimes.

Bill C-9 would end conditional sentences for offences prosecuted by indictment and punishable by a maximum of 10 years or more, both under the Criminal Code and the Controlled Drugs and Substances Act. The implementation of this threshold will serve to capture the kinds of offences which deserve real punishment. It will also prohibit a number of serious property and administration of justice offences from being disposed of by way of conditional sentence.

In far too many cases, accused persons who have engaged in significant frauds, often involving breaches of trust, have walked out of court into relatively comfortable house arrest situations. These offenders would no longer have that option available to them.

The bill is based on the principle that conditional sentences ought to be used only in situations for which they were originally intended. This is for relatively minor cases, cases deserving of lenience and cases which do not offend the community's sense of justice.

Conditional sentences would no longer be available for sexual offences, such as sexual assault and aggravated sexual assault. Most sexual offences committed against children are already covered by mandatory minimum sentences because of the passage of Bill C-2 in the last Parliament. Conditional sentences would also not be available for other serious personal injury offences, such as impaired driving causing bodily harm or death and serious property and administration of justice offences, like robbery, arson and theft over $5,000.

No longer would sentences be available for very serious crimes, such as criminal negligence causing death, manslaughter, impaired driving causing death, aggravated assault, aggravated sexual assault, sexual assault with a weapon, kidnapping, attempted murder and torture. Until this bill is made law, each and every one of those heinous crimes could, according to our current law, result in a conditional sentence or house arrest.

When was house arrest ever appropriate in dealing with a person who uses a weapon in committing a sexual assault on another human being? Never, and it is time we recognized that.

This government has done more than simply recognize and talk about the problem, as our predecessors did. With the introduction of Bill C-9, we have taken steps to solve the problem once and for all. We call on all parties to join with us in working toward a system of justice that Canadians can believe in, a justice system that Canadians can have faith in because they know it is serving their best interests.

This bill will look at crime from the perspective of the victim: the man, woman or child who has suffered at the hands of another. For too long have we sacrificed the protection of victims in favour of lenient sentences for serious offenders. With the passage of Bill C-9, this trend will come to an end.

We propose to restructure the conditional sentence regime with the safety of Canadians top of mind, not as an afterthought. In the few circumstances where an offender has committed a serious criminal act and the court truly believes that greater leniency is appropriate, it can still achieve this end through a suspended sentence or probation. However, the government sees those responses as being appropriate in only a limited number of circumstances.

The government is also committed to addressing the problem of drugs in our community. Serious drug offenders, be they producers, traffickers or importers, are responsible for the destruction of the lives of thousands of citizens, their families and the communities in which we all live. This devastation must be met by real penalties, namely, the separation of individuals who prey on their fellow citizens from the rest of society. Those who manage the trade of hard drugs like cocaine and heroin have no place on our streets.

According to the latest data available from the Canadian Centre for Justice Statistics, between 1994 and 2004 the number of drug offences increased by a full 61%. In 2003-04, 34.6% of drug trafficking convictions resulted in a conditional sentence of imprisonment. That is simply not acceptable. That is why Bill C-9 would also eliminate the availability of conditional sentences for serious drug offenders.

The imposition of a conditional sentence for a serious drug offence would be inconsistent with the fundamental purpose, principles and objectives of sentencing. Conditional sentences do not provide reparations for the harm done to the community by the drug offender and do not adequately promote a sense of responsibility in such offenders. The imposition of conditional sentences in cases of serious drug crime is not proportional to the degree of responsibility of the offender and the seriousness of the offence.

It is worth mentioning that in 2003-04 conditional sentences represented approximately 5% of all sentences handed down in Canada, or a total of 15,493 sentences. In terms of the overall impact of Bill C-9, it is expected that approximately one-third of those would be affected by this sentencing reform.

The bill targets indictable offences. In the case of hybrid offences, that is, those which can be prosecuted by way of summary conviction or by indictment, conditional sentences will remain an option where the Crown chooses to proceed by way of summary conviction. Police and prosecutors will have to exercise their discretion to ensure that relatively minor offences are prosecuted appropriately.

These are changes we have heard being demanded by provincial attorneys general, mayors, victims' groups and law enforcement authorities from across Canada. These are the people on the front lines of crime control. They have been clear in their calls for common sense justice and the need to punish serious crime with penalties that are more severe than house arrest.

We acknowledge concerns that Bill C-9 may increase correctional costs. These cost increases will vary, depending on the percentage of offenders who receive jail sentences and the average length of those sentences. As the Minister of Justice explained during his news conference on May 4 following the tabling of the bill, the costs related to Bill C-9 could be covered by unallocated funds given to the provinces as a result of equalization payments.

It is the belief of this government that a properly structured conditional sentence with tailored conditions is an appropriate sentencing tool in some cases. Conditional sentences are not, however, an appropriate tool in the most serious cases.

This sentencing reform does not purport to modify or change the fundamental purpose or principles of sentencing contained in the Criminal Code. However, with respect to serious matters, it implicitly requires courts to focus principally on the objectives of denunciation, general deterrence and incapacitation.

These reforms would help keep our streets safe by ending the use of conditional sentences, including house arrest, for serious offences. The reforms contained in this bill would ensure a cautious and more appropriate use of conditional sentences, reserving them for the less serious offences that pose a low risk to community safety.

Not only would this legislation make practical, substantive amendments to the Criminal Code, it would improve public confidence in the use of conditional sentences and sentencing generally, a public confidence that we have seen lost recently. Justice will be done and it will be seen to be done. Using conditional sentences only in appropriate cases not only will strengthen public confidence in the administration of justice, but it will serve as a warning to those who engage in serious crime that if they offend they will be dealt with firmly by Canada's criminal justice system.

Criminal CodeGovernment Orders

11:15 a.m.

Liberal

Keith Martin Liberal Esquimalt—Juan de Fuca, BC

Mr. Speaker, I appreciate the comments by the parliamentary secretary on this very important subject. All of us are affected by this in our communities and we all have had our constituents address this subject.

My first question for the parliamentary secretary relates to the issue of drugs. His leader has repeatedly mentioned on the record his aversion toward safe injection sites, and he also has mentioned looking at people who have substance abuse issues as committing a criminal offence rather than having a medical problem. Does his party believe that people who have substance abuse problems have a judicial problem rather than a medical problem? As for individuals who are caught with possession of soft drugs like marijuana, does the government want to pursue that through the courts as a non-indictable offence?

My second question relates to the issue of conditional sentencing. Does my colleague believe that crown prosecutors will pursue more non-indictable offences, taking an offence to a non-indictable stage and trying to pursue a summary conviction as opposed to continuing with an indictable offence if the judge feels obligated to force them to engage in a penalty that may not be warranted under the circumstances?

Criminal CodeGovernment Orders

11:15 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Mr. Speaker, Bill C-9 targets the most serious offences, including offences under the Controlled Drugs and Substances Act, that carry a minimum penalty of 10 years. Less serious offences are not covered by this bill and conditional sentences are still available where they had been in the past.

To be perfectly clear, with respect to serious drug offences such as trafficking and production of cocaine, Canadians have said that they do not want these offences punished by conditional sentences any more. They do not want people who are causing a scourge upon their own communities to serve their sentences in those very same communities with the same networks that they had before they were sentenced.

Police officers have been telling us that when it comes to drugs, they do the hard work, the heavy lifting. They process an investigation, make an arrest and get someone to trial, only to see a serious offender, someone involved in the production or trafficking of drugs, serve his time with a conditional sentence. That is what this legislation is targeting: the most serious offences under our Criminal Code.

On the issue of indictable versus summary conviction and hybrid offences, we feel that prosecutors will use their discretion to prosecute serious hybrid offences by indictment. When there is a conviction under that process, these individuals will no longer serve their sentences in the community. They will serve them in jail. However, on some of these hybrid offences, if prosecutors do choose to proceed by way of summary conviction, that option is still available where it is felt, at the discretion of the prosecutor, that it is the most appropriate way to proceed.

To be clear, the overall strategy of Bill C-9 is to target serious crime. We read about serious crime every day in our newspapers from coast to coast to coast, and we hear on the radio and television about someone who has committed a serious offence against another member of society getting what Canadians call a slap on the wrist.

If we talk to Canadians in a Tim Hortons, for example, they will tell us that people are getting a slap on the wrist for serious crimes. There is no denunciation in that. There is no deterrent in that. It has been proven to be ineffective. We want to send a message that we take crime seriously. Canadians sent us that message and we are delivering on it.

Criminal CodeGovernment Orders

11:20 a.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, as a follow-up to the last question, is the parliamentary secretary really serious when he says that the government is targeting only serious crimes?

I agree with him that there is some concern in this country over the use of conditional sentences when it comes to violent crimes. There have been several--although not many--notorious cases that have hit the front pages of our papers, but as I look at the list prepared by the Department of Justice, I see that there are close to 20 charges that have nothing to do with violence and have a maximum penalty of 10 years. Therefore, conditional sentences will no longer be necessary. Some are: fraud over $5,000, the filing of a false prospectus, wilful mischief over $5,000, wilful mischief of other property, theft from the mail, false pretense, and obtaining credit by false pretense. All of these crimes will no longer be available for those sentences.

I am asking the parliamentary secretary if he does not think that in fact this legislation has overreached its boundaries. Perhaps the government should be considering eliminating a number of those less serious offences from the consequences of the bill.

Criminal CodeGovernment Orders

11:20 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Mr. Speaker, the hon. member asks a good question, but to really measure what the government is trying to do, we also have to talk to the victims of some of those crimes the member named.

Canadians sent the overwhelming message that they did not want serious crime to be punished by way of a conditional sentence. For many of the crimes the member has named, there is a sentence of 10 years or more as a maximum. Many of the offences with sentences of a maximum of 10 years or more can also be prosecuted by way of summary conviction. There is still an availability for a conditional sentence where the prosecution, in its discretion, has decided to proceed by way of summary conviction, but to be clear, we have to draw a line somewhere. In our Criminal Code, we have sentences that have maximums of 5 years, 10 years or 14 years. For some it is a life sentence.

We have drawn a line at 10 years. What we have said is that in our Criminal Code where we have designated serious offences, offences punishable by a term of imprisonment of up to 10 years, the government is going to take that seriously, because the intent of legislators and the intent of those who drafted our Criminal Code is being undercut by the over-application of conditional sentences.

Canadians need only look at the articles in the newspapers. The news stories, and I would say there are more than a few, show a great many instances of someone who has no business being in a community yet who is serving a sentence in the community, someone who has victimized members of that community and who may have victimized youth in that community.

Canadians have sent a very clear message that they do not want serious offenders serving their time in the community. The government has drawn a line at those offences that our Criminal Code designates serious offences with a maximum of 10 years' imprisonment available. We have said that conditional sentences will no longer be available for those crimes.

Criminal CodeGovernment Orders

11:20 a.m.

Liberal

Keith Martin Liberal Esquimalt—Juan de Fuca, BC

Mr. Speaker, I want to go back to a question I asked the parliamentary secretary earlier. It dealt with the issue of the simple possession of soft drugs. Will his party support decriminalization of the simple possession of marijuana given the fact that the application of this law across the country is extremely varied? It is inhumane when individuals who are 18 or 19 years old are picked up, prosecuted and receive a criminal record that will affect them for their entire lives. This has even been stated by such varied groups as various police groups and the Canadian Medical Association.

My second question deals with prosecution. As the parliamentary secretary knows, what charges are to be laid varies across the country. In some jurisdictions, police forces lay the charges. In others, the crown prosecutors do. I would like to know from the hon. member how the government is going to square this circle in terms of ensuring that there is homogeneity across the country in that charges to be laid will fall either on the arresting officers or on the crown prosecutors.

Criminal CodeGovernment Orders

11:25 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Mr. Speaker, as the hon. member knows, various provinces have carriage of Criminal Code offences and different provinces take somewhat different approaches. Bill C-9 is providing direction that when someone is convicted of a serious offence under the Criminal Code, has victimized another Canadian, we as a government and as a society are taking that seriously and people who commit a serious offence will be serving time in prison and not in the community.

This bill deals with the most serious of drug offences, including the production and trafficking of drugs like cocaine. It sends the message that those who engage in those activities will be serving a sentence in prison.

Criminal CodeGovernment Orders

11:25 a.m.

Conservative

Ron Cannan Conservative Kelowna—Lake Country, BC

Mr. Speaker, because of my nine years of experience in local government and chairing the Union of B.C. Municipalities Justice and Protective Services Committee, I know that for local governments, policing is the number one budget item, as health care is for the provinces. In speaking with local government, the superintendent of the RCMP, and crown prosecutors, our community fully supports adjustments to the Criminal Code.

What other organizations has the parliamentary secretary heard from that support the need to adjust the Criminal Code so that we do not have the catch and release program that is in our communities today?

Criminal CodeGovernment Orders

11:25 a.m.

Conservative

Rob Moore Conservative Fundy Royal, NB

Mr. Speaker, we have heard from a great many groups, such as the Canadian Professional Police Association and victims groups. Advocates for justice have been saying for years that a change is needed and that serious crime needs to be treated in a serious manner. Their pleas have been falling on deaf ears.

This new government has been listening to those who are concerned about victims of crime. This bill sends the message that if people commit a serious crime, they will not be serving their sentences in the luxury of their own homes.

Criminal CodeGovernment Orders

11:25 a.m.

Liberal

Sue Barnes Liberal London West, ON

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.

Criminal CodeGovernment Orders

11:45 a.m.

NDP

Jean Crowder NDP Nanaimo—Cowichan, BC

Mr. Speaker, I was interested in the hon. member's comment about justification and I want to go back to a Canadian Criminal Law Review. In volume 8, 2004, the reviewer spoke about the fact that because of the relatively recent introduction of conditional sentencing, there were actually very few academic studies that have been done around the impact on the criminal justice system. The article goes on to indicate that there is a real lack of sentencing statistics in Canada, even with the adult criminal court survey of Statistics Canada.

I would like to ask the member, what additional kind of information is critical for members here to examine before making such a radical change as is being proposed with this conditional sentencing bill?

Criminal CodeGovernment Orders

11:50 a.m.

Liberal

Sue Barnes Liberal London West, ON

Mr. Speaker, I appreciate the comment and I too like to make my decisions based on evidence.

Things are not black and white. We are seeing a government that is focusing on giving simple messages as opposed to looking at the detailed study. Let us hear from those people who have done the studies, such as the academics, if there is research work. Let us take a look.

Nine years is not a long time. My party agreed there was some tweaking to be done, but I would like to hear from some of those jurisdictions that will be affected, the ones who are asking for it and certainly the ones who are concerned about it. I know the Minister of Justice in Saskatchewan has made some public musings about how this may affect certain populations within his province. There are concerns, but they are not even voiced as concerns. It is just a lack of information about how this will impact on costs.

We can talk to people. There are people who are coming to me from the victims' groups, from the families of the offenders, and from the people who have dealings in the prisons as their business, the societies, whether for men or women, that regularly interact with the prison population and have a good understanding of it. We need to hear from them.

Personally, I would like to know whether or not the Minister of Justice gave this bill for consultation before he tabled it, showed it to the ministers, or whether he relied on the past territorial justice ministers meetings and conversations. I know he said that he had conversations with the various ministers of justice after the fact. I just wanted to know whether this bill was actually run by them because I think they would be surprised at the severity of what is contained here.

It is going to take a lot of time to carefully go through the sections of the Criminal Code offences that will be affected by this bill, as well as the affected sections in the Controlled Drugs and Substances Act. It is work on which I trust the party opposite, the government, will work together with the parties on this side of the House and opposition parties. In fairness to the complexity of the bill and the impact it is going to have, the bill itself is an easy read when it says anything over 10 years. That is not complex. What is complex is the impact and how it will affect all of our systems.

We have judicial rulings, cases like Askov, where if things are bogged down too much and there is a delay in bringing something before the courts, it is going to get thrown out because of that delay. We cannot just affect one situation and not realize it has impacts.

I am absolutely convinced we do not have enough money in the criminal legal aid system right now. There is no mention of it, nothing was allocated, and when I asked the justice minister about criminal legal aid at committee when he appeared before us, the response was that we were having discussions. We cannot change this law without having some things in place so people can cope with it because then we are going to have real problems.

My concern is that on some very serious things, prosecutors will opt for going by way of summary conviction, where if there are some options of sentencing in the conditional sentencing, such as in some fraud situations or cattle rustling or whatever particular section of the code is included, there might be a better way.

We are not going to play politics. We are going to work with you if you will work with us. If you will not work with us, we will work with the other opposition parties, but I do not think this bill will pass in its present form.

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11:50 a.m.

Conservative

The Acting Speaker Conservative Royal Galipeau

The hon. member for London West will want to address her remarks to the Chair.

The hon. member for Burlington.

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11:50 a.m.

Conservative

Mike Wallace Conservative Burlington, ON

Mr. Speaker, I listened carefully to the member's dissertation on the bill. I was encouraged by her comments in getting it to committee and looking at amendments that may possibly be made to it. However, I would like some clarification, if possible.

Will the member opposite vote for the bill in its present state and get it to committee? I do not understand whether the Liberals are supporting getting it to the next level. I would appreciate some clarification on that.

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11:55 a.m.

Liberal

Sue Barnes Liberal London West, ON

Mr. Speaker, it would be a lot easier if the government chose to do this after first reading. It clearly has that right. Because the Liberal government had a bill that would have tightened up some sections, Liberals believe parts of the bill have validity and we will take it to committee.

My suggestion is to deal with it properly in committee. We have probably less than three and a half weeks left in the House. The justice committee currently has business before it. When the House reconvenes in the fall, there will be ample time for the parties affected to do a lot of work for the government to put together its case properly.

I will not speak on behalf of everybody in my caucus, but at this point in time, as the justice critic, I personally intend to send it to committee so further work can be done. However, I will not accept the bill in its full form. I do not believe, for instance, that non-violent offences should be part of the bill.

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11:55 a.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, I hope that my colleague from London West will stay with us just a few moments more. I am pleased to speak in this House and I would like my colleague to know that over the past 26 years, I have been a legal aid lawyer as well as defence counsel in criminal law for the last 10 years. As a criminal lawyer, I regularly argued cases in court, trying to convince the court to accept my arguments. I will attempt the same here, Mr. Speaker. If I slip up, as I probably will, and call you “Your Honour”, please forgive me. I hope that my argument—and I believe it will indeed be an argument—will enable us to address this very important debate in the House today in an orderly manner, without the interference of court sanctions.

The Bloc Québécois finds it difficult to vote in favour of this bill. We will therefore vote against it, for a number of reasons I will explain. This is a very difficult bill that reduces the number of options available to the court when sentencing a person.

I have with me the bible that I kept with me every day I argued a case in court a while ago. I keep up to date on what is going on in criminal law, so I hope you will permit me to read section 718 of the Criminal Code. This section is clear about the objectives of sentencing, which are:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harmcom done to victims or to the munity; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

The objectives and principles that a judge must be guided by during sentencing are clear. The judge must individualize the sentence. The individual that appears before him must receive a sentence adapted to the crime committed. This is not what Bill C-9 proposes. The bill would increase the length of imprisonment for dozens, possibly around one hundred new offences. One example comes immediately to mind. Someone charged with impaired driving causing bodily harm can be sentenced to a maximum of 10 years. Under Bill C-9, a prison sentence would automatically be imposed. This is unacceptable.

If my colleagues across the floor listen to my entire speech--and the brilliant interpretation being provided--they will understand that such a sentence is unacceptable for several reasons. First of all, in a number of major decisions, the Supreme Court has stated that the primary principle that must apply during sentencing is that of individualized sentencing. That would be lost with this bill. In fact, Bill C-9 would put an end to individualized sentencing.

I would go even further. Not long ago, the Supreme Court had to rule on conditional sentences. If the members across from me are listening carefully, they will recognize a decision handed down by the Supreme Court in 2000. It was a landmark decision that has been continuously applied by the courts ever since. It very clearly explains the criteria that must guide the court when it is about to impose a conditional sentence.

It should be noted that conditional sentencing is neither a policy nor an obligation. It is an additional power the court has when handing down a sentence. It is part of the wide range of sentencing possibilities the court has when it is judging an individual or handing down a ruling that will have a clear impact on an individual's life, family and associates.

The members opposite should listen carefully to what I am about to say. Everyone knows that a Supreme Court ruling is quite serious.

In R v. Proulx, the court said that:

—the provisions on conditional sentencing were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. A conditional sentence should be distinguished from probationary measures.

Probationary measures are sentencing measures with probation.

Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.

That is the intention.

—conditional sentences should generally include punitive restriction of the offender's liberty. Condition such as house arrest should be the norm, not the exception.

Having been a litigator and defended clients in all sorts of cases, I can assure you that a sentence of detention in one's own place of residence is quite often more restrictive than a sentence of detention in a penitentiary or a provincial prison. For example, when an individual receives a conditional sentence, he generally receives calls at all hours of the day and night to check whether he is home. I will come back to that in a few moments. What is more, he is monitored regularly by the court.

That is what the Supreme Court had to say about it, again in Proulx, a very important case that my colleagues opposite and the hon. Minister of Justice have read. The Minister of Justice was Manitoba's Attorney General. I would be glad to discuss this case with the hon. Minister of Justice in this House. We talked about it last year, the hon. Minister of Justice and I, when we were both on the justice committee.

The Proulx decision states:

—the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.

The Court must ask itself this question.

—a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.

So said the ruling by the honourable justices of the Supreme Court. Generally, what this means—I have experienced this myself and my colleague the hon. Minister of Justice may perhaps also confirm it since this occurred in the province of Manitoba—is that the court first asks itself whether or not the individual is eligible. If a sentence of incarceration is required, then the answer is yes. The court then decides that the offence committed involves and requires incarceration. Then it asks itself if the incarceration must be served in a penal institution or if the individual may serve the sentence at home or elsewhere. It is at that point that it must pose the question.

Usually, the judge considers that the offence deserves a sentence of three years or 30 months; however, if he wishes the offender or the accused to serve the sentence in the community, he lowers it to two years less a day.

The Supreme Court ruling states, and I quote, “Two factors should be taken into account: (1) the risk of the offender re-offending;” This first factor bears the number (1). It is followed by factor number (2). I have never seen (2) precede (1). Thus, the first question that the court asks itself is whether or not there is a risk of the accused re-offending.

I continue to quote, “(2) the gravity of the damage that could ensue in the event of re-offence”. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals

The Supreme Court went so far as to state and repeat—and I will repeat here in this chamber— that there is an inviolable principle in our criminal law and that principle is the individualization of sentences.

This is not what the hon. Minister of Justice has in mind in introducing Bill C-9. I took a quick look at the crimes covered by this bill. There are about 100 in total, and all are punishable by 10 years in prison.

The case that comes to mind and the one I had argued, as I mentioned earlier, was impaired driving causing bodily harm. Under this bill, the judge will have no choice but to impose a sentence of imprisonment of more than two years, and that is extremely dangerous.

The Proulx decision is very important. I read it through, and I would again invite the hon. Minister of Justice to carefully reread this important decision. Here is another excerpt from the decision:

The [conditional] sentence imposed by a trial judge is entitled to considerable deference from appellate courts...Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.

Today, we are faced with an extremely important societal debate. The debate over Bill C-9 is a societal debate. This bill will be a catalogue of prison sentences. The crimes will be in the catalogue and will be punished accordingly. This is not what the Supreme Court intended. The Supreme Court, and society in general, want individualized sentences that take into account the individual's character, the risk of reoffending and the seriousness of the crime.

When these distinctions are made, then we must look at how the court will punish the individual.

Clearly, Bill C-9 is a move toward punitive justice, not rehabilitative justice. Today, sentences must be individualized. The Bloc Québécois believes in rehabilitative sentences much more than repressive sentences. Bill C-9 will create repressive sentences.

It is true that crime has increased in some major cities.

For the first time, however, since the introduction of conditional prison sentences in 1996, Statistics Canada did a study in 2003-2004, which showed that the total number of offenders liable to a new conditional sentence order had decreased, falling from 19,200 to 18,900, a decline of about 2%. Still, we must pay attention. In spite of this decrease from the previous year, the same study reveals that conditional sentences have a major effect on the rate of new detentions, which has decreased by 13% since the introduction of conditional sentences. As a result of this measure, some 55,000 fewer offenders were sent to prison.

With all due respect for the hon. Minister of Justice in this House, he cannot contradict this. Last year, he sat on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness as the Conservative opposition critic. When he tried to table this same bill, I asked him to provide us with figures showing that the crime rate had increased since conditional sentences began to be given. It was not so; the number of offenders had decreased.

I will go a bit further. This is a rather special sentence. The administration of these sentences, especially conditional ones, falls within provincial jurisdiction because they are sentences of two years less a day. So what will happen if this bill comes into effect? There will be an increase in prison sentences. And who handles sentences of two years less a day, to use the legal jargon? It is the provinces. It is obvious then that passing this bill will entail additional costs, an increase in the financial burden of the provinces. There are two problems. One, sentences are no longer individualized. Two, we switch from the possibility of rehabilitation to repression. Thus, we increase the financial burden of the provinces, which will have to deal with these prison sentences.

I will add something else. Bill C-9 implies the building of more prisons. It seems, however, that on an individual basis (the figures confirm this) it is much more costly to keep offenders in prison than to keep them under supervision in the community. We now have figures to support this. In 2002-03, the average annual cost for a prisoner in a provincial institution was $51,450, compared to $1,792 for supervision of an offender in the community.

I would still have lots to say, but I see that I have less than a minute left. So I will say this. We must at all costs avoid having this bill send the wrong signal. I understand the intention of the Minister of Justice to send a clear signal. With all due respect, I nevertheless think that this is not the right message.

We could send guidelines to the judges. Perhaps not enough prison sentences are given for different crimes. The appeal courts are there, however, to rectify what might be a “bad” decision or a decision that does not comply with the criteria of the Supreme Court.

The evidence may be seen in many cases. Mr. Brault has just been sentenced, and we have just seen that there are other sentences. In fact, the Court of Appeal of Quebec has just declared itself in favour of the fulfillment of prison sentences, when such sentences should have been handed down in the first instance.

Let our courts and judges do their job. They are quite capable. Let us give them some clearer guidelines, though.

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12:15 p.m.

Fundy Royal New Brunswick

Conservative

Rob Moore ConservativeParliamentary Secretary to the Minister of Justice and Attorney General of Canada

Mr. Speaker, consultations have taken place among the parties and I believe you would find unanimous consent for the following motion. I move:

That the Minister of Justice be deemed not to have spoken to the second reading motion of Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment).

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12:15 p.m.

Conservative

The Acting Speaker Conservative Royal Galipeau

Does the hon. parliamentary secretary have the unanimous consent of the House to move the motion?

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12:15 p.m.

Some hon. members

Agreed.

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12:15 p.m.

Conservative

The Acting Speaker Conservative Royal Galipeau

The House has heard the terms of the motion. Is it the pleasure of the House to adopt the motion?

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12:15 p.m.

Some hon. members

Agreed.

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12:15 p.m.

Conservative

The Acting Speaker Conservative Royal Galipeau

(Motion agreed to)

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12:15 p.m.

Bloc

Pierre Paquette Bloc Joliette, QC

Mr. Speaker, I would first like to congratulate my colleague on his speech.

I was told that Bill C-9 was relatively complex and technical. From what my colleague says, the issues of the bill are very clear. I would like to speak to them, because he has made it clear.

The government is denying the judiciary the option of conditional sentencing: it is creating an arbitrary list of crimes that will automatically result in prison terms.

As my colleague put it so well, they are increasing punishment with little thought to rehabilitation. A society's prime objective should be to ensure the security of its citizens. We in the Bloc Québécois support this objective.

The government is also going to allocate more resources to this repressive system. The provinces will be obliged to invest more in building prisons. This, too, will be to the detriment of prevention.

Perhaps I could suggest to my colleague that there is a certain view of society behind Bill C-9? It is not unlike that of the current administration of the United States. According to this vision, security is achieved less by social programs, the fight against poverty and the creation of jobs than by repression, the construction of prisons and the establishment of police forces. In addition, the Conservative government is not only adopting this model for itself, but it is turning it into an instrument of partisan politics. The announcement of harsher sentences may appear very simple to the public, whose feeling of insecurity, however, is not supported by statistics, as my colleague pointed out.

So this is a sort of right-wing populism that spells extreme danger for the future of Canadian and Quebec democracy. I would therefore like to hear my colleague's comments in this regard.

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12:20 p.m.

Bloc

Marc Lemay Bloc Abitibi—Témiscamingue, QC

Mr. Speaker, at the outset, I would like to say that I agree with the hon. member for Joliette.

As a legal aid lawyer having always argued for the defence, thereby coming into closer contact with citizens experiencing difficulties—the underprivileged—I have always sought, and I shall always seek individualization in sentencing. This seems to me to be essential. But that is not what this bill seeks to achieve. I think it focuses on the wrong message, and that it sends a very unclear message.

The legal community is deeply concerned about this. I attended the Conference of the Quebec Bar just two weeks ago.

I think that judges are doing exceptional work. Their job is to sentence individuals. They do not want to punch 742.1 into a computer that will spit out an eight-year prison sentence for the accused.

We must preserve the principle of individualization, but we must above all respect the goal to rehabilitate the individual, who will one day go back into society. Excuse me, Your Honour, but as I said to the judge, when my client re-enters society, will he be ready for it? If he is locked up for 10 years, he will not be.

My apologies for having given you a raise, Mr. Speaker. However, I must tell you that we must not do this. What we should do is provide the courts with guidelines acknowledging that sentences may not be severe enough, but that appeal courts exist to rectify them. Our job is to work on rehabilitation and to fight poverty, for what is crime? People commit crimes when they have a problem; our society is not full of psychopaths.