Mr. Speaker, I am pleased to offer my comments today in support of Bill C-393, introduced by the member for Leeds—Grenville.
Like him and many members of this House on both sides, I have serious concerns about the way our criminal justice system is functioning. Like other members, dissatisfaction or perception of general dissatisfaction with the justice system in Canada is a sentiment I hear expressed regularly by my constituents of Westlock—St. Paul.
As we have heard, Bill C-393 contains three general issues.
The first deals with sentencing for crimes involving carrying deliberately concealed weapons and homicides committed with a knife in defined circumstances.
The second deals with increasing the discretion of the National Parole Board to provide relevant information to victims and to prevent abuse through offender adjournment of parole hearings.
The third area, which I wish to address today in greater detail, deals with clarifying the discretion available to sentencing judges in calculating what credit, and indeed what extra credit, should be given to persons who have been denied bail prior to their sentencing. While these are clearly distinct areas of criminal procedure, they have a common feature of dealing with systematic discretion in one fashion or another.
In the imposition of mandatory minimum sentences, the bill clearly is replacing the lower end of the discretionary sentencing range with a minimum sentence. Quite literally, this bill says to sentencing courts that at least a specified custodial sentence must be imposed, and that, of course, is a partial elimination of an existing judicial discretion.
There are dozens of like provisions throughout the Criminal Code, so its use is nothing new. However, its application to these offences is new. I should add that the choice of mandatory minimum sentences by Parliament has recently been confirmed by the Supreme Court of Canada in the Ferguson case.
In the area of enhancing victim rights, Bill C-393 actually increases the discretionary power of justice system officials responsible for decision making at the National Parole Board. This is an important point to make, as rather than issue a blanket entitlement to any and all offender information, Bill C-393 carefully weaves that outcome into defined relevance and discretion through the parole board.
The third area of the bill deals with what has come to be known as pretrial custody credits. Before analyzing this further, I should point out that this term comes about not as a result of a law passed by Parliament, but instead as a result of the way a discretion bestowed by Parliament has been misused, in my view, by some sentencing judges.
In this area, Bill C-393 clarifies how that discretion can be used by providing specific disqualifications based, it is important to note, on existing provisions within the Criminal Code.
Bill C-393 clarifies how a vested sentencing discretion is to be used and how it is not. In assessing the impact of this bill, it is wise to start with the specific section it modifies, namely subsection 719(3) of the Criminal Code, which states:
In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.
Four things stand out in this wording. The first is that the court “may”, not must, take pretrial custody into account. I am advised that on some seemingly rare occasions judges have refused to give such credit precisely because of past criminality and breach of existing bail orders.
The second is that the time considered is that spent in custody, not on bail under restrictive conditions but in custody.
If there were any doubt about that, judges need only look above subsection 719(3) to subsection 719(2), which expressly says that time spent:
--at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
In other words, what the sentencing judge did in the Moffitt case was contrary to the express provisions of the Criminal Code. Members will be interested to know that this view has been accepted by the Ontario Court of Appeal.
The third item that stands out is that the section does not specify any mathematical formula such as the two for one or even three for one calculation currently in vogue.
Fourth, and I think most important, is that the section specifies that the time to be considered is time spent “because of the offence”, not “because of breaching previous bail” or “because of a lengthy record” but “because of the offence”.
This is consistent with the way our system handles life sentences for persons convicted of murder. Pursuant to section 746 of the Criminal Code, the clock on parole ineligibility starts running from when the person is arrested and held in custody, as used to be almost always the case on murder charges in years gone by.
In other words, if a person is denied bail not because of the offence, but because of the offence and his or her lengthy criminal record or violation of bail, then that person should not qualify for this consideration.
In enacting subsection 719(3), Parliament has deliberately expressed the qualification for this benefit, and it is not up to the courts to add to it, especially when the grounds for the denial of bail are themselves expressly stated in the Criminal Code directions to courts about when to deny bail. In plain English, it is called common sense.
Not only have courts abused this discretion by applying it to the wrong people, they have taken it upon themselves to artificially create “extra” credit based on their view of the nature of the remand facilities. This is where the two for one or three for one calculation comes from.
The irony of the no doubt well-intentioned judicial inmate advocacy has apparently escaped judges who follow this practice. By giving extra credit for remand, they are providing an incentive for people denied bail for past criminality to stay in remand to take advantage of the extra credit. Then they have their lawyers complain about the overcrowding as justification for extra credit. If there was ever an artificial absurdity in dire need of correction by Parliament, this is it.
It used to be that in the old days when the career criminals got caught and were denied bail because of their past records, they quit the delaying tactics and pled guilty to what they knew they were going to be convicted of. They did it to avoid what was known as “dead time”. Today, thanks to misguided judicial misuse of a legitimate discretion, that dead time has been converted into the gift that keeps on giving.
Canadians following the debate will be shocked to learn that this abuse of discretion has literally caused their justice system to reward past misbehaviour and violation of bail by giving it extra credit when it comes to sentencing. I know this will come as a shock to those who think complexity is always better, but we need a system that rewards non-offending and compliance with court orders. We need a system that punishes continuing criminality and breach of bail.
Put simply, we need to restore to our justice system the capacity and willingness to tell the difference between right and wrong.
Bill C-393 does exactly that and it will also restore public confidence in our judicial system. Canadians are rightly wary of a justice system that says one thing but does another, and where we have to read the fine print to see what the truth is. Quite frankly, Canadians deserve better than this. It is up to us to make sure they get it.
I would also like to take this opportunity to congratulate my colleague for Leeds—Grenville for the hard work and dedication he has put into the creation of the bill.
As with all legislation, there are some changes we need to look at. If the bill is sent to committee, the committee will study it and will even make the bill better in some cases, but I think it is important to remind all colleagues in the House that we all ran on the idea of fixing our judicial system to make it stronger and better for all Canadians and for future generations.