Mr. Speaker, first of all, let me say that Canada’s judiciary is under attack.
The new sheriff and his deputy, the Minister of Justice, rode into town and in a few short months have insulted, or have allowed their posse to insult, the Chief Justice of Canada. They infer that she felt her direction came from God, when everyone knows that it is the Conservative Party that takes its advice from God, or so those members would see it.
They publicly and privately accuse judges and justice officials of being liberal and unworthy.
They have just rejected an arm's length committee report on long overdue judicial remuneration.
Finally, they have introduced legislation like this, which is aimed at taking away judicial discretion and making judges readers of meat chart sentencing tables, disregarding the time-honoured legal principle that cases do not stand for grand propositions, but turn neatly on their facts.
Each case is different and our judges have the tools required for dealing with each one of them.
As a rule, judges are nominated following a rigorous process, involving committees comprising presidents of bar associations, chief justices and attorneys general of the provinces.
Before that, there is a rigorous peer review process. Most members of the House will agree this was the case with respect to Justice Rothstein. If so for him, why this attack on the integrity, humility, remuneration and, above all, discretion of our federal judges? It is a question I cannot answer.
I can say that the assault on conditional sentencing is a piece of that puzzle. I can agree with parts of the bill but not others. Coupled with reforms to mandatory minimums, street racing minimums and amnesty for illegal gun owners, this is a general attitude of contempt for justice shown by the Conservative Party.
The point is that law reform and the Criminal Code itself, which I admit was written by a very good Conservative Prime Minister, Sir John Thompson, who has since passed away, are organic processes adapting to times changing and the different instruments that work to keep our society safe. They are always however under the guiding hand in the trenches of our judges, prosecutors, probation officers, defence lawyers and the whole legal team.
It is important to underline that we have a safe society. From 1994 to 2004 the crime rate fell by 12%. It is the perception that has changed. The media sensationalizes crime and, following an American trend, politicians pander to the fear that crime brings in the community.
The problem is, as the Liberal leader said the other day in the House, that Conservative legislation lately seems like it is written on the back of napkins and railroaded through the House. Bill C-9 is one such case. Let me illustrate how.
The current system of conditional sentencing was adopted in response to criticisms that Canada was imprisoning too many of its citizens.
It was thought that too large a share of taxpayers’ money was going to prisons, when the funds could have been spent on constructive crime prevention programs.
Conditional sentencing is one important aspect of sentencing. This type of sentence plays a major role in the rehabilitation and social reintegration of offenders. Unfortunately, the money saved by reducing the number of prison sentences was not reallocated to enough programs. For example, there is a clear need for additional money to increase the number of officers who supervise conditional sentences.
Conditional sentences obviously require supervision. People serving conditional sentences are in our communities. So, supervision is required. The sad reality is that the resources of the people who supervise this type of sentence are strained to the limit.
The program was good; the delivery was not. In the Moncton area, for example, there is one full time supervisor for all conditional sentences. He is unable to ensure that everyone who is on a conditional sentence is in fact at the house when they are supposed to be. He cannot do it. It is a matter of resources and federal-provincial relations.
Many of the breaches of conditional sentences actually happen because the people are out doing other crimes and the supervisor is informed that the crime happened. The supervisor in the Moncton area does have assistance. The provincial jail helps out and calls for compliance. Unfortunately, after one contact is made, the offender will often breach knowing that his number came up and that he is free to go that night.
The largest pitfall, however, with conditional sentences has been the perception from the general public that offenders are not being punished for their criminal actions. This is particularly true of offenders who have committed offences of violence or serious breaches of trust.
When the Criminal Code was amended to include conditional sentences, no offences were excluded.
What had to be determined was whether a person found guilty of an offence was liable to a minimum prison term. If not, the person could receive a conditional sentence as long as the sentence was less than two years.
Prior to these amendments, a person in New Brunswick convicted of dangerous driving causing death or impaired driving causing death would likely receive 6 to 18 months. Since the amendments, a person in New Brunswick is likely to receive a conditional sentence. That does not seem right.
Initially, public prosecutions opposed such granting of conditional sentences. However, following the Supreme Court of Canada decision in Proulx, it became clear that unless specifically exempted, a conditional sentence was available for any offence.
The public is losing confidence in the administration of justice in the area of sexual assaults. Offenders are receiving jail time for offences against children and for violent sexual assaults, but many are receiving conditional sentences as well.
The question now is how to achieve the legitimate goals of the sentencing process while preserving the integrity of the judicial system in the eyes of Canadians.
Bill C-9 is one of the attempts to answer the question. In response to the criticisms of the conditional sentencing system and in view of the fact that the public is demanding more restrictive use of this sort of sentence, the solution seems to be to get rid of conditional sentences for all offences punishable by indictment that incur a sentence of ten years or more.
Including all such offences will not work. This will not bring back the public's confidence. First and foremost the amendment is overreaching. The purpose of conditional sentences was to deal more effectively with non-violent offenders.
Take the case of financial crime offenders. If they were going to jail before, they were not able to make restitution to their victims. A conditional sentence regime works well and is not against the public interest.
Under the regime of Bill C-9, in the haste to get it passed, this will not be the case. There will not be a chance for restitution to widows, orphans and pensioner funds.
The amendment causes hardship for other victims and such is the case with sex offences. At present, a sex offender may receive a conditional sentence. This is not well received by the public. Bill C-9 does not respond to this. The perfect example is the case of summary sexual assault. For those members who are not lawyers and do not know lawyers, the victim of a sexual assault does not like to go through the process of a preliminary inquiry which is entailed in the indictment process.
That is what these victims are put through if there is no redress for it at committee. One factor is the expected sentence. We cannot fault prosecutors for choosing their venue to get a conviction if they have a victim of a sexual assault who is afraid to go both to the preliminary inquiry and to the trial. Nonetheless, if the offender should receive a jail term the Crown could proceed by indictment therefore taxing the resources and again putting the victim through the double peril. Historical sexual offences will also fall outside the scope of Bill C-9.
In conclusion, the only method to ensure the integrity of the conditional sentence regime would be to amend it, to take the time to examine it and amend it. In such a manner public confidence would be maintained and would allow for a greater flexibility in the laying of accusations. The bill is hasty and will not fix the problems. It misses some problems and creates new ones. We will be revisiting the bill at committee and in the future. The sheriff, the deputy and the posse did not hit the bull's eye this time.