Réal Ménard

[Judges Act, November 8th, 2006]

No? If the House really wants to hear me, Mr. Speaker, I will proceed. I will do anything to please the Conservatives.

Bill C-17 proposes an increase in the salaries of the judiciary of 7.25%, whereas a commission appointed in 2003 recommended an increase of 10.8%.

There are three extremely important principles concerning the judiciary: judges must be independent, that is to say free from any partisan interference; judges must be well paid to avoid any inclination to corruption where they might be tempted to do anything other than their duties as magistrates; and judges must be irremovable, except for misconduct, in which case a mechanism for dismissal involving both houses is provided. From 1999 to 2003, judges and members of Parliament were linked by a common mechanism for salary adjustment.

The problem with this bill, is that the previous Prime Minister, the member for LaSalle—Émard, abandoned that principle and established a very unfortunate precedent. That is repeated in this bill, so much so that if the bill were adopted, the Chief Justice of the Supreme Court would have a higher salary than the Prime Minister. With all due respect for the judiciary, there is a principle of democratic legitimacy which holds that the Chief Justice of the Supreme Court, deserving as she might be, should never have a higher salary than the Prime Minister.

[Judges Act, November 8th, 2006]

Mr. Speaker, unless there is consent to call it 5:30 p.m.—

[Criminal Code, November 3rd, 2006]

Mr. Speaker, I am sorry, but I thought the period for questions was over, so I left the House and did not hear the beginning of my colleague's question.

I believe he was referring to the end of the war on drugs. I agree: it used to be a bigger problem than it is now.

In general, crime rates are dropping for demographic and economic reasons. The economy is doing well, although some urban centres are more affected than others.

Statistically, the concerns we should be focusing on are economic crime and property crime. There has been a net decrease in offences against the person.

Once again, I am sorry I did not hear the beginning of the first part of the question.

[Criminal Code, November 3rd, 2006]

Mr. Speaker, if an individual, regardless where—in Montreal or anywhere else—broke into homes three times, it will not be hard to convince me that it is not a case for conditional sentencing.

Is my colleague asking if this was appealed, if an appeals court upheld the decision? It is easy to understand that this is not a case for conditional sentencing.

Statistics presented in the Standing Committee on Justice and Human Rights indicate that for break and enter offences conditional sentencing is rarely used. We cannot assume that the exception is the rule.

At the risk of repeating myself, I would say that according to the data provided to us, conditional sentencing is a marginal reality of the sentencing system. It happens in only 5% of the cases; three times out of four it is a property offence. It is not about cases where an individual commits three offences of residence theft. In such a situation conditional sentencing would not be recommended.

[Criminal Code, November 3rd, 2006]

Mr. Speaker, our colleague is partly right. The problem is that when we look on a larger scale and more longitudinally, we have no evidence that judges have used conditional sentencing inappropriately. In addition, few cases of conditional sentences for organized crime offences, terrorism, homicide or equally serious offences were brought to our attention.

Moreover, for the latest years for which sentencing statistics are available, conditional sentences account for 5% of cases resulting in conviction.

Did some courts hand down rulings that were more questionable? Certainly, but the remedy for that is appeal, and the parliamentary committee has amended the bill to send a clear message.

Section 752 of the Criminal Code, in the case of personal injury offences, and section 477, in the case of criminal organization offences and terrorism, provide that conditional sentencing must not be used for such offences. We are in favour of having this clearly set down in a piece of legislation. However, the minister had proposed a list of 120 offences, and we disapproved of that approach.

[Criminal Code, November 3rd, 2006]

Mr. Speaker, fortune is smiling on me, I have four and a half minutes left.

I must say, this is what is dishonest about the Conservative rhetoric. In cases in which the Crown believes that a conditional sentence has been wrongly awarded, it is the Crown's duty, its privilege and its responsibility to appeal the decision. During the appeal, it must be proven that a conditional sentence was not appropriate.

That said, let us break this down even further. I have here the list of offences for which conditional sentences have been awarded. These statistics are not from the government, nor the Bloc Québécois. These statistics are from the Canadian Association of Chiefs of Police. Upon reviewing the cases that most often resulted in a conditional sentence, they were, for the most part, offences against property and fraud. There were also a large number of offences against the administration of justice and drug-trafficking offences.

Here again, when we talk about drug trafficking, the statistics can be misleading. As defined in the legislation, drug trafficking does not necessarily mean selling 300 kg of cocaine; it can be something else.

Here is an example. I am in my living room watching Hockey Night In Canada or some other program, and a friend offers me a joint. Did you know that, under the Criminal Code and the Controlled Drugs and Substances Act, that is considered drug trafficking? I am not encouraging people to smoke marijuana or any other substances. What I am saying is that we have to be very careful how we define an offence.

The statistics from the Canadian Association of Chiefs of Police indicate that conditional sentences have been handed down for a large number of offences, such as simple possession of marijuana and similar offences.

In closing, I would ask the Conservatives to keep a sense of proportion and nuance and to have some confidence in the judiciary. In some cases, tougher legislation is warranted.

The Bloc Québécois has introduced an anti-gang bill that reverses the onus of proof for proceeds of crime, in cases of organized crime and situations where people hold positions of significant authority. The legislation may have to be toughened. However, every time an attempt is made to generalize, every time there is a lack of nuance, there is a risk of poor criminal policy.

[Criminal Code, November 3rd, 2006]

Mr. Speaker, I am very pleased to speak to Bill C-9 at third reading stage and to put things into context.

In 1996, the Minister of Justice—if my memory serves me correctly, it was Allan Rock at that time—introduced Bill C-41 following a federal-provincial-territorial conference. At the time of the conference, all the justice ministers—whether they were Liberal, New Democratic, Conservative or separatist—were quite concerned about the possibility of the inmate population doubling. Canada had the fourth highest incarceration rate in the world at the time. When Allan Rock introduced Bill C-41, one third of all inmates were serving time for failing to pay fines.

The government always forgets this little piece of history, but when Bill C-41 was introduced, it received support from all the justice ministers. There was even a white paper on the growth in inmate population and we were well aware that the United States was the country that incarcerated the most, followed by Russia, Canada and South Africa.

When Bill C-41 was passed, an intermediate offence was created between imprisonment and probation, called conditional sentencing. However, it would be terribly dishonest to suggest that conditional sentencing, which is provided under section 742 of the Criminal Code, is not well defined.

Sometimes we hear government types talking as though conditional sentencing were completely up to the judge's discretion, that judges do not obey a single rule and that the legislator left this option open without any framework.

I want to remind this House and the government that before handing down conditional sentences, in accordance with section 742, judges must respect four conditions. First, there must be no minimum sentence. Second, the sentence, imprisonment, must be less than two years. Third, the judge must be convinced that the person does not pose a risk to the community where that person is known. Fourth, the judge must be convinced that the conditional sentence corresponds to one of the sentence determination objectives codified in section 718 in the Criminal Code. This is an important condition, as well, I believe.

Once again, we must remember that the Canadian Sentencing Commission—the Archambault commission—which the Conservatives set up at the end of their mandate in 1984, recommended in its 1987 report that Parliament codify a number of sentencing objectives. Among the objectives listed in the Criminal Code are deterrence, denunciation and reprobation. There is also rehabilitation. The judge must be convinced that at least one of these objectives applies to impose a conditional sentence. There can be a number of objectives, but there are situations where denunciation takes precedence and requires a prison sentence. In a certain number of other situations, the objective is rehabilitation, and the judge can impose probation or a conditional sentence of imprisonment.

Section 742 clearly states that a judge must take a number of factors into account.

Throughout the committee's review of this bill, the Conservatives, with their own special brand of demagoguery, have tried to convince everyone that anyone opposed to Bill C-9 was soft on crime, indecisive and lacking solidarity with victims of crime.

I believe this kind of talk is unacceptable, to say the least. Conditional sentencing is, in reality, an extremely marginal part of the sentencing system.

I have some statistics from the Canadian Association of Chiefs of Police, which supports Bill C-9.

In 2003—these are the most recent statistics available—257,127 cases ended in a conviction. Of those 257,127 cases, 13,267 individuals were given conditional sentences. 13,267 conditional sentences in 257,127 convictions is a little less than 6%.

The Conservatives are worried about conditional sentencing. It is possible that in some of those 13,267 convictions conditional sentences were not appropriate. We must remember that conditional sentencing is a marginal part of the justice system and that it is governed by a number of conditions.

When a court of justice hands down a conditional sentence, the convicted person is subject to surveillance—this can be electronic surveillance, a curfew or a requirement to report to a supervisor or remain in a given jurisdiction. None of this is as discretionary as the government would have had us believe during this debate.

What did the government do with Bill C-9? It tried to introduce a list of offences.

The government, with a deplorable lack of discrimination, asked its officials to find and prepare a list of all offences in the Criminal Code punishable by more than 10 years' imprisonment . The list contained some 100 offences.

Just because an offence is punishable by 10 years' imprisonment does not mean that a judge will impose a 10-year sentence. The list of proposed offences will make it impossible, de facto, for a judge to hand down a conditional sentence.

The problem with this way of doing things is that it is so lacking in balance as to be ridiculous. Why ridiculous? Because there are certain offences in the Criminal Code punishable by five years' imprisonment for which we do not believe that conditional sentencing is appropriate.

For example, failure to provide necessaries of life for a child under the age of sixteen years, pursuant to section 215 of the Criminal Code, is punishable by imprisonment of two years.

However, it is a disturbing offence. It may be more disturbing that a neighbour found guilty of child negligence is free in the community than that someone is sentenced to ten years for pirating software.

Pirating software is certainly a reprehensible crime, a violation of intellectual property and intellectual fraud, but it is not clear that an individual found guilty of pirating software or having stolen a computer cannot serve his sentence in the community under appropriate supervision.

There are other types of offences not included by the Conservatives. Yet, our citizens may find them even more disturbing. For example, infanticide, abandonment of a child, criminal breach of contract, and kidnapping of a child under 16.

Not all these offences appear on the list, compiled by the Conservative government, of crimes that are punishable by ten years in prison or more.

However, that is not what this debate is about. This debate is about the difference between the Conservatives and the Bloc Québécois. I will take this opportunity to point out that all opposition parties—my neo-Bolshevik friends, the Liberals and the Bloc—voted unanimously against Bill C-9 at the committee report stage. Why? Because this is a bill on whose principle we can agree. Everyone agrees that conditional sentences are not a constitutional right. There are offences for which we do not wish the offenders to serve their sentence in the community. The Bloc Québécois has never claimed otherwise, because we are responsible individuals.

It is not a matter of an automatic response and we hope the Conservatives will some day understand this. The Conservatives are opposed to the judiciary. They refuse to believe in the judgment of our judges. I will reword my statement. They refuse to believe in the ability of judges' to properly assess a situation. The Minister of Justice appeared before us. The Minister of Justice is my friend. I even feel like I am his little favourite. He seeks my presence, consults me and respects me. Our friendship will not be jeopardized simply because my party repeatedly opposes his bills. The minister is capable of separating his feelings of friendship for me—which I reciprocate—from the fact that I think he proposes bad bills. Indeed, the Minister of Justice is a man of great quality on a personal level.

However, his election platform makes no sense. As a little aside, thanks to the Access to Information Act, we obtained the analysis conducted by the Conservatives of their own platform. Not one public servant, familiar with the courts and understanding how the system works, would be willing to endorse the Conservative platform.

The Conservatives want to bring the justice system in line with American justice. God willing, this government will never win a majority.

Three ministers were able to cite just four bad decisions out of thousands. The judiciary needs to make it clearer to us as parliamentarians that the courts do not hand out conditional sentences in cases of serious personal injury, sexual assault or confinement, because these are crimes punishable by less than two years in prison.

It is not because a prison sentence is less than two years that the crime is not serious. However, the courts and the judges are far more discerning than the government would have us believe.

I see Conservative members champing at the bit. They want to ask me questions about break and enter, which is obviously a serious offence. The Supreme Court even said that a man's house is his castle. My house was robbed. They stole my VCR, three bottles of wine—you know how little I drink, I am practically a teetotaller—my CD collection, including a Diane Dufresne CD and a Charles Aznavour CD, and my computer. It felt like a terrible violation. It is not very pleasant to have your property stolen. Nonetheless, the Conservatives did not include break and enter in the list of exclusions.

The punishment for break and enter is life in prison. The Criminal Code has never been amended. Since the advent of the Criminal Code in 1892, a judge has never sentenced anyone to life in prison for break and enter.

In serious cases of break and enter a judge is certainly not going to hand down a conditional sentence.

My time is up, Mr. Speaker?

[Criminal Code, November 1st, 2006]

Mr. Speaker, I agree more with what the member said in the first part of his remarks and less with his comments in the second part.

It is obvious that in cases of serious crime—and I repeat, break and enter can be a serious crime—conditional sentencing may not be appropriate.

We do not claim that it is indicated in all circumstances, we do not claim that it is a constitutional right, but we are stating that it may be appropriate in certain cases.

[Criminal Code, November 1st, 2006]

Mr. Speaker, with all due respect for our Conservative colleague, many things differentiate us, but let us say that this is what separates us.

We are convinced that break and enter is a serious crime. I challenge the member to provide an example of when we stated that it is not. Why is it serious? Not only because the Supreme Court said so but also because we realize that our home is our castle and that when our privacy has been violated it is clearly a serious matter.

What is the penalty for break and enter? Life imprisonment. Is that not proof enough that the Criminal Code requires more than just a literal reading?

I repeat, we do not believe that conditional sentencing is a right and that it can be applied without any context. The difference between the Conservatives and ourselves is that we believe in the individualization of sentencing, we have faith in the judges and we refute the Conservatives' soapbox proposals. These solutions often follow an automatic process and so are not nuanced and are devoid of analysis.

[Criminal Code, November 1st, 2006]

Mr. Speaker, I would first like to say that it seems to me that we have a responsibility to be somewhat serious and make decisions based on probative and conclusive data when we have the good fortune to be representing people in public life.

I would like the people listening to us to understand that there is no one in this House who is not concerned about the safety of our neighbourhoods, our communities. There is also no one who wants dangerous criminals or people who do not deserve to be at large being allowed to be. I find the speech that the minister made in this House to be rather insulting, as if the Conservatives were the only ones who are concerned about these issues.

This arrogance, which manifests itself in a very unhealthy certainty, is surely the reason why Quebeckers and Canadians, in their great wisdom, did not give this government a majority mandate.

When we are talking about criminal law or criminal justice policy, we cannot think of things as being black or white. Obviously there are people who will never deserve to be released with a conditional sentence.

There are people who make youthful mistakes or just plain mistakes for whom there should be oversight and supervision and for whom it should therefore be possible to recommend that they serve their sentence in their community. What I find sad is this kind of black and white thinking.

Bill C-9 started from a principle. It took all the offences in the Criminal Code for which a term of imprisonment of ten years or more may be imposed. We realized that there were 120 of these offences, but they are as disparate as making counterfeit money, copying a computer program and sexual assault. Those three offences are certainly deserving of punishment, but the fact is that they do not all have to be interpreted in the same way in terms of the seriousness of their consequences.

The problem with the Conservatives is that they cannot see grey areas. That is not the case for all Conservatives, but it is the case for a large number of them. The result is that they propose criminal justice policies that are absolutely dangerous because they do not allow for grey areas.

I will give a few examples of what I am talking about.

The John Howard Society presented a brief to the parliamentary committee. I think it gave a convincing demonstration of the fact that the ten-year sentence criterion is entirely unsound.

First, I would remind the House of two facts. Conditional sentences are a marginal phenomenon in sentencing practices. According to the most recent statistics available, there were 257,127 cases leading to conviction in 2003. Of them, 13,267 resulted in a decision by a judge at one level or another to impose a conditional sentence of imprisonment. That is a rate of 5.16%.

Conditional sentencing must not be spoken of as though it were widespread.

Second, people must realize that, when section 742 respecting conditional sentencing was introduced into the Criminal Code in 1996, everything was clearly marked out. This was not done arbitrarily. There were, and still are, four conditions to be met.

First of all, a judge cannot impose a conditional sentence if there are minimum prison terms. So right away there are some 70 offences for which conditional sentencing is not an option. Also, conditional sentencing is not possible if the judge imposes a prison sentence of more than two years. Nor is it possible to impose a conditional sentence if the judge is not satisfied that the person does not pose a threat to the community. And it is not possible if the judge is not satisfied that it is compatible with the objectives of sections 718.1, 718.2 and 718.3 of the Criminal Code, which deal with the objectives of sentencing.

There are already certain conditions to be met for conditional sentencing. This is understandable, since naturally a sentence to be served in the community is different from an institutional sentence, even though in 2000 the Supreme Court—in R. v. Proulx—said that it remained punitive.

Obviously it is not the same thing to serve one’s sentence in the community as it is to serve it in prison. Serving one’s sentence in the community is not a constitutional right, but rather a privilege which relates back to certain values and enables individuals to follow a program.

An individual who receives a conditional sentence—with a supervisor—is supervised throughout their conditional sentence. As some witnesses have mentioned, this type of sentence is safer than others because an individual is eligible for conditional release after serving one sixth of their sentence. This individual is no longer supervised afterwards. These facts must be placed in context.

I repeat: the Bloc Québécois is not saying that conditional sentencing is the answer in all cases. Obviously this is not so. This is why judges must know the offender’s profile, the context in which the offence was committed and the risk of reoffending. They must also be satisfied as to eligibility in the light of the four criteria that I mentioned.

The problem with Bill C-9 is that some offences are not punishable by 10 years in prison, yet are far more serious than some offences that carry a 10-year prison term.

One example would be failure to provide necessaries of life for a child under 16, which carries a two-year prison term. In theory, this should raise questions. Neglecting a child seems to me to be more concerning than copying computer hardware or software. Infanticide is punishable by five years in prison. I think that this is a situation where no one would want a conditional sentence. Yet it does not meet the criteria, which specify a 10-year prison term.

Every time the government proposes criminal policies that are so broad that they lack nuances, which we are entitled to expect, this creates problems.

In closing, the Bloc Québécois agrees that some individuals cannot be eligible for a conditional sentence because of the seriousness of their crime or their low potential for rehabilitation or because what they did was so reprehensible that people feel they have no right to a conditional sentence. We need to trust our courts of law to assess these situations. There is no evidence to suggest that the judiciary has improperly used section 742 of the Criminal Code.