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House of Commons Hansard #38 of the 40th Parliament, 3rd Session. (The original version is on Parliament's site.) The word of the day was sentences.

Topics

Criminal CodeGovernment Orders

4:15 p.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

Order, please. Resuming debate, the hon. member for Moncton—Riverview—Dieppe.

Criminal CodeGovernment Orders

4:15 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, it is my pleasure to rise and speak to Bill C-16, which, but for prorogation, might be Bill C-42 and, but for incessant elections, might be Bill C-70. In any event, this is a proposed law that speaks to a tool the judiciary has in its toolbox called conditional sentencing.

I am struck by the previous speaker and the tone in the House generally when it comes to characterizing bills by names that presumably everyone can understand what they mean. The Conservative government attempts to cut, with a very large swath, colour with a large brush, a whole area of law with a very simply phrase.

For people tuning in to the debate about Bill C-16, they would, because of the way the government labels bills, think this is a debate about ending house arrest for property and other serious crimes by serious and violent offenders. That would be the title of the book or the movie that people would be watching if they were tuning in to this debate.

When we actually peel away the layers of the onion, we realize that we are talking about an enactment of Parliament that was substantially amended in 1995, with some minor amendments in the last Parliament, which is imposing conditional sentence. It does not say imposing house arrest with a big screen TV and extreme television. That is not to be found in the code.

The Criminal Code is a large volume that regulates the laws punishing criminals for proven facts that lead to a sentence or conviction. The Criminal Code does that. It is divided up into many sections, sections involving offences against the state, invasions of privacy, offences against the person, offences against property. Administrative aspects are in there as well. There are some 800 sections in the code and one of those sections deals with imposing a conditional sentence.

Let us be clear. If someone who commits a crime is sentenced to two years less a day, that individual is eligible, in some cases, for conditional sentence. Anybody who is found guilty of an offence that gets a sentence of more than two years is not, will not be, has never been, eligible for conditional sentencing.

Maybe some the people listening today are parents. They realize that if they take away their teenage daughter's cellphone, that is pretty serious punishment. If they banish her to her room for a week, that is really serious punishment. However, if they tell her she has to eat her vegetables, that is not that serious in the realm of possibilities of sentencing.

Conditional sentencing is available to judges. It provides them with the opportunity to say that there is some possible merit in the person. The individual has done a bad thing, but maybe he or she could be rehabilitated, maybe we could get to the root cause of why he or she is acting this way.

This opens up the larger debate of what are we doing as a Parliament about crime prevention.

We have been doing very little lately because we are spending our time watching our own big screen TVs and the Minister of Justice saying that this bill would end house arrest for property and other serious offences, when in fact it is trying to curb a tool being used by judges and prosecutors every day.

Let us be clear again. A defence attorney defends a person accused of something. That is not within the realm of this debate here. We are making law that would be used by police officers and prosecutors. Police charge a person with an offence. Prosecutors will look at a whole range of proof possibilities. They will also look at the range of possible sentencing. The prosecutors, the police and eventually the judge will look at the sentence in a holistic fashion and say that there are a number of options available, such as the individual is just a bad person and he or she should be locked away. Unfortunately the Conservative government thinks everybody falls into that category, and there are a number who do.

However, there are also people who, because of addictions to substances or horrendous nurturing child development socio-economic background problems, are driven to crime. A number of people, because of mental illness, which still has not been addressed in our communities, may turn to a life of crime and perhaps, in the first few incidences, are committing crimes that a judge, a prosecutor or a police force official would say that the person could benefit from a conditional sentence. Conditional sentences are often recommended by prosecutors.

This painting of the picture by the Conservatives that all policemen and all prosecutors want the most harsh sentence and want to put the person away is not always the case.

This is why we have debate in the House and why we have committees where we will hear from the people actually doing the work, the prosecutors, the policemen and, hopefully, the judges. They will tell us that this is a tool that exists among all the other tools which include incarceration. If someone commits an offence they can be charged with an offence and incarcerated. If it is a really serious offence, the offender will get a really long jail sentence.

My friend from Edmonton—St. Albert does not want to talk about cases but let us cut it up as to the type of offences that might occur and the sentences that would be incurred.

If someone commits a really serious sexual assault involving bodily harm and it is his fourth offence, he will not get six months or a year. He will get a serious sentence, not a conditional sentence. It is an academic argument. It is a wrong argument to say that we are giving house arrest to the big screen TV watching criminals for the very serious offences on multiple occasions. The evidence will be before us in committee. Contrary to what my friend from Edmonton--St. Albert said, the committee and this Parliament have not heard any evidence about conditional sentencing. We will hear that if the bill goes to committee.

I would remind members of the House that we get the big wheel of the justice committee going and then all of a sudden there is a prorogation and we start all over again. Heavy is the head that wears the crown over there, in that the government keeps stopping Parliament and bringing in legislation and we have to hear evidence all over again.

However, we are looking forward to hearing from the participants in the justice system as to whether the tool is being used and whether it works.

As I was saying, the other tools that a judge, prosecutor and police officials have at their disposal is to work together toward incarcerating criminals. Let us review that one. In many circumstances the best deterrent for future criminal activity is having someone not out and available to do that crime. There is no question about that. The best prospect for public security and public safety with respect to certain individuals is keeping them incarcerated. A little side note is that when they are in our corrections facilities they often commit crimes as well because it is not as controlled as Canadians would like to think. Criminal activities do take place inside our corrections facilities. Therefore, when we remove someone it is not as if we are getting rid of their criminal activity. That is number one.

Number two is that without any rehabilitative programs and without any care for making the person better, the period of incarceration has, in many cases, especially for a first or second offender who might merit a conditional sentence, the opposite effect. The offender does not learn necessarily good things in prison and he or she comes out a worse offender or a worse potential offender.

There is another fallacy in the Conservatives' hide and seek justice philosophy. They think they can convince the Canadian public that by putting people away and removing them from society they will never come back into society, and, in some cases that is true. I do not have the facts in front of me about that but our list of dangerous or long term offenders who will be incarcerated forever, multiple murderers, is in the percentage of 1%, 2% or 3% of our incarcerees now. I think it is that low.

I will be conservative for a moment and say that the vast majority, 80% perhaps, of offenders will get out of prison. When they get out even the Conservative would need to come up with a reason to put them back in. Therefore, they do need to reoffend and thus the victimization reoccurs.

What is in everyone's interest is to know that incarceration happens, which is the first element in the toolkit. Second, if there is a sentence that merits a period of leave or freedom, it can be accomplished with a guilty plea, a sentence and a probation order. In some cases, a probation order would be very acceptable. However, as we heard time and again, probation orders are not as fluid. They are not a useful tool to judges because they do not allow as many conditions attended to the probation order as a conditional sentence. I do not hear the government saying that we should end all probation orders. It must think the probation order works even though it has fewer conditions than a conditional sentence regime.

The conditional sentence is the third element in the toolbox that I would like to discuss. It is found in section 742.1 of the Criminal Code of Canada which, as I have said before, is the best thing a Conservative justice minister ever did by creating the Criminal Code or putting it together. That is some 100 years ago and we are looking for some improvement and some new things from a Conservative justice minister, but near the end of the code it has a tool for judges to say that if a person is convicted of a offence and it is less than two years and, this is a key thing, the judge 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 section 718, the conditional sentence may work and may be used by a judge.

Section 718, which I have referred to a number of times, is probably the most important part of the Criminal Code because it sets out our principles of sentencing and they do not weight one more than the other. It says that if a person has done a crime we should seek to denounce that crime. There also should be an element of deterrence so that it does not happen again. Deterrence is general to the general public. If a person does something, the conviction of that and the sentence attended to it should deter people generally from doing that and it certainly should deter the person specifically.

There are also elements of rehabilitation. Is the person who committed the crime and has been convicted eligible to be rehabilitated? The goal of most of the criminal justice legislation that comes from this place must be to make society safer. Making society safer would occur if there were less crime. There would be less crime if there were a serious crime prevention agenda, a serious attended budget for crime prevention and less bickering between the federal government and the provinces with respect to how to spend resources on crime prevention.

For a moment I will digress and say that there is a bickering by distance. The provinces may get social transfers but they always say that they do not have enough resources to fund probation officers and police officers who intervene in the community. The provinces are doing very little with federal money to get involved in crime prevention. We must remember that everything with the government is storefront. It is not what is behind the storefront, but in the storefront the Conservatives put the Ombudsman of Victims of Crime, Mr. Steve Sullivan. He did an admirable job. He spoke up for victims. However, like Kevin Page, AECL and everyone who gives the government a few problems, speaks up and speaks the truth to power, the Conservatives are not renewing the contract to Mr. Sullivan. How serious are they about victims rights really and how serious are they about a crime prevention agenda?

The provinces would like to do more in this regard.

I do not know if our intergovernmental affairs critic is here but in the old days there were a number of first ministers meetings, attorneys general, justice ministers and even the prime minister might be involved occasionally in the past, but there has been very little dialogue with respect to crime prevention and to changes to the Criminal Code from the current government members.

The Conservatives are not as much interested in finding the root causes of crime and treating them, or in finding out what programs are effective and funding them, or in talking to the provinces on how to better implement their programs on a national scale, province by province and territory by territory, as they are in the 5 p.m., 6 p.m. in the Atlantic provinces and 6:30 p.m. in Newfoundland, national news stories that say, “We have done this today. Look at us. We are going to make the language simple.”

I find nothing wrong with simple language but in this case it is misleading to say that this is about house arrest. This is about the section of the code that gives the judge options. If a judge chooses to employ the conditional sentence for a crime that is less than two years, he or she may, in most cases has to, implement certain conditions, and they are here, that every person convicted of a crime that befits a conditional sentence shall keep the peace and be of good behaviour, shall appear before the court when required to do so, shall report to a supervisor within two working days after making the order, thereafter, when required and at the behest of the supervisor, shall remain within the jurisdiction of the court unless has permission to do otherwise, shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court.

If any of those conditions are broken, and if provinces are adequately funded for officers to enforce these orders, which is a big problem for the provinces, the government throws out legislation, puts it on the books and subsequently has a turf war with the provinces and territories as to how the laws will be implemented and who pays for it. There is a systemic downloading of services to provinces in this regard. However, those are the standard conditions and if they are broken the person goes back.

I think we will hear from witnesses, if this goes to committee, why it is a valuable tool that need not be restricted any more than it is and needs to be a tool of the judicial discretion that exists. We must remember that from the moment the government took office it has attacked judges because it did not like anyone who was not in their caucus, which is getting smaller month by month. In other words, the government would like to have judges like those in the United States who run on political campaigns, on a set of political promises and toe a political party line.

The government has had very little respect for judges since it came to power and now it wants to take away further discretion. It is okay to have that belief, but when it stands and says that it believes in judicial discretion, its actions with respect to legislation does not show that.

Let us talk about a good judge, a good prosecution and good police officer bringing an individual to court who may be saved. These additional conditions are available to a judge for people who have been found guilty of an offence for which a conditional sentence order might apply. They could be ordered to abstain from the consumption of alcohol or other intoxicating substances. There is no such order in our corrections facilities. It is a given that they cannot in corrections facilities but the reality is that it happens.

As I said earlier, and I think we would all agree, many people who commit crimes and are in our prisons have substance abuse issues. It is the root cause of much crime in this country. We should be doing something to allow judges to force people convicted of offences to refrain from consuming alcohol or intoxicating substances.

Another condition could be abstaining from owning, possessing or carrying a weapon. Other conditions are to provide for the support and care of dependents, if the person has them; perform up to 240 hours of community services over a period not exceeding 18 months; attend a treatment program approved by a province; and comply with, and this is the catch-all, such other reasonable conditions as the court considers desirable.

Let us not throw the baby out with the bathwater. Let us keep conditional sentences subject to what the evidence tells us about their efficacy. Let us not completely denigrate the system, which is the whole pith and substance of what the hon. member for Edmonton—St. Albert, in leading the government in this discussion, said. He said that because conditional sentences are used, so people can watch their big screen TVs, the whole system of justice is brought into disrepute.

What brings the system of justice into disrepute is the agent of the government, the representative of the government who stands here and says that something that is being used every day by good judges, good prosecutors and good policemen is not working. That is what brings it into disrepute.

Criminal CodeGovernment Orders

4:35 p.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

Before moving on to questions and comments, it is my duty pursuant to Standing Order 38 to inform the House that the questions to be raised tonight at time of adjournment are as follows: the hon. member for Etobicoke North, tuberculosis; the hon. member for Richmond Hill, Afghanistan; and the hon. member for Yukon, the Arctic summit.

Criminal CodeGovernment Orders

4:35 p.m.

Conservative

Ed Fast Conservative Abbotsford, BC

Mr. Speaker, the member does good work on the justice committee and is generally not prone to hyperbole, but I did notice one thing in his comments on this bill which addresses the whole issue of conditional sentences and house arrest. He did mention that he believed that our government was not doing enough on crime prevention and suggested that virtually nothing in terms of additional resources had been put into that part of our budget.

I looked at the main estimates for 2008-09 and 2009-10. In 2009 there was about $39.5 million for crime prevention. In 2010 there was actually $64.5 million. That is an increase of $25 million, some 60% increase in funding for crime prevention across Canada.

I would ask my colleague on the justice committee whether he is prepared to temper his remarks somewhat in light of the clear proof in the main estimates that in fact our government is moving forward to address issues such as crime prevention.

Criminal CodeGovernment Orders

4:40 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I do want to temper my remarks because the member is the chair of my committee and I want to be recognized tomorrow morning and on Thursday morning. I do want to say that there is a big difference between putting something in a budget and showing that is has been spent. Also, just because it is put as a line item in a budget does not mean there is effect and does not mean that it is money being spent in the right place.

When I spoke about crime prevention, admittedly I had a short time to explain, I was talking about the provincial and local levels. I have a municipal background and I know that the member for Abbotsford does too. He knows that money spent locally on things like crime prevention are the best dollars spent. What I hear in my own community and other communities in New Brunswick is that there has not been a real surge in effective crime prevention activity. We have not been getting early enough intervention. We have not been getting the societal need to find other ways to treat criminal activity.

There is one thing on which he and I can agree, and it is not political whatsoever. I do not think the government is interested necessarily in spending social services money on crime prevention. I do not think it is interested in that; we will have a debate on that if we disagree. We are unified in trying to find new tools for police officers, prosecutors and judges to tackle organized crime and gang violence, and I thank him for his co-operation in that regard. It is something that cuts across all parties. It is good to be in a parliamentary and committee milieu where everybody is rowing in the same direction. I have only been here four years, but I am told that that is pretty rare.

I compliment the member on his stewardship on that good part of the discussion, and of course I disagree with him vehemently on the first aspect.

Criminal CodeGovernment Orders

4:40 p.m.

NDP

Nathan Cullen NDP Skeena—Bulkley Valley, BC

Mr. Speaker, the government has brought in crime bill after crime bill as if that were the single issue facing Canadians. Whether it is in the midst of good times or bad, in the midst of a recession, threats of climate change or other issues, all the Conservatives can see on the horizon is yet another crime bill.

The irony is that many of the crime bills have been killed repeatedly by the government itself through its use of prorogation. Some of these crime bills are on their third and fourth lives because the government keeps putting them up almost like unwanted children and then knocks them off right away. We wonder about its sincerity of getting the legislation through.

This particular bill is a bill that Parliament has seen before. Changes were made at committee based on witness testimony. I have two concerns about this.

One is that the very notion of rehabilitation or alternative sentencing works. The government likes to continually cast aspersions and has the idea that the only way to serve justice is by the traditional forms of punishment first invented several thousands of years ago, whereas everything we have learned since then is that we want to be as concerned about the person coming out of prison as we are about the person going to prison. It does not work.

The second piece seems to be a fundamental disrespect for the judiciary. It is a subtext through all of these bills and notions about what kinds of sentences are being handed out, or not. The Conservatives want to put handcuffs on our judiciary. If they are good enough to sit on the bench, one would think they have the capacity to rule, judge and hand out punishment for certain crimes. The government does not seem to believe that the judges who sit on our benches are capable of interpreting the law and handing out sufficient punishment for crimes committed.

Criminal CodeGovernment Orders

4:40 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I think I have said that I do not think there is the degree of agreement on the importance of money spent on crime prevention.

With respect to the tweaking of this bill, I guess it all comes down to judges. If a judge gives a sentence of over two years for something, it is a pretty serious offence. However, if he gives a sentence of less than two years, let us say, six months or seven months, is that not an indication that the crime is not as serious as the label would have us believe? Maybe it is an issue of evidence that is proffered. Maybe it is an issue of being a first-time offender. Maybe it is an issue of, in some cases, being able to be out and make restitution. Maybe it is a case of an accused being under the influence or having a substance abuse.

It would be a hard sell to tell the Canadian public, for instance, that luring a child and kidnapping should not be on this list, and maybe I agree in some cases. One could probably see that with theft over $5,000 and, in some cases, being unlawfully in a dwelling house, we do not know of the circumstances. We are going to hear from prosecutors and judges who say that maybe in some cases it is better to have a person under these very stringent rules enforced. Maybe that is the evidence, that we cannot enforce these. If it is a case that we cannot enforce the rules that we have in the code, then we are going to have to look at a lot of other parts of the code, too.

Criminal CodeGovernment Orders

4:45 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Mr. Speaker, I certainly enjoyed my friend from Moncton's speech. I know he listened intently when I delivered my comments.

The provincial courts in different provinces, in fact different appellate courts, have interpreted the current legislation differently. Specifically, when it comes to what is and what is not a serious personal injury offence, that requires some legislative intervention. Some clarity is required so there is more uniformity from jurisdiction to jurisdiction with respect to the availability of conditional sentences. Would the member agree?

Criminal CodeGovernment Orders

4:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, certainly, that is why we have the committee. We have to look at the decisions of the various courts of appeal. Clearly, there is an awful lot of legislation that has been passed that was not exactly clearly thought out, I admit. That is why some of this debate will take place at committee. Moving some of the offences off the conditional sentence list would be all right.

If the Department of Justice advises us of any definitional problems, as determined by the courts, we are all for that. That is not partisan.

What is partisan is having people think that every conditional sentence means home arrest for a very serious offence. The member himself used arson; someone burned down my house and now he is home watching a big-screen T.V. That is not what this is about.

Criminal CodeGovernment Orders

4:45 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I guess what has been concerning me through this whole process with the Conservatives is the double standard. There is a standard for the Conservatives and their friends, and a standard for everybody else. They move to this zero tolerance position on everything. Everything has to have zero tolerance. Everything has to have minimum sentences. If someone makes a mistake, if someone commits a crime, the Conservatives' solution is the full weight of the law comes down on them. However, when it happens to one of their friends, there is a whole different standard.

For example, if a citizen was driving home through a small rural municipality and was driving 40 klicks over the speed limit and got pulled over, we would think that car would be seized. If he was drinking and driving and going 40 klicks over, they would throw the book at him. And then if he was carrying cocaine, we would think it would be a pretty serious case. But this was Rahim Jaffer, a man who had the Conservative Party logo on his website, and when the case goes to court, it is thrown out. And then the Conservatives, the same people who are undermining the judiciary, the same gang who are insulting our judges--

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4:45 p.m.

Some hon. members

Oh, oh!

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4:45 p.m.

Conservative

The Deputy Speaker Conservative Andrew Scheer

Order, please. I do not know that the hon. member for Moncton—Riverview—Dieppe is going to hear the question because I am having difficulty hearing the question.

We are coming to the end of the period allowed for questions and comments. Perhaps the member for Timmins—James Bay could wrap up his question very quickly so we could allow the member a chance to respond.

Criminal CodeGovernment Orders

4:45 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I find it very interesting to hear cheap shots from the Conservatives that suddenly we have to protect the judiciary and that suddenly the judiciary is separate, when they sat here all day and snickered and insulted, until one of their pals gets caught and then the judiciary has to be allowed to do whatever job it is doing in allowing Conservatives to get off the hook.

Criminal CodeGovernment Orders

4:45 p.m.

Liberal

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Mr. Speaker, I am all for discretion with respect to judges and prosecutors. We should let them do their jobs. If all of this means that in unison we believe in securing the public and having a system that is knowable, and in the end means that we will restore confidence and trust in the judiciary and the prosecutors of this country, I am all for it.

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4:50 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I am a lawyer. I passed the bar in 1966 and, as luck would have it, my first job was with the provincial government. I was then approached by the federal government, which, at that point, prosecuted almost all lawsuits involving drug-related offences. I was then approached by a large firm that dealt with criminal law. When that firm broke up, I was ready to open my own office. I opened my office and hired lawyers. I was very involved in the bar association. I became vice-president and then president of the Quebec bar. After a short break from my career as a criminal lawyer, I went back to criminal law.

I also taught and was often consulted by the Law Reform Commission, as were many other criminal lawyers. I then went into politics and became the minister of public safety. I had to face the most dangerous criminal gang in the country, the Hells Angels. I appointed the chief of the Sûreté du Québec. I was friends with the Montreal chief of police. We came up with a new method for the police to deal with organized crime. That led to creation of the Carcajou squad. The idea was that police would integrate their data bases containing information about criminals. On the ground, the investigators always worked in pairs—one from Sûreté du Québec, the other from Montreal police. The method worked well enough and the RCMP joined us. We were the first country to break the Hells Angels and arrest the ringleaders of this organization through Opération printemps 2001.

I do not think that anyone can doubt my desire to decrease the number of victims and to find effective ways of fighting crime. I believe that we have already found one. This mixed squad model has spread across Canada and even into the United States. We were the first to use it, in 1997.

To begin with, I must say that of course I am against sentences of house arrest for criminals who commit very serious violent crimes. Would anyone claim to be in favour of such a thing? We can say this so adamantly on our side of the House because we are confident that everyone is against this, as are judges who also probably do not want criminals who commit serious violent crimes to be allowed to return to the comfort of their homes. Thus, judges do not give such sentences to serious, violent criminals. Also, I am entirely convinced, and I think it is obvious, that the best way to protect victims is by reducing crime. In this effort to reduce crime, we need more than just legislation; enforcement techniques must also be considered. And then there is police work, which can sometimes focus as much on prevention as on catching criminals.

I have over 40 years of experience and I was also Quebec's minister of justice. I would point out, however, that the greatest success of the Carcajou squad—an operation that took place over three years and that also led to the loss of some informants who were killed during the operations—was Opération Printemps 2001 during which 322 individuals were arrested. They were all convicted of something and there were never any complaints about how the police had obtained the evidence used in the trials.

Nor do I know anyone who criticized the sentences that were handed down to this group, which included not only the worst offenders and the leaders, but also minor accomplices.

I had not planned on making a career of criminal law, but that experience led me to do some reading and ask some basic questions about why people commit crime. In university, we criticized one another for not being intellectually honest, but it is even worse when dealing with fraud artists and thieves.

I came to believe quite strongly that, although intervention is necessary, sentence length and severity have relatively little effect. Severe sentences are costly, not only in terms of money spent, but also for the individuals destroyed by long periods of incarceration. What is more, some people who should not have been incarcerated for short periods of time are immersed in a criminal environment for months at a time.

Evidence suggests that the most effective approach is rapid intervention and sentencing. Sentence length is relatively unimportant. I quickly became convinced that there is no such thing as a deterrent sentence. Fear of getting caught is what deters people from committing crimes. God knows that I made enough money by helping people avoid a criminal record even when they were not facing the possibility of jail time to know that most people think getting caught and ending up with a record is bad enough.

The best evidence I have seen to suggest that sentence length is not a deterrent is the seven-year minimum sentence for importing marijuana. To be honest, in 1966, I had never even heard of marijuana. That is when it all started. Cannabis can be turned into marijuana and hashish, but the kind of hemp or cannabis grown here was not hallucinogenic at all. Everything was imported. Imports began to soar at that time, despite the threat of seven years in jail. That is the best evidence that sentencing is not an effective deterrent.

All the same, deterrence can work in some circumstances, such as when people know the consequences of an offence and know that they will be subject to those consequences. Here is an example of that.

When I started practising law, judges could choose between a jail sentence and a fine. However, in the 1960s, a new concept from England was added to the Criminal Code: conditional sentences. The judge would tell the offender that he was suspending the sentence subject to certain conditions. In short, rather than imposing a sentence that day, he would suspend it and, if the person abided by the conditions, he would not have the right to impose it. However, if the offender did not abide by the conditions—the judge could set a number of conditions, such as house arrest—he would be brought before the judge and a sentence imposed at that time.

House arrest, by the way, is a common practice in Europe. In all European countries, including England I believe, it is possible to serve a sentence at home. When implemented in Canada, I thought that this might perhaps replace suspended sentences which, in practice, are difficult to administer—so difficult that offenders were not brought back before the judge for sentencing.

The advantage of conditional sentencing is that the judge states that the sentence is 18 months' imprisonment and that it will be served in the community with certain conditions. The conditions can be very harsh. If the offender does not abide by the conditions, the sentence has already been determined and the individual will have to serve the rest of the sentence. If the breach occurs in the second month, he will have to serve 16 months. If the breach occurs in the sixteenth month, he will not have a great deal of time left to serve. However, the deterrent effect is more immediate and, most of the time, the offender quickly understands.

Conditional sentencing also had many other advantages. For example, it made it possible for individuals to keep their jobs and to support their families. It also allowed them, when possible, to make restitution for damages caused by the crime. Because young adults are often the majority of accused people, it allowed them to continue their education or to attend a program to learn a trade and get a job. Moreover, it was less expensive. I believe we have mentioned often enough that it costs $101,000 per year to keep an offender in a federal prison.

It is not televisions or things like that that cost so much. Over 98% of that amount is spent on security. Spending on security is not as high in the provinces, but it is still significant.

The individual is already feeling the immediate consequences of crime. When we send someone to prison, do we realize what kind of environment that is? That person is surrounded by criminals. Too often, the criminals run the prisons and the prisoner organizations inside. For someone who is impressionable, this is not the best environment. Plus, we are causing this person to lose his job, since he cannot report to work, or we are interrupting his schooling, something that could make him a better citizen, a useful citizen. It also trivializes offences. This person is surrounded by plenty of people who did much worse.

The Conservatives always tell us that serious and violent criminals must not be in the comfort of their homes. I do not think that judges give light sentences. This bill is not intended to punish serious and violent criminals—which the law already does—but those who have not committed serious and violent offences, people the judges have decided do not present a danger to public safety. These are the instructions given to judges.

We are always given the example of a case that came up somewhere or another. I notice that most of the time—this time is an exception, but we will look into it—we are talking about sentences imposed in a first instance. Very little is said about these sentences. When a judge hands down a sentence, he or she must take into consideration a number of factors that are mentioned in sections 712 and onward.

Some of these factors push the judge in one direction or another. For example, denouncing the unlawful conduct would be along the lines of indulgence, while deterring offenders or anyone from committing offences would be leaning toward harsher sentences. Separating offenders from society, where necessary, has to do with dangerous offenders. As for providing reparations for harm done to victims or to the community, the judge starts to run into problems because if the person in question is forced to lose their employment, they will not be able to provide the reparation. I believe that true rehabilitation begins with the effort of making restitution to the victim. That is what we should be looking at.

One of these elements, the social reintegration of the offender, takes a different tack. The judge has to consider all of this. Every time hon. members across the way give us an example of a sentence, they only give us one reason. Anthony Doob, the famous criminologist from Toronto, conducted an experiment. He looked at how many reasons the newspapers reported as to why a sentence was handed down. He found that it was one reason and a quarter. He then looked at how many reasons judges gave to justify their sentences and on average they gave 11 to 13 reasons.

If it appears to be so terrible, then why was there no appeal? We are told that two cases are being appealed. I will look into why the appeal courts handed down sentences that were seemingly contradictory. I think, on the contrary, that these sentences might seem contradictory because the facts were quite different and there were some factors that called for harsher measures and others that called for clemency. I do not really like the word clemency, so I will talk about measures to ensure rehabilitation.

This system has been in place for 14 years, and it seems to me that the government should be evaluating how it is applied and the measures it includes before proposing any changes. Nothing in the government's proposals is motivated by danger, poor administration or the disastrous consequences of some action. On the contrary, since this system was put in place, crime has gone down overall. In any case, the government would have to prove to us that house arrests have had negative consequences in enough cases to warrant amending the legislation and wiping out our confidence in the wisdom of judges.

People always talk about the comforts of home and big-screen TV. Although ministers and members may enjoy the comforts of home, when you have had some contact with the criminal world and you have dealt with these people, you know what sort of lives they lead. The main characteristic that people in prison share is that they are socially maladjusted. Sociological studies conducted when I was Minister of Public Safety for Quebec showed that these people are socially maladjusted.

I can guarantee that not one member could spend a week without leaving the basement of most of these people sentenced to house arrest. I would even suggest that they try spending a week in their own home without leaving. They would see whether house arrest is a form of punishment. Just for fun, I once tried to stay home for a whole weekend. House arrest is definitely a form of punishment, especially in the sorts of homes these people live in.

Mention was made of fraud and how it was very different. If it is, then sentences for fraud should be different as well. I do not see why the government is targeting fraud. There is a lot of minor fraud for which short prison sentences or house arrest would not be appropriate. Obviously, this sort of sentence would not do for Earl Jones or Vincent Lacroix, and I believe that all judges would agree.

Mention was also made of the many sentences that would be affected by this measure. Drug trafficking is serious until you look closely at the definitions of trafficking. Trafficking includes giving and offering to give someone drugs. Marijuana is still classified as a drug, so if a guy offers his girlfriend a joint and she says no, he has trafficked in drugs in the eyes of the law. Is he what we would call a dangerous offender?

The government always forgets about less serious cases in its new bills. It talks about the most serious crimes. It eloquently condemns the most serious crimes, but it ignores anything less serious. By focusing on the most serious crimes, it overlooks all of the accomplices who have committed less serious crimes.

Here is another example involving drugs. Parents know that their child is smoking marijuana or hashish. Two or three envelopes arrive from Morocco, but their son tells them not to open the envelopes. What should those parents do? I know what I would do because I know the consequences. However, many parents would keep the envelopes and give the child a lecture. Some parents might throw the envelopes out, which makes them accomplices. What they did was less serious, but if they get caught, they have to suffer the consequences.

I knew one young woman who accepted packages for a friend who was away. In that case, the minimum sentence was applied and she got the same seven years in jail as he did.

Lastly, we have to talk about costs, which are significant. There can be no doubt that costs will go up because of this bill.

This means that they will have to go to provincial jails, but there is no space for them. Double bunking is already happening. Because there is no space for them, they get out sooner. “In and out” treatment is common in cases where it would have been better for individuals to serve their sentences at home with the sword of Damocles hanging over their heads to remind them of the possibility of going back inside.

I do not understand why they have not yet given us the breakdowns, but in this case, the cost alone means that proportionally fewer sentences will be served in their entirety.

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5:10 p.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, I would ask the member two questions.

First, there seems to be a number of members on the other side who just do not understand or support conditional sentences. Could the member explain why thousands of successful conditional sentences have been given out? In fact, they have had more successful outcomes than jail terms.

Second, as parliamentarians, we are all partly responsible for the misconception that conditional sentences simply mean sitting in one's house watching TV. Indeed a number of other items are part of those conditions on occasion and are one of the reasons why conditional sentencing is often more successful than incarceration.

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5:10 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, my colleague has asked an excellent question and I believe that there are two aspects to it.

I will start with the second aspect. It allows judges to impose conditions that would ensure better rehabilitation, that would ensure reparation for the crimes committed and that could also put the person into schooling or a job retention program.

My colleague first asked why members on the other side do not understand. I feel that they do not have any understanding whatsoever of crime in general. They have no experience in this area. They keep talking about deterrence. A suspended or conditional sentence is an effective deterrent.

The number one reason that tough sentences are not deterrents— the main reason—is that people do not know anything about them. I am sure that if I asked the members here to tell me how many mandatory minimum sentences there are in the current Criminal Code, very few would pass the test, especially if I also asked for some examples.

How can it be a deterrent if no one knows how long a sentence they would get? But when the judge tells someone that he is going to have to serve 18 months with certain conditions, that person understands that they have the remainder of their 18 months to serve.

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5:10 p.m.

NDP

Charlie Angus NDP Timmins—James Bay, ON

Mr. Speaker, I listened with great fascination to my colleague. He obviously has many years of experience in this matter. The issue of conditional sentences is really important. As he has pointed out, our Conservative colleagues across the way continually use the spectre of criminals to demonize the justice system, and it is completely separate from reality.

I spent many years working with men and women coming out of prison. I lived with them. I helped get them back on their feet. I saw the levels of recidivism. I saw what worked and what did not work. One problem the Conservatives never deal with is people have to be reintroduced to the community at a certain point.

I know some of my colleagues over there believe the glory days will be when we bring back capital punishment for furniture theft and everything else. They will not have to worry about reintroducing people to society. However, this is a major issue of the justice system. It is not just punishment; it is how we reintroduce people. I remind the House that many people have gone through the system again and again and yet they have managed to come back into society because the options and steps were available.

What does my hon. colleague think will happen in terms of social policy if we go down this retrograde road that the Conservatives go down, with their flat tires and their flat earth society? What will happen if we take away the tools we have right now to reintroduce criminals back into society and reintroduce them as citizens as opposed to just the condemned?

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5:15 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I could go on at length, but I will simply say this, and there is no doubt in my mind about it. All of the money we have to spend on fighting crime will be spent on security and nothing will be spending on social reintegration. This will create more victims. If we put more money into prevention and social reintegration, we would have less crime, and therefore fewer victims.

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5:15 p.m.

Liberal

Larry Bagnell Liberal Yukon, YT

Mr. Speaker, with the member's vast experience, could he comment on the justice policy, programs and bills put forward by the Conservatives in the sense of whether they are evidence-based? He mentioned one particular professor who was totally against Bill C-9 as an example. When I sat on justice committee, my perspective, time and time again, was that what was presented was totally not evidence-based.

Does the member have any comments on that?

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5:15 p.m.

Bloc

Serge Ménard Bloc Marc-Aurèle-Fortin, QC

Mr. Speaker, I would very much like to speak with him, because I thought more or less the same thing at first. I thought that the best option for a judge was a suspended sentence. If the individual committed any breaches, the judge could consider the breach and what it meant in terms of how dangerous the individual was. The judge could therefore reassess the length of the sentence.

In practice, however, I defy anyone to name a single province in Canada where suspended sentences have worked, that is, where they automatically brought the arrested individual before the judge who had imposed the suspended sentence. Most of the time, it had to do with a new offence, so it was settled by the second judge.

I remember one judge in Montreal, Justice O'Meara, who was very strict. When someone was brought before him a second time, I can assure this House that the sentence he had suspended was then imposed, and it was definitely a deterrent. At least a number of conditions can be imposed. This can also be done with a suspended sentence, but in that case, the individual is fully aware of the sentence he will be given if he breaches his conditions. This is for practical reasons. I would like to explain to him how this works in practice, and he will probably gradually come around to supporting conditional sentences, just as I did.

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5:15 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

Mr. Speaker, with regard to Bill C-16, it is important to set it in its context.

I will try to demolish the myth of the Conservatives being concerned about crime and victims in our country. I wish the person who keeps talking about the revolving door had some knowledge of it. He obviously is fully ignorant of it. The condition that will come from the bill, if it ever gets through the House and into law, will encourage repeat recidivism at a much higher rate than it if does not get through.

Let us go back to the myth. Conservatives stand in the House repeatedly, and in public even much more often, and claim to be tough on crime, but this bill is the classic example of them being not smart on crime at all, but also being highly hypocritical when they take that.

It is one of a series of bills that has not received any attention from the House and not passed through to final debate because of decisions made by the government, whether it called the election in a complete contrary theme to the legislation the Conservatives themselves had passed and which they again had promulgated as a major reform then promptly ignored and breached, but any number of crime bills some of which were in areas that did not need to be dealt with. They just get sloughed off because they call an election or they prorogue the House and we have to start all over again.

We have seen that repeatedly, literally in the range of 10 to 20 bills that are constantly being shoved backwards because the government is much more interested in its political survival than it is in dealing with those issues in our society around crime.

I will make a second point before I go specifically to Bill C-16 because Bill C-16 raises this issue. I have been saying repeatedly in the House, at every opportunity I get, that we badly need a systematic, holistic review of our Criminal Code.

We see it in the sections, and I hope, if I have enough time today, I will be able to point some of these out before I finish my speech on Bill C-16. However, we have huge contradictions in the Criminal Code, repeated contradictions, both with regard to the nature of the conduct we are trying to make a crime and with regard to sentencing.

We will see situations where I think the average Canadian would say that obviously this is the range of penalty and punishment that this crime should elicit. Then they will take another section that has more extensive penalties and punishment and the crime itself is of much less serious consequence in the eyes of the average Canadian. That is repeated over and over again. There is huge duplication in the Criminal Code.

We have been, and the government is particularly guilty of this, piecemealing amendments to the code way too long.

It is interesting, if we look at the experience in the United States and to a lesser degree in England, their approaches have been much more systematic in major reform. There are some ideas we could learn from those. I will not go on with my diatribe on that, but we badly need to do something about the Criminal Code.

Let me finish with this in this regard. One of the things where we could have done this was with the Law Commission, which was promptly done away with in the first term of the government. It was the ideal body in the country that could have initiated this. In fact, it was beginning to do some work on what was a crime, what should be a crime. It was beginning to do research on it when all of its funds were cut by the government. I think that happened in the 2007-08 budget.

Had that not happened, we might have finally seen some meaningful movement on getting that major reform to the code, which would make the job of our police officers, our prosecutors and our judiciary a lot easier than it is now.

Going to Bill C-16, to set this in context, roughly 14 years ago, September 1996, we introduced into the code the concept of conditional sentences. What conditional sentences were to do was part of the overall reform we were doing through that period of time, trying to make our criminal justice system not only more fair but more efficient, more effective. Overall we have seen that we have made some significant progress in that regard by reducing the rate of crime, particularly violent crime, in this country.

I fight oftentimes on the justice committee, as I did on the public safety committee when I was there, with my Conservative colleagues about not seeing the numbers right or numbers being manipulated, which I find frankly quite insulting to Statistics Canada, specifically Juristat that does an excellent job with the statistics. But the bottom line when we get into that debate is we cannot argue about the murder rate. In 99% of the cases there is a body or witnesses to say this person was murdered. We cannot argue about that, and the reality is that the murder rate in absolute numbers, not just in percentages but in absolute numbers, has been dropping for the last 20 to 25 years. We peaked in Canada at about 900 murders in one year. We are now down, averaging over the last few years in the range of 610 to 650. So there has been that kind of drop in murders in this country.

Over that 25 year period, our population would have gone up by 10%, 12% or 15%, so the murder rate has dropped quite dramatically. Part of that is attributable to the reforms we have carried out through this period of time, and the conditional sentences were one of those reforms. We introduced them. The concept behind them is, and this has been found all the way up to Supreme Court decisions, that they are a form of incarceration. This always gets ballyhooed by some of the pundits but mostly by the Conservative Party, but they are in fact a form of incarceration. Prisoners are in their own residences not in institutions, but under very strict conditions, and I think this is the point again that the Conservatives regularly forget, much stricter conditions than we can do under either probation or even under parole, when prisoners are coming out of a federal institution.

The other point one has to make about a conditional sentence is that it cannot be used, no matter what the charge is and what the facts are, unless the judicial officer makes the determination that the appropriate sentence would be less than two years. That is the way it has always worked since 1996, in spite of some of the amendments we made a few years ago. That is still the basic condition. Judicial officers at whatever level of court they are sitting have to hear all the facts of the crime, and the facts around sentencing, and then make a determination that if they are going to send the person to custody, to incarceration, they are going to send him or her to a provincial institution because the determination, after hearing all the facts, is that the person should be incarcerated for less than two years. No matter how severe the offence is, on its surface and after looking at all the facts, judicial officers are determining a sentence of less than two years.

Everybody in the House knows that if people are going to be sentenced to less than two years, they are going to be sentenced to a provincial institution. So the incarceration rate we are talking about, if the bill were to go through, is all going to be about individuals who would be going into provincial institutions. Those people would no longer be eligible for conditional sentence; the judge would determine they are going to be incarcerated. As is so typical of the government, no arrangements are being made with the provincial governments to pay for all those additional spaces.

I want to highlight this by pointing out that the first crime bill the Conservatives brought into the House in 2006, after they were elected, was Bill C-9 and it dealt with this issue. At that time they introduced about 40 sections of the Criminal Code that would no longer be eligible for conditional sentences.

I thought the height of hypocrisy was when they did their public relations work on this and they talked about these being serious violent crimes that were no longer going to be eligible. I have to say, and I say this with some pride on the part of myself, my party and the opposition parties, that there were four or five, maybe six, sections of the code that in fact did deal with serious violent crimes. Some were sexual assaults; some were robbery with violence; they were those types of crimes.

The opposition parties said that the government was right, that people who commit these crimes and are convicted of these crimes, even when the judge is saying they should not go to jail for more than two years, should not be eligible for conditional sentences. We agreed to that.

However approximately another 35 sections had nothing to do with violent crime. The one I always use as an example of these sections that we were not going to be able to consider conditional sentencing for was falsifying a testamentary document such as a will or trust document. That was going to be excluded from consideration of the use of conditional sentence. And we could go through the list. There were some forgery sections that are clearly nothing to do with a violent crime. At the end of the day, the opposition parties stripped that bill of those 35-odd sections, dealt with the serious ones and passed it, and it is now law.

There is one other point we have to make about Bill C-9, because to some degree, not as severely, it is going to be repeated if Bill C-16 goes through. Early on in the committee process of Bill C-9, I asked the Department of Justice to tell me and the committee how many more people were going to go into custody. At the time, and it was not much smaller then, there were about 12,000 people in custody. If Bill C-9 had gone through as originally proposed by the government, there would have been an additional 5,000 people incarcerated in our provincial institutions every year.

The point I want to make, and we are seeing this again when we see the Minister of Justice and the Minister of Public Safety come before their respective committees, is that they do not know, and if they do know, they are obfuscating what is in fact the reality. At that period of time, both those ministers were in front of the justice committee and neither one of them knew, until we dug that information out of the Department of Justice, how many people were going to be incarcerated. But they were quite prepared to go ahead and pass that kind of legislation for charges that clearly fit exactly into the rationale of why we started with conditional sentences. They were going to exclude them from use and had no idea of how many people were going to go into custody.

We are seeing the same thing repeated this time. Maybe not with the report that is going to be coming out this week from the Parliamentary Budget Office on how much it is going to cost for one of the other bills that has gone through this House and is now law, but I am still expecting the Minister of Justice to show up at the justice committee, assuming this gets there, and say to us, “Do not worry. Be happy. There is enough room in our custodial settings to take care of all the additional people who are going to end up there.”

If he says that, he is going to be saying it from a complete base of ignorance, because we know, and we heard it from my colleague from the Bloc, that in all of the provincial institutions, without exception, right across all 10 provinces and all 3 territories, their facilities are bulging.

We have an international responsibility. We have signed protocols at the international level to not double-bunk. We have signed those. That is a treaty that this country has committed itself to, and there is not one province in the country that is abiding by it.

We are double-bunking and in a lot of cases triple-bunking, and we are beginning to do it more and more in the federal institutions. Therefore, we are breaching the international commitments we made to other countries.

I want to make one more point about the use of this device, again referring to my colleague who raised the revolving door issue. It is about recidivism. The statistics show and have shown for at least the last 10 years that if someone is put under control under conditional sentencing, within the first year, since that is the comparison we are doing, there is an 11% rate of recidivism where another crime is committed. Oftentimes, I have to say, the vast majority of that 11% is not actually a new crime but a breach of the conditions the person is under. The other 89% live up to the conditions. They are law abiding and do not commit any other crimes.

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5:30 p.m.

Stephen Woodworth

They don't get caught.

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5:30 p.m.

NDP

Joe Comartin NDP Windsor—Tecumseh, ON

The member says they do not get caught. Let us take a look at who does get caught.

Taking the same population base but looking at those who have been incarcerated and what happens in their first year out, 30% are caught and charged with additional crimes. Again, a number of them are clearly breaches of their parole but others are new crimes. That is the reality. If we look at the longer term, the rate of recidivism is even worse for those who were incarcerated. The rate spreads even more than that 11% to 30%. It has been an effective tool.

There is no question that there are certain crimes for which this should not be used and a couple of them, in fact, are in this bill. It is for that reason and that reason alone that we will be supporting it going to committee. We have every intention of taking out the offensive parts.

Let me deal with those offensive parts. I know there was a question earlier today about the disrespect that the government consistently shows to the judiciary, and this bill is another example of it.

There are a couple of clauses in the bill that would shift discretion from the judiciary to the prosecutory. The way that works is that a prosecutor would decide that a person was going to be charged with a certain offence but would have a choice as to whether he or she were going to proceed by indictment, which is the more serious way to do it, versus summary conviction. If the prosecutor decided that it would be by way of indictment, the judge then would have the use of this tool removed from his or her tool kit. He or she could no longer use it, simply by that decision. Even though the judge at the end of the day might say he or she would not be sending a person to a federal penitentiary and not committing him or her to custody for more than two years, the judge still would not be able to use the conditional sentence simply because of the decision by the prosecutor.

Our system should not function that way. It historically has not functioned that way. We have trusted our judges. I will repeat, as I have so many other times in the House, that we have the absolute right to be proud as legislators and citizens of Canada in knowing that we have one of the best judiciaries in the world. I do not think there are any in the world that are better. I might argue that one or two are peers of ours. But we would be taking away that discretion if we passed this bill, in those two clauses in particular.

There are other clauses in here where clearly conditional sentences, given the right set of facts, I would say in the majority of cases, should apply. If the judge says he or she is not sentencing someone to more than two years, conditional sentencing should still be available to the judiciary in those cases. I will get into that more in committee.

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5:35 p.m.

Conservative

David Tilson Conservative Dufferin—Caledon, ON

Mr. Speaker, I always enjoy the remarks made by the member for Windsor—Tecumseh. He has talked about a whole bunch of things, some of which apply to this bill and some of which do not.

The real issue is very narrow. The government is not eliminating conditional sentencing. What it is suggesting in this bill is eliminating conditional sentencing for serious and violent crimes. Some of them are listed: aggravated assault, human trafficking, luring a child, street racing causing death, arson, fraud, counterfeiting, most auto thefts and extortions. I cannot believe that anyone in the House would say that those particular offences should be subject to conditional sentencing. I do not know why we are even getting into that.

My question to the member is on this very narrow issue. Does he agree that those particular charges should or should not apply to conditional sentencing, if someone is found guilty?