JUST Committee Meeting

Notices of Meeting include information about the subject matter to be examined by the committee and date, time and place of the meeting, as well as a list of any witnesses scheduled to appear. The Evidence is the edited and revised transcript of what is said before a committee. The Minutes of Proceedings are the official record of the business conducted by the committee at a sitting.

For an advanced search, use Publication Search tool.

If you have any questions or comments regarding the accessibility of this publication, please contact us at accessible@parl.gc.ca.

Previous day publication Next day publication

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Wednesday, May 14, 2003

1535

The Chair (Hon. Andy Scott (Fredericton, Lib.))

Mr. Vic Toews (Provencher, Canadian Alliance)

The Chair

Mr. Svend Robinson (Burnaby—Douglas, NDP)

The Chair

Mr. Svend Robinson

Mr. Vic Toews

1540

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

Mr. Vic Toews

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

Mr. Vic Toews

The Chair

Mr. Svend Robinson

The Chair

Mr. Vic Toews

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

1545

The Chair

Mr. Derek Lee

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

Mr. Pat O'Brien (London—Fanshawe, Lib.)

Mr. Svend Robinson

Mr. Pat O'Brien

The Chair

Mr. Svend Robinson

The Chair

Mr. Svend Robinson

1550

1555

1600

1605

The Chair

Mr. Svend Robinson

1610

1615

1620

The Chair

Mr. Roy Jones (Director, Canadian Centre for Justice Statistics, Statistics Canada)

1630

Mr. Michael Martin (Chief, Correctional Services Program, Canadian Centre for Justice Statistics, Statistics Canada)

1635

1640

1645

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Mr. Michael Martin

Mr. Chuck Cadman

Mr. Michael Martin

Mr. Chuck Cadman

Mr. Michael Martin

The Chair

Mr. Roy Jones

Mr. Chuck Cadman

The Chair

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ)

1650

The Chair

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

Mr. Réal Ménard

Mr. Michael Martin

1655

The Chair

Mr. Svend Robinson

Mr. Roy Jones

Mr. Svend Robinson

Mr. Michael Martin

1700

Mr. Svend Robinson

Mr. Michael Martin

Mr. Svend Robinson

Mr. Michael Martin

Mr. Svend Robinson

Mr. Roy Jones

The Chair

Mr. Svend Robinson

Ms. Hedy Fry (Vancouver Centre, Lib.)

Mr. Michael Martin

1705

Ms. Hedy Fry

Mr. Roy Jones

Ms. Hedy Fry

The Chair

Mr. Larry Spencer (Regina—Lumsden—Lake Centre, Canadian Alliance)

Mr. Michael Martin

1710

Mr. Larry Spencer

Mr. Michael Martin

Mr. Larry Spencer

Mr. Michael Martin

The Chair

Mr. John McKay (Scarborough East, Lib.)

Mr. Michael Martin

Mr. John McKay

Mr. Michael Martin

Mr. John McKay

Mr. Michael Martin

Mr. John McKay

1715

Mr. Michael Martin

Mr. John McKay

Mr. Michael Martin

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Mr. Roy Jones

Mr. John McKay

Ms. Hedy Fry

Mr. John McKay

The Chair

Mr. Marcel Gagnon (Champlain, BQ)

Mr. Michael Martin

1720

Mr. Marcel Gagnon

Mr. Michael Martin

Mr. Marcel Gagnon

The Chair

Mr. Michael Martin

Mr. Marcel Gagnon

The Chair

Mr. Tom Wappel (Scarborough Southwest)

Mr. Michael Martin

Mr. Tom Wappel

1725

Mr. Michael Martin

Mr. Tom Wappel

Mr. Michael Martin

Mr. Tom Wappel

Mr. Roy Jones

Mr. Tom Wappel

Mr. Roy Jones

Mr. Tom Wappel

The Chair

Mr. Réal Ménard

Mr. Michael Martin

The Chair

CANADA

Standing Committee on Justice and Human Rights

NUMBER 046

2nd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, May 14, 2003

[Recorded by Electronic Apparatus]

¹ (1535)

[English]

The Chair (Hon. Andy Scott (Fredericton, Lib.)): I call to order the 46th meeting of the Standing Committee on Justice and Human Rights.

Today, for the first order of business, we'll be considering Bill C-250, An Act to amend the Criminal Code (hate propaganda). We're doing clause-by-clause consideration. After that, pursuant to Standing Order 108(2), we'll be considering the issue of conditional sentencing with witnesses from Statistics Canada.

Mr. Toews.

Mr. Vic Toews (Provencher, Canadian Alliance): Before you call clause 1, I would like to seek the floor for debate.

The Chair: Mr. Robinson, on a point of order.

Mr. Svend Robinson (Burnaby—Douglas, NDP): Mr. Chairman, on a point of order, I believe I had sought the floor. I did give the chair indication that I was seeking the floor with respect to the business that's now before the committee.

The Chair: Mr. Robinson, I was advised that you wanted to speak first to clause 1, and when I call it, you will.

Mr. Svend Robinson: Thank you.

Mr. Vic Toews: Mr. Chair, before you do call clause 1, I would like to seek the floor for debate.

Over the past several months, my office, and I think every member of Parliament's office--

¹ (1540)

The Chair: Mr. Robinson.

Mr. Svend Robinson: Mr. Chairman, on a point of order, as I understand it, the item before the committee now for debate is Bill C-250. I had sought the floor for debate on Bill C-250, and I trust that having sought the floor, if we're debating the bill, I will be given the floor.

The Chair: Specifically I was advised that when I called clause 1, you wanted to speak first, and you will.

Mr. Svend Robinson: No, Mr. Chairman, I indicated that I wanted to speak to Bill C-250, and Mr. Toews seems to be saying he wants to speak in debate. If we're in debate on the bill, I'd like to speak.

Mr. Vic Toews: Mr. Chair, before you call clause 1, I have a matter to bring to the attention of the chair and the committee.

Over the past several months, my office, and I think every member of Parliament's office, has been flooded with mail from Canadians who are concerned that Bill C-250 will have negative consequences on their right to freedom of expression and freedom of religion. During the committee hearings on this bill, we've heard testimony as to why this will or will not be the case, but the reality--

The Chair: Mr. Robinson.

Mr. Svend Robinson: On a point of order, Mr. Chairman, Mr. Toews is debating the substance of this bill. I have the order of the day before the committee, and the order of the day very clearly states that we are considering clause-by-clause of Bill C-250.

There's no indication that there will be any general debate on the bill. If there is general debate on the bill, I have asked for the floor. If there is not general debate on the bill, if Mr. Toews has a point of order, obviously he's free to raise a point of order. But I'm looking at the order of the day that is before this committee, and that is clause-by-clause consideration of Bill C-250. It's either clause-by-clause or it's general debate. In either instance, I've asked for the floor.

The Chair: The three options that are available to us to deal with a private member's bill are to pass the bill and send it to the House passed; to not attend to the bill, in which case it would be reported back to the House without amendment; or, as the committee decides through a motion, to simply not send the bill back to the House.

In the event that Mr. Toews is presenting a motion to that effect, it has to be entertained. If he's not, then we go to clause-by-clause, in which case you would be the first person on the agenda. In the event that Mr. Toews is putting such a motion, you'll be the first person to speak to it.

Mr. Svend Robinson: If Mr. Toews is now putting a motion.... I had asked for the floor to speak to Bill C-250. I'm not sure whether the clerk could clarify whether Mr. Toews had asked for the floor previously. If he hadn't asked for the floor previously, presumably I have the floor, and I have the same options as Mr. Toews, the same three options that the chair indicated.

With great respect, Mr. Chairman, I had asked for the floor to speak to this bill, and I have the same right and the same opportunity to put forward one of those three options as Mr. Toews does.

The Chair: When Mr. Toews puts whatever he is putting, you will be the first person to speak to it.

Mr. Svend Robinson: Then that's out of order.

Mr. Vic Toews: Mr. Chairman, I've been very patient, and it's for the chair to determine what's in order.

As I've stated earlier, the reality is that we may well do our best as legislators, but nobody really knows how the court may interpret the law until these cases are tried. While no member on this committee condones the promotion of hatred against anyone, I think we're all very concerned, and we are indeed all very concerned about the harm that results to both individuals and society. I think we can all agree that it's our duty here to ensure that any legislation we approve is legally and constitutionally sound.

Given the serious questions that this bill raises, I think a more in-depth consideration of the bill is in order. Therefore, I would move the following motion, which--

The Chair: Mr. Robinson, on a point of order.

Mr. Svend Robinson: Mr. Chairman, on a point of order, I don't want to belabour the point here, but Mr. Toews now appears to be attempting to make a substantive motion with respect to this bill. He's entitled to do that when he gets the floor. I had specifically asked the chair, as he entered the room, for the floor. I confirmed with the clerk that I was the first person to request the floor on this bill. On that basis, I would again urge you to recognize that whatever Mr. Toews....

I wasn't sure exactly where he was going, but if he's going to suggest an option to this committee under the terms of the standing orders, that's a substantive intervention on debate. I have the right, having first requested the floor, to put forward one of those three options. I would appeal to you to recognize that I have asked for the floor for that purpose.

The Chair: That is the understanding I had, Mr. Robinson. That is my position.

Mr. Toews.

Mr. Vic Toews: Thank you.

I will therefore move the following motion, which Mr. O'Brien will be seconding: that, pursuant to Standing Order 97.1, the committee report to the House and recommend not to proceed further with Bill C-250, An act to amend the Criminal Code (hate propaganda), and recommend that the Minister of Justice examine the subject matter of Bill C-250 with a view to dealing with the issues it raises, in conformity with fundamental Canadian freedoms.

In fact, I have copies of the motion. It has been translated and is available for distribution.

The Chair: Mr. Toews has presented a motion. Does anyone want it read? It reads as follows:

Pursuant to Standing Order 97.1 the committee report to the House and recommend not to proceed further with Bill C-250, An Act to amend the Criminal Code (hate propaganda), and recommend that the Minister of Justice examine the subject matter of C-250 with a view to dealing with the issues it raises, in conformity with fundamental Canadian freedoms.

You've heard the motion. I don't think I need a seconder.

Mr. Robinson has the floor.

Mr. Lee, on a point of order.

Mr. Derek Lee (Scarborough—Rouge River, Lib.): I wanted to make the point that we may or may not be getting ready to drop ourselves into a procedural black hole here. I don't know, but looking at the baggage around the table, it is always a possibility. For the benefit of the chair, if Mr. Robinson is about to be recognized on debate on Mr. Toews' motion.... Am I correct on that?

¹ (1545)

The Chair: That is correct.

Mr. Derek Lee: I can't teach the chair much beyond where we already are, so I'll stand down my comments that I wished to make earlier on a point of order and let the proceedings carry on.

The Chair: Mr. Robinson.

Mr. Svend Robinson: On Mr. Lee's point of order, Mr. Chairman, for clarification, the notice of this meeting indicates that we're scheduled to sit from 3:30 p.m. to 5:30 p.m. and it also indicates there are witnesses on the issue of conditional sentencing. I'd like some guidance from the chair, before I speak, as to when the committee expects to hear from the witnesses from Statistics Canada.

The Chair: That may be a bit of a moving target, Mr. Robinson. I would hear the preliminary discussion around Mr. Toews' motion and at some point I will ask the committee how it would like to proceed, depending on how that debate goes.

Mr. Svend Robinson: But the meeting is scheduled to adjourn at 5:30 p.m.

The Chair: The meeting is scheduled to adjourn at 5:30 p.m. and we are scheduled to hear officials from Statistics Canada on conditional sentencing sometime between now and then. I am in your hands.

Mr. Svend Robinson: I want to be very clear, Mr. Chairman. I think this is a motion that is very important and I have considerable comments to make on the motion, but in fairness to the witnesses who have come to speak to this committee on the issue of conditional sentencing, I want to be very clear to the committee and to my colleagues that should the committee decide it wishes to hear the witnesses originally scheduled on conditional sentencing, I would be quite happy to yield the floor to those witnesses, obviously on the understanding that when they had completed their evidence, the floor would return to me. I want to be very clear on that, Mr. Chairman.

The Chair: I think Mr. McKay and others of us understand quite clearly, with some vast experience, exactly what you mean.

Mr. Svend Robinson: Thank you, Mr. Chair.

Speaking, then, to the motion of Mr. Toews on this bill, we are now obviously at a very critical stage in the consideration of this legislation. As I look around the committee table, I have to say that I have seldom felt as great a sense of anger and betrayal as I feel today with respect to this bill. I look at members on the other side of this table, who have never attended a meeting of this committee when it considered this bill on hate propaganda, who showed up today to vote against the bill, Mr. Chairman. I see members of this committee--

Mr. Pat O'Brien (London—Fanshawe, Lib.): I have a point or order, Mr. Chairman.

Mr. Svend Robinson: Mr. Chairman, I believe I have the floor.

Mr. Pat O'Brien: A point of order, Mr. Chairman, of course always takes precedence. The member would know that.

It's my recollection that it's out of order to refer to the absence of members, whether in the House of Commons or in committees of the House of Commons. As a matter of fact, I recall being properly brought to order by the chair on that. It's totally out of order for the member to make the comments that he's just made.

The Chair: My apologies to Mr. O'Brien. I have taken him to task on this subject. I would prefer that we not get into attendance.

I think the point has been made, Mr. Robinson.

Mr. Svend Robinson: Mr. Chairman, I know the rules. I was not referring to the absence of members, but to the presence of members. I was referring to the presence of a replacement for the parliamentary secretary to the Minister of Justice by a member of that party who has voted against every equality provision affecting gay and lesbian people that has come before the House of Commons.

The Chair: Mr. Robinson, I think there'll be plenty of opportunity outside of this venue to bring attention to the absence of particular members. In this case, by referencing the parliamentary secretary, you are doing that. Just to save you from told that, I would bring it to your attention now.

Mr. Svend Robinson: I appreciate that, Mr. Chairman. But I do want to make the point.

I've been here for a while, and there are few bills on which I think parliamentarians have an opportunity to actually make a decision that affects the lives, the security, and the safety of the citizens whom we have the honour of representing.

This bill is not a complicated bill; in fact, it has one clause, Mr. Chairman. The purpose of the bill--and members will be familiar with it, those who have followed it--is to add to the hate propaganda sections of the Criminal Code the words “sexual orientation” to ensure that those who are gay or lesbian, bisexual, or transgendered, or just as importantly, those who are perceived to be gay or lesbian, should be given equal status under hate propaganda laws.

Mr. Chairman, when the hate propaganda laws were first adopted in Canada in 1970, two years previously all homosexual conduct in Canada was illegal. Gay people were criminals if they engaged in any form of sexual activity. They were locked up and imprisoned--two years before this hate propaganda law came into force. Fortunately, we've moved some distance since then in a number of areas. But let me tell you--and I say this to members of the committee--there are still far too many people who are gay or lesbian or are perceived to be gay or lesbian who are victims of hate crimes in our country today.

The committee heard evidence--those who were present--from Inspector Dave Jones, the head of the hate crime section of the Vancouver Police Department. Inspector Jones spoke eloquently and powerfully on behalf not just of himself and the Vancouver Police Department, which he did, but also on behalf of the Canadian Association of Chiefs of Police and the Canadian Association of Police Boards. Here's what he said to this committee. He said that in the existing hate propaganda sections of the Criminal Code, there are four grounds that are covered: colour, race, religion, and ethnic origin.

Those are important grounds, and it's important that as parliamentarians and Canadians we recognize that hatred that is directed at any individual in one of those groups should be condemned in the strongest possible terms. Racism, anti-Semitism, attacking people on the basis of their religious belief or ethnic origin is an anathema, and those attacks happen all too frequently today as well.

But what Inspector Dave Jones told us is that there are actually five groups that are targeted for hate crimes in Canada today. One of those five groups is the only one not included in the existing provisions of the Criminal Code on hate propaganda--only one--and that's gay and lesbian people, those who are distinguished on the basis of sexual orientation. He said it's not as if gay and lesbian people aren't targeted for hate crimes. In fact, he pointed out that in a study done for the Vancouver Police Department hate crime section, the largest number of hate crimes in the greater Vancouver area were directed at those who were victimized on the basis of their sexual orientation.

I'll quote from his study. He said, “Most significantly though, in Vancouver sexual orientation forms the basis for 62% of the assaults and robberies against the groups protected under s. 718.1. Sexual orientation was also the basis for a murder in Vancouver.” In other words, what he's saying is that we have a law that protects some groups from hate crimes, but the group that is most frequently targeted for those hate crimes is left totally unprotected. Those crimes still take place in Canada.

¹ (1550)

Inspector Jones mentioned a murder. On November 17, 2001, a gay man named Aaron Webster was beaten to death with a baseball bat. He was killed for one reason, Mr. Chairman. He was killed because he was gay. We learned just recently, and tragically, that those who have been charged with this crime were young offenders from my home community of Burnaby, high school students in Burnaby who beat a man to death because he was gay.

Those who would promote that kind of hatred and violence can do so in Canada today with total impunity, because the law is silent. The law sends out a signal that as long as we say it's wrong to attack those who are victimized on the basis of race, religion, ethnic origin, or colour and we don't say anything about gays and lesbians, there's an implicit licence there to beat people up.

I want to tell you that it's not just about violence either, hate propaganda laws. Words can be very powerful, very painful, and can lead to death. That's part of what this bill is about, saving lives of young people who are victimized by those words that constitute hatred.

I don't want to share with you, as members of the committee, an example of those words that killed a young boy in a community that Chuck Cadman knows well, the community of Surrey. I want to share with you a letter that was written by a 14-year-old boy named Hamed Nastoh.

Hamed Nastoh was in school a couple of years ago. He walked home from school to his home in Surrey--I've been to his home, a suburban middle-class community--and he took out a pen and paper and wrote a letter to his mom and dad about words, about hate.

Here's what he wrote. I want committee members to listen carefully. I have the letter here in front of me. He said:

Mom, Dad,

First thing is, I love you Mom and Dad, but you didn't understand why I had to commit suicide. There was so much going on and I tried to cope with it. But I couldn't take it any more.

School is the main reason. It was horrible. Every day I was teased and teased. Everyone calling me Gay! Fag! Queer, and I would always act like it didn't bug me and ignored them, but I was crying inside. It hurt me so bad because I wasn't Gay and they kept on saying I was and I would pray to God every night for everyone to stop saying that. Sure I had a lot of friends, but they weren't real friends. My own friends thought I was Gay. Sure they could deny it, but they know I'm right.

I was hoping things would get better, but they didn't. There was no other way out. This counsellor told me when she came to talk to our class about suicide that usually the person committing suicide gives hints. I gave you guys many hints, but it wasn't your fault you didn't understand. I lied to you, saying my friend killed herself, even though she didn't. It's against our religion to kill yourself.

I didn't do this for people to feel sorry for me. I did this so people would learn. I did this because of them, all of the people at school. I want them to feel bad for the rest of their lives.

When you tell my teacher that I killed myself, I want you to tell her the reason too, because everyone at school called me Gay and teased me. And I want all those people to know it's their fault. Even if they never said it to my face, they said it. They can deny it, but deep down inside they know who they are. When people said it, my own friends never backed me up. They just laughed!

I know you're going to miss me, and that you will never forget me, but you would never understand. You weren't living my life. I wasn't as happy as I looked. I hate myself for doing this to you. I really hate myself, but there was no other way out for me.

I know I left my room messy. You can clean it if you want. But please don't sell anything or throw anything away. Even though I will be dead, I still want this room I have to be my room. And don't take any pictures down.

God, this was a long note. I'll wrap it up.

I love you, Dad and Mom. Please tell the people at school why I did this. I don't want anybody else to have to do what I did. This was a message to show what name-calling and teasing can do.

Sure, I could have taken a gun and shot everyone in the head, like all those school shootings, but what would the point be? Then that would have made me a bad person.

Oh yeah, David, you were and will always be my best friend. I won't forget you. You better not forget me. But whenever you miss me, Dave, just come and sleep in my room.

Well, this is the end. I love you, Mom and Dad, and especially you, David.

P.S. Also: Hakim, Khatera and Grandma. I hope Shabnam learns how to walk soon. I love all you guys. And one more time I have to mention this. Please make people stop name-calling and teasing other people because it really hurts. That's just my only wish and I hope people will listen to me!

Please visit my grave often so I'm not lonely.

When you tell my teacher why I killed myself, I want you to tell her the reason, too, that because everyone at school called me gay and teased me. I want all those people to know it's their fault. Even if they never said it to my face, they said it. They can deny it, but deep down inside they know who they are. And when people said it, my own friends never backed me up, they just laughed.

I know you're going to miss me and that you will never forget me, but you would never let me down.

¹ (1555)

Hamed Nastoh was 14 years old. After he wrote that note to his parents, he had a backpack, he filled his backpack full of rocks and he walked over a mile to a bridge called the Pattullo Bridge. He jumped off that bridge and he killed himself.

But he left a message. He left a message that words hurt, that words can be painful. In his case he left a message that words kill.

An important part of what this bill is about is sending a message out to every community in this country that those kinds of words that promote hatred, that promote violence, that cause anguish and pain, are not acceptable.

That doesn't mean that we don't believe in freedom of speech. I fought all my life for freedom of speech. What it does mean, though, is that when that speech promotes hatred to the point that people are incited to violence in some cases, and killing, or bashing people, then as a society we say that's wrong.

I thought that was a pretty straightforward concept, to be honest with you, Mr. Chairman. I really did. I didn't think this would be a complicated issue. I didn't think it would be a controversial issue. In fact, it was almost 15 years ago that I tabled the first bills to amend the hate propaganda sections of the Criminal Code to include sexual orientation.

It took a long time, but it looked like there was movement toward the acceptance of this principle, Mr. Chairman. In fact, it was in October 1998 when provincial attorneys general, together with the federal Attorney General, had a meeting in Regina. They have an annual meeting of the federal, provincial, and territorial ministers of justice, all of them. In October 1998 the ministers agreed to move ahead to amend the Criminal Code to include sexual orientation in the hate propaganda sections.

Mr. Chairman, you'll recall that the following year, in fact it was November 1999 in your home community, there was another bashing. A young law student, 24 years old, named Robbie Peterson was coming out of a bar late at night in downtown Fredericton. He was kicked in the back, punched in the head and the face. He was attacked from behind, thrown to the ground. He was attacked because he was gay, Mr. Chairman. He was accused of being a “faggot”, and his attacker hurled anti-gay insults as he fled off into the night.

He was gay. Hamed Nastoh wasn't gay, but he was gay. He was beaten up very badly.

º (1600)

That was in November 1999, and shortly after that attack, in December 1999, I asked the Minister of Justice what else it was going to take to move ahead on this legislation. She said, “We're going to be making the changes to the code, Mr. Robinson. I promise you we'll make the changes to the code.” That was in December 1999.

I'm going to take some time here to take you through the chronology, because I think it's important that you be clear on exactly what the history of this is.

That was in December 1999. In November 2001, almost two years later, the government had still not acted on that promise. And on November 17, 2001, Aaron Webster was brutally murdered. Hedy Fry knows of what I speak; it was in her constituency. It was a terrible, tragic, violent event of a decent human being who was loved by everybody who knew him. And he was killed, beaten up, because he was gay.

Four days, Mr. Chairman, after Aaron Webster was beaten up and killed, I got up in the House of Commons and I put this question to the then Minister of Justice, Anne McLellan, and I quote:

Two years ago, after a young law student in Fredericton, New Brunswick was brutally beaten simply because he was gay, the minister promised to add sexual orientation to the criminal laws on hate propaganda and she said that she would do it within months. After last weekend's brutal murder of Aaron Webster, who was beaten to death by being repeatedly clubbed with a baseball bat, when will the minister finally move to ensure that she adds gays and lesbians to the protections of the hate propaganda section of the criminal code?

November 21, 2001, Mr. Chair. Here's what the minister responded. She said:

Mr. Speaker, the solicitor general and I will be meeting with our provincial and territorial colleagues next week and this is a matter I will take up with them. We had the opportunity to discuss it some time ago but, after consultation with my provincial and territorial colleagues, if there is general agreement to proceed, we will do so.

So there we are. First, in 1999 the minister said within months she would move to change this legislation; that was after Robbie Peterson was beaten. In November 2001, after Aaron Webster was murdered, the minister said, “There's a meeting coming up next week; if I can get agreement from my provincial and territorial colleagues, we will amend the law.”

So what happened, Mr. Chair? Mr. Chairman, what happened was that in fact the ministers did meet. The provincial and territorial ministers met in late November 2001, and here's what happened.

The ministers agreed. The minister consulted with her colleagues and here's what the provincial and territorial ministers said. They unanimously agreed to change the law. They couldn't change it themselves, but they agreed unanimously to call on the federal Minister of Justice to include sexual orientation in the hate propaganda sections of the Criminal Code.

I spoke personally with the then Attorney General of Saskatchewan, Chris Axworthy, who said, yes, every minister around that table agreed to this. The Attorney General of Manitoba, the Justice Minister of Manitoba, Gord Macintosh, said it was pathetic that the issue got lost somewhere in Ottawa for two years. It got lost somewhere. A promise was made. It got lost.

Finally we're there. So on December 11, 2001, Mr. Chairman, after that meeting, I once again called on the government to act, to honour the promise that had been made by Liberal justice ministers. And I got a response. I was very pleased, Mr. Chairman. It looked as if we were finally getting some action.

Here's what Stephen Owen said, and members will know Stephen Owen, a Liberal member of Parliament. He was then the parliamentary secretary to the Minister of Justice, the position that Paul Macklin holds today. I see he's not here today and has been replaced by Tom Wappel.

An hon. member: Order.

º (1605)

Mr. Svend Robinson: But, Mr. Chairman--

The Chair: The damage is done, but I would ask Mr. Robinson, respectfully--

Mr. Svend Robinson: I won't make reference any further to the absence of Mr. Macklin, Mr. Chairman.

An hon. member: That's the third time.

Mr. Svend Robinson: Mr. Chairman, here's what Stephen Owen had to say, and he was then speaking on behalf of the minister. He was the parliamentary secretary to the Minister of Justice and Attorney General of Canada. He said:

The member for Burnaby--Douglas has raised this issue on a number of occasions.

He referred to the tragic death of Aaron Webster, and then--and I want to quote directly from what the parliamentary secretary said at that time--he said this:

The minister, as the member said, agreed to raise this with her territorial and provincial counterparts in the justice ministries on November 28 and as he said, she did raise it. The minister was able to achieve consensus in that group as reported, that the identifiable groups which the hate propaganda provisions, and there are three offences under those sections, apply to should be extended to include the factor of sexual orientation. I think not a moment too soon, but given the years and some disagreement in the country about these issues and public ideas about this policy, I am very pleased to be able to say tonight that the minister will be putting forward amendments to the Criminal Code of Canada to add sexual orientation to the definition of an identifiable group under the hate crime provisions. I thank the hon. member for his persistent and principled tracking of this issue

and so on.

So Mr. Chairman, there we have it. On December 11, 2001, a year and a half ago, the parliamentary secretary to the Minister of Justice, speaking on behalf of the minister, said the minister would be putting forward amendments to the Criminal Code of Canada to add sexual orientation.

Mr. Chairman, I think all of us who believe in equality and want to put an end to this, to the extent possible, and to send out a signal that these crimes are unacceptable celebrated that announcement. We believed that announcement. Even though it had been made previously, in this instance we had a unanimous agreement of every attorney general in the country and the federal Minister of Justice.

So the House rose in December 2001 and we waited, Mr. Chairman, and we waited. I went to the Minister of Justice, the new Minister of Justice, Martin Cauchon, and I said, look, there was a promise made here by Anne McLellan, your predecessor, a promise that was made by the parliamentary secretary, to move ahead on this legislation. It's important that you do so. Are you going to move it? Are you going to introduce a bill? Because if you're not prepared to introduce a bill, I said to the minister, I'm obviously quite prepared to move ahead once again with my private member's bill.

Given the commitment that was made by the parliamentary secretary, I assumed, and I think Canadians had a right to assume, that the minister would honour that commitment and move ahead. There was no indication from Minister Cauchon that he was prepared to move ahead, so as the members will know, I tabled my bill yet again--the fourth or fifth time I had tabled the bill--to ensure that if the minister wouldn't act, at least Parliament would have an opportunity to debate this and, hopefully, to pass the bill.

I want to point out as well, Mr. Chairman, in saying there was unanimous agreement to move ahead on this legislation, that it's very important to note there was a range of political views around that table at the meeting of the provincial and territorial attorneys general. There was a range of views.

Dave Hancock, for example, is the Attorney General of Alberta. I want to tell you that Dave Hancock is not generally known as a wild-eyed socialist. He's a pretty conservative guy. Here's what Dave Hancock said. He said that protecting gays from hateful propaganda has nothing to do with endorsing homosexuality. He said, and I quote:

I support the hate crime legislation which prohibits people from spewing hate against anybody for any reason. There are appropriate ways to discuss issues in our country…and you don’t need to put forward hateful literature. It doesn’t matter what you believe about sexual orientation.

That's the Attorney General of Alberta, Mr. Chairman, on this legislation.

Again, there was a range of views. The Attorney General of British Columbia, Geoff Plant--and Mr. Plant and I don't always see eye to eye on issues--he, as well, indicated he felt it was important that there not be an ongoing examination. He said:

And the good news is that it looks as though the justice ministers are all on side, in terms of saying, 'Let's take this step to protect gays and lesbians from the virulent hate propaganda that exists out there'.

º (1610)

Then there was a very interesting statement, Mr. Chairman. At the same time, shortly after the ministers of justice met, the House leader for the Canadian Alliance--my colleague from British Columbia, John Reynolds--said that he would support this change to the Criminal Code. He said that he couldn't say if the official opposition would back the amendment, but that he would support it. He pointed out that the old Reform Party opposed a bill in 1994 that would have allowed judges to increase sentences for violent crimes based on hatred against a number of groups. He said, and I quote now directly from John Reynolds: “It makes sense to me. I don't believe in incitement of hatred against anybody.”

I was pleased to have the endorsement of Mr. Reynolds for my bill, for this important concept. And I have to say I was kind of surprised as well, because, as I'm sure members of this committee know, the Reform Party and its successor, the Canadian Alliance, have voted against each and every bill that's come before this House since the beginning of their existence as parties that would in any way extend equality to gay and lesbian people, Mr. Chairman--every bill.

They voted against amending the Canadian Human Rights Act to prohibit discrimination based on sexual orientation, a bill that says you can't throw somebody out of their home or fire them from their job because they happen to be gay or lesbian. I guess it's not terribly surprising when one of their members said that it's okay to send people to the back of the shop if they happen to be gay or lesbian.

So they voted against human rights legislation, Mr. Chairman. They voted against the provisions with respect to hate crimes, the aggravating factors. They voted against any recognition of the relationships of gay and lesbian people. They voted against the pension provisions, Mr. Chairman. So I have to say I wasn't terribly surprised when the justice spokesperson for the Canadian Alliance said that they were not going to support this bill. It was consistent with the position they've taken from the beginning, that they don't believe in equality for gay and lesbian people, certainly not at the federal level anyway, and they voted against everything.

I am pleased, though, that some members of the Canadian Alliance have indicated that they support my bill. James Moore, one of my British Columbia colleagues from the Canadian Alliance, for example, strongly supports this legislation. So it's not a monolithic opinion there.

But again, to be clear, I expected this position from that caucus given their history, Mr. Chairman. I have to say I was a little surprised that when my bill came before the House for debate...because it was a votable bill, of course, which is how it made it this far. There was a possibility that it could be debated for three hours, Mr. Chairman. Well, much to my astonishment, the bill passed after one hour of debate. Any member of the Canadian Alliance could in fact have blocked it at that point, but they didn't. They let it go. They let it go to committee.

That was obviously a good sign, because they know the rules. If they had wanted to stop it, they could have stopped it, but they didn't. That was a hopeful sign. I had no illusions that it meant they were going to support the bill, but just to be clear in terms of the record. So, Mr. Chairman, we know their track record and their position.

But I have to say, Mr. Chairman, what really saddens me--and frankly, what really appalls me--is that members on the government side, members of a party calling itself “liberal”, members of a party that used to be led by Pierre Trudeau, who, to his credit, was the Prime Minister responsible for decriminalizing homosexuality.... In fact, his Minister of Justice was another former leader of that party, John Turner; he was responsible for the legislation. I have to say I was astonished when it became clear to me that although I had thought it would be an issue of just fundamental justice, a basic fairness of recognizing the right of people to live their lives without being subjected to hatred and violence, in some way this bill was not going to be supported by government members--some government members, I hasten to add that.

º (1615)

I'm pleased there are members on the government side who have consistently supported this legislation. I mention the member for Vancouver Centre, the member for Notre-Dame-de Grâce--Lachine, in particular. I can't speak for the chair, and I won't speak for the chair--he can speak for himself on this issue--but I do know he spoke out strongly against the bashing of Rob Peterson in his home community and I have a sense of where he's at.

I was also very pleased, Mr. Chairman, that the Conservative Party spoke out strongly in support of this bill. During debate at second reading, John Herron, the spokesperson on behalf of the Conservative Party, said that he was rising, not just personally but on behalf of that party, to support this bill.

Peter MacKay was here earlier; he had to leave. Peter MacKay was here to support this legislation, a Conservative, a “Progressive” Conservative. Frankly, I think it puts to shame those members--who call themselves “liberal”--who are not prepared to vote in support of an issue of fundamental justice like this.

º (1620)

[Translation]

I'd also like to acknowledge the unwavering support of my Bloc Québécois colleagues, and I'm not just referring to my friend Réal Ménard who from the very beginning has been a staunch advocate for the rights of gays and lesbians, in particular with regard to issues of equality and justice. I'm also talking about the party leader, Mr. Duceppe, about Mr. Gagnon who is here today, and about Mr. Marceau, the other permanent member of this committee. All of these individuals support the bill.

[English]

So, Mr. Chairman, we are witnessing the possibility that this bill will be defeated. And I say the possibility because I hope it won't come to this, and I intend to set out over the course of the next period of time the reasons why I hope it doesn't come to this. But should it come to this, should this bill be defeated, I think it's important we understand what led to its defeat.

What will lead to its defeat is literally an unholy alliance between the Canadian Alliance members on this committee and Liberals members of this committee, some of whom--and I speak now not of those who are not here--have never showed up at this committee before to deal with this bill, and that is shameful.

The Chair: Mr. Robinson, it's almost 4:30. I'm thinking about the witnesses who are here from Stats Canada. If it is the committee's desire, we could hear them. When they're finished, the floor would be given back to Mr. Robinson until 5:30, when we go.

Since no one seems to object, we will proceed in that way, given that the Stats Canada people are here. I'm going to suspend briefly. When we resume after we have heard from the witnesses, the floor will belong to Mr. Robinson.

º (1622)

º (1627)

The Chair: I call the meeting back to order. I welcome the witnesses from Statistics Canada: Roy Jones, the director of the Canadian Centre for Justice Statistics; and Michael Martin, chief of Correctional Services Program, Canadian Centre for Justice Statistics.

I don't know what time you thought you might start, but if this is later than that, I apologize. I understand you have a presentation of ten to fifteen minutes. If you would make that presentation, we'll see what happens in terms of the committee.

Without further ado, I go to whoever intends to open the presentation.

Mr. Roy Jones (Director, Canadian Centre for Justice Statistics, Statistics Canada): Thank you very much, Mr. Chairman. It's a pleasure to be here in front of the committee today to provide a very brief statistical overview of the statistical report we released that covered conditional sentencing.

The conditional sentencing special study was conducted over the last couple of years with our colleagues in the provinces and territories to collect information to fill a gap in information on conditional sentencing. Before I turn the presentation over to my colleague Mr. Martin, who is more expert in the methodology and conduct of the study, I have a couple of preliminary comments about the study itself.

If you turn to page 2, slide 2, of the deck we distributed and that you should have in front of you, I'll begin by just indicating that the data for the study were collected during 2001 and 2002. This covers four full years of information from the provinces that were able to participate in the study from 1997-98 through to 2000-01. The analysis excludes data from 1996, the year in which the provisions were enacted, because that was an incomplete year of coverage and there were some delays in the jurisdictions in their ability to provide information to us immediately after enactment.

As many of you know, conditional sentences apply only to sentences of less than two years, and the supervision of conditional sentences is a provincial/territorial responsibility. Therefore, the analysis in our study was limited to provincial/territorial correctional programs and provincial/territorial offenders. There are no data in the report relating to federal offenders sentenced to any type of sentence longer than two years.

Provincial/territorial correctional services have the responsibility for many different types of programs, such as pre-trial detention--otherwise known as remand--bail supervision, fine option, and community service orders, to name a number of them. The analysis, however, in this report is limited to the three principal types of sentenced offenders in the provincial system: those sentenced to custody orders of less than two years, those sentenced to probation orders, and those serving a term of a conditional sentence.

Now, the principal objective of the study was to look at the impact of the new provisions of conditional sentencing on patterns of sentencing in Canada and to examine the caseload characteristics of the conditional sentence population. The data in the report are supplemented by some data we have from our regular survey program, an adult criminal court survey that is operating in the provinces and territories, as well as an adult correctional services survey, which is an aggregate collection of summary information from the correctional programs in, again, the provinces and territories.

Limitations to the resources and the timeframe we had available to collect this information meant that only summary information could be collected from the provinces and territories. We don't have detailed case characteristic information from the provincial systems.

At this point I will turn the deck over to my partner here, Mr. Martin, for about a ten-minute presentation. He'll go through some of the detailed highlights from the report released on May 9.

º (1630)

Mr. Michael Martin (Chief, Correctional Services Program, Canadian Centre for Justice Statistics, Statistics Canada): Thank you.

I'll ask you to take a look at the general graphic on page three. It speaks to the trends in the provincial/territorial sentenced custody, probation, and conditional sentenced admissions since 1993-94. To adjust for changes in crime rate over time, the trends in the graphic are expressed as admission rates per 10,000 persons charged by police. I would just draw your attention also to the exclusion of some provinces and territories in this figure because of incomplete data. These were New Brunswick, Manitoba, Nunavut, and the Northwest Territories.

Although this is a relatively short period over which to look at trends, it would appear that conditional sentencing has had an impact on the use of incarceration. Prior to 1996, the use of sentenced custody was increasing and then began to decline following the implementation of conditional sentencing in that year. This decline took place across all jurisdictions, although there was variation in the magnitude of the decline and the exact timing of the decline. In most jurisdictions, sentenced custody has continued to decrease, while the use of conditional sentencing has increased.

The effect of conditional sentences on use of probation, however, is less clear, with overall probation rates increasing slightly prior to 1997 but remaining stable since the implementation of conditional sentencing. Jurisdictionally, however, the picture is varied, with some jurisdictions showing large increases in the use of probation since conditional sentencing and others showing large decreases.

Figure 4 provides an illustration of distribution of offenders admitted to provincial/territorial correctional services. You will note that the distribution has changed since introduction of the conditional sentence. During 1997-98, which was the first full year of conditional sentence, half of the admissions to corrections were to sentenced custody. By 2000-01, as a result of the decline in sentenced admissions to custody, probation and conditional sentence both increased as a proportion of admissions and now represent slightly more than half of admissions. This trend has taken place almost everywhere, in most of the jurisdictions.

Now, as detailed in the report, the proportion of admissions to custody, probation, and conditional sentence varies considerably across jurisdictions. For example, conditional sentences range from 3% of admissions in P.E.I. to 16% in Quebec; custody sentences range from 28% of admissions in Nova Scotia to 58% in Alberta; and probation ranges from 29% of admissions in Quebec to 62% in Nova Scotia. However, the gradation in change still holds even with the variation in proportions.

Figure 5 provides a slightly different perspective on the proportional distribution of the population. This is looking at what we call the stock counter, the number of people who are in the system at any particular point in time. It should also be noted that this particular figure excludes federal offenders, so this is a count of the provincial/territorial population.

Because community sentences are generally much longer than custodial sentences, the average counts of offenders on probation or serving conditional sentences tend to be much higher relative to the number of admissions that you saw on the previous page. In 1995-96, on the left side of the figure, prior to conditional sentencing, community supervision--probation only in this case--comprised 88% of sentenced offenders.

In 2000-01, with the imposition of conditional sentencing, community supervision comprised 91% of sentenced offenders, and sentenced offenders represented about one in ten offenders. While the volume of conditional sentenced admissions is only 20% that of sentenced custody, because of their longer relative sentences, their number in the average count is about the same as custody.

º (1635)

In figure 6 on the next page, we can see a profile of offenders on probation, sentenced custody, and conditional sentence for violent offences in select provincial jurisdictions. In all instances, provincial offenders on probation are more likely to have been convicted of a violent offence than an offender on conditional sentence. Offenders in custody in these jurisdictions were least likely to have been convicted of a violent offence. This is largely due to the large proportion of violent offences that are minor assaults. Also, serious violent offenders are likely to receive a penitentiary sentence; that is, they're sentenced to two years or longer and are under the jurisdiction of federal Corrections and would not show up in these figures.

In most jurisdictions, property offences were, however, the most common type of offences for conditional sentences, with the exception of Manitoba and Saskatchewan, where violence was the most common.

A notable finding in the study was that conditional sentence offenders are frequently convicted of drug offences, which comprised 17% to 27% of conditional sentence admissions in 2000-01. In comparison, drug offences represent fewer than 10% of sentenced custody and probation admissions. The proportion of conditional sentence for drug offences has been growing since implementation of conditional sentencing in 1997-98.

Moving to figure 7, this figure provides an indication of the length of conditional sentences. In this particular case, we can see there has been a trend toward conditional sentences of longer duration across most jurisdictions since 1997-98.

Actually, let me correct myself on that. While there has been a general trend, the figure does illustrate that conditional sentences are generally short, with a large proportion of them being six months or less. This compares with probation admissions overall, where only 10% were of a duration of six months or less among the nine jurisdictions that were able to report this data. There was considerable range, however, from 4% in Quebec to more than a quarter of admissions in Nova Scotia.

As for custody, 86% of custody admissions were for a duration of six months or less, ranging from about 60% in Saskatchewan to more than 90% in Quebec.

Figure 8 uses court-based data to examine the extent to which conditional sentences are being used alone or in combination with other sanctions. As you can see, the amount of data is currently limited but is gradually expanding as more and more jurisdictions develop the capacity to report conditional sentence information to the particular survey that collected this data, which was the adult criminal court survey at Statistics Canada. However, this data suggests that conditional sentences are often combined with other community-based sanctions, such as probation, restitution, or community service.

Figure 9 provides an overview of the most prevalent conditions of conditional sentence supervision. It has been included for your information, but I'll not be discussing it in detail, given the limited time we have. You can also find this information in the special study. The same table is there.

Figure 10 shows the proportion of provincial community corrections admissions involving aboriginal persons for conditional sentences compared to custody and probation. Also indicated at the bottom of the chart is the proportion of the adult population for each jurisdiction who are aboriginal persons. It has been consistently documented that aboriginal offenders are overrepresented in the corrections system compared to the general population, with the extent of overrepresentation varying across the jurisdictions. As is clearly illustrated, the proportion of aboriginal offenders is higher in sentenced custody than in conditional sentence or probation in most jurisdictions. However, the proportion of aboriginal offenders is higher on conditional sentence than on probation, so we see a sloping gradation there.

These differentials may be partly due to differential criminal profiles of aboriginal and non-aboriginal offenders. Two key determinants of sentencing are prior criminal history and severity of offence. And from a prior study that we did at CCGS, we know that incarcerated aboriginal offenders are more likely to be in custody for a greater number of offences, and that a greater proportion of aboriginal offenders compared to non-aboriginal offenders are in custody for violent offences, including sexual assault and serious assault.

º (1640)

Turning to figure 11, we get some kind of indication on breach outcomes from the special study. We asked for conditional sentence violations and their outcomes in order to provide an indication of success rates and outcomes of conditional sentence. As you can see, the response was limited. This data is very difficult to get, but we did get some from a number of jurisdictions.

It should be noted as well that the data are only aggregate. These outcomes can't be linked with any other information on conditional sentences, sentence cases, or the offender that would allow one to examine specific factors that may be associated with success or failure in complying with conditions. Also, information on reasons for the breach were largely unavailable.

As is indicated by the data, however, there is considerable variability among the jurisdictions in breach rates, ranging from 11% failure in Ontario to 57% in Saskatchewan. Not all breach offenders, however, will be returned to custody, but a sizeable proportion will nevertheless be incarcerated for at least a portion of their conditional sentence.

To keep pretty close to my time limit here, the last slide is slide 12, in which we have provided a general indication of the differential cost of provincial/territorial incarceration compared to community supervision. Note that the annual inmate cost includes remand and other temporary detention. This is significant because over recent years the number of remand inmates have increased considerably, effectively consuming the resource savings associated with reductions in the sentence population in recent years.

I should also note that included in the custody counts are persons who may in fact end up sentenced to more than two years and who eventually serve a custodial sentence in the federal system. With respect to the remand inmates, however, I should also note that these inmates are generally more expensive to house because of higher security requirements. This also partially explains the increase in costs.

With respect to the community costs, these include other programs and services besides conditional sentence and probation, such as conditional release or provincial parole supervision, fine option programs, and bail supervision. However, probation and conditional sentences comprise the bulk of the workload and the expenditures.

While there are substantial differences between average provincial custodial and community costs, it should be remembered that the median time served in sentence custody ranges from about two weeks and two months across jurisdictions, where the median probation length is about twelve months.

That concludes my presentation. Thank you very much.

º (1645)

The Chair: Thank you very much.

Mr. Cadman, for seven minutes.

Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

I'd like to thank the witnesses for coming. I know it was a little bit difficult today. I'm glad you were able to make your presentation.

Going back to page 11, could you clarify why you're saying this kind of data is difficult to get, as far as the breach outcomes go? Could you explain why you have difficulty getting that? Do you have any suggestion as to where we could get more complete data that would give us a true national representation?

Mr. Michael Martin: The information on breach outcomes--and this applies also to probation--often relates to the way the administrative processes occur and the actual paperwork transactions that relate to filing probation breaches. As it currently stands in most jurisdictions, their automated information systems frequently do not have this particular type of information, so it becomes very difficult for them to tabulate. Because their automated systems don't track it, it becomes very difficult to be able to link this information with the characteristics.

As it currently stands, there is a gap in the ability to collect this at the jurisdictional level. That gap is gradually closing as information systems improve. We can see that with Ontario, Manitoba, and Saskatchewan. Not long ago, they probably wouldn't have been able to provide this.

The other part of this, of course, relates to our ability to collect these data as well. We are implementing surveys that will actually get at this information, but up to this point we have not been able to fully implement the data. The capacity to get these is not fully there yet.

Mr. Chuck Cadman: So what you're saying is there is an ongoing process aimed at actually trying to improve the gathering of the data?

Mr. Michael Martin: Absolutely.

Mr. Chuck Cadman: Do you have any idea how long it will be before we can actually have something solid we can rely on?

Mr. Michael Martin: That's a little harder to say. It's a progressive situation. At the CCGS currently, in the correctional service society—and I'll comment on that one right now because it's the one I'm responsible for—we currently have a survey model in place that will collect this, and we hope to be implementing it over the next few years. But that's subject to our ability to fund that activity and progress as quickly as we'd like to.

That's the one side of it. Another approach to this is what comes through on the court side. On that side, concerning what the courts do with conditional sentencing, oftentimes it's not handled as a formal docket-related activity, and so it becomes very difficult to track. It's something that comes up in the court proceedings, and you can get it from the transcripts, so we have difficulty collecting it in the courts' data.

I don't know if you wanted to add to that, Roy.

The Chair: Mr. Jones.

Mr. Roy Jones: Yes, in the court system we will be getting information from the original sentence from every jurisdiction. We've implemented every jurisdiction except Manitoba now for 2002. We will get detailed information on who's being sentenced to conditional sentences by age, by sex, by nature of offence. We'll be able to track that through our micro-data collection over time for re-entries into the system. We do that currently as well with breach-of-probation information. We have that for every province except Manitoba, and the information from Manitoba should be available within two years; they're implementing a new system as well.

There's a little difference between probation and conditional sentences: one goes back to court formally on charge; the other doesn't. To the extent that the systems in courts' areas can accommodate the non-charged information, we will be looking to get the information, but it's less comprehensive, and it's less certain we will get it in some jurisdictions.

Mr. Chuck Cadman: Thank you.

The Chair: Thank you, Mr. Cadman.

Mr. Ménard, you'll have seven minutes.

[Translation]

Mr. Réal Ménard (Hochelaga—Maisonneuve, BQ): Thank you, Mr. Chairman.

I have no wish to share too much of my personal life with you, but I did take a course in criminal law with Bernard Laprade who works at the Justice Department, I believe. Not that I want to complain, but in law, exams counts for 100 per cent of the final mark. That doesn't make a lot of sense, but that's another issue.

If memory serves me well, the topic of discussion today is amendments made to the Criminal Code in 1996 in cases where sentences of less than two years are imposed at the judge's discretion and cases where there is every indication that the accused person represents no threat to society.

Is that in fact the focus of our discussions?

º (1650)

[English]

The Chair: Mr. Martin, or Mr. Jones.

[Translation]

Mr. Michael Martin: Yes.

Mr. Réal Ménard: Fine. However, sections 742.1 through 742.7 of the Criminal Code are totally discretionary in nature. Judges are entirely at liberty to impose a conditional sentence. Am I correct to understand on reading section 1.3 of your study that since these provisions exist in the Criminal Code, courts of law are increasingly leaning toward conditional sentencing. Is my interpretation of this part in fact correct?

Mr. Michael Martin: Yes.

Mr. Réal Ménard: And this is a positive step in that it corresponds to section 718 and results in savings for the correctional system.

Mr. Michael Martin: Generally speaking, some savings will result from the shift from sentenced custody to conditional sentencing.

Mr. Réal Ménard: Therefore, this approach is in keeping with the aims of diversion, even though the sentence is handed down by the judge. A conditional sentence cannot be imposed at the preliminary hearing stage. It's handed down at the sentencing stage. Correct?

Mr. Michael Martin: Yes, that's correct.

Mr. Réal Ménard: Basically, what distinction are you trying to make in the table between probation and conditional sentencing? In both cases, the accused person must satisfy a number of conditions. What do you mean in Table 3.5.4 by sentenced custody, probation and conditional sentences?

Mr. Michael Martin: What we're trying to point out in Table 3.5.4 is that the correctional services population has decreased, particularly with respect to persons in custody. The proportion of offenders in custody has declined compared to the community system.

Mr. Réal Ménard: In terms of the law and relations with Correctional Services Canada, what's the difference between conditional sentencing and probation?

Mr. Michael Martin: Generally speaking, conditional sentences...

[English]

Mr. Réal Ménard: You can speak English. I have translation. Don't be shy.

Mr. Michael Martin: All right.

If you fail the conditional sentence, then you can be brought back before the judge immediately and returned to incarceration. On probation, one needs to proceed with a new charge, and it requires a trial. So there is an immediacy to consequences in conditional sentencing that does not exist in probation. That is one significant difference. Generally speaking as well with the conditional sentence, that immediacy can be a return to incarceration, whereas a breach of a condition of probation will usually not result in reincarceration.

Another key difference between a conditional sentence and probation is the severity of the condition, or the way the conditions are structured. As you can see in the one figure on the conditions—and this was one I actually passed by; it was figure 9—if you look at the first two columns, “house arrest” and “curfew”, you see that a large proportion of conditional sentences have those, which are quite strict conditions. You will not see that kind of profile on a probation. These are some very key differences that you will see between conditional sentence and probation.

Also in the report there is an overview of the types of policies. For each jurisdiction we report on all the policy structure of conditional sentencing. One thing you will notice is that the provincial and territorial jurisdictions responsible for supervising conditional sentence all allude to the severity of the offence and the requirement for close supervision. What one will generally see is much more intensive supervision under conditional sentence than probation, and that's specified in policy.

So those are some examples.

º (1655)

The Chair: Thank you very much. We'll be back.

Mr. Robinson.

Mr. Svend Robinson: Thank you very much.

I too want to thank the witnesses for appearing this afternoon. I'm particularly pleased to see them here.

I want to ask if the witnesses could share with the committee any information respecting unexpected data that emerged from this study—any trends that were a surprise, anything that stood out to you from what had been anticipated at the time the conditional sentencing provisions were implemented in the Criminal Code.

Mr. Roy Jones: I'll answer that question first. We didn't go into the study with any preconceived understanding of what the provincial systems were going to do in reaction to the implementation of provisions. We were asked simply to try to document in volume terms the extent to which the provinces were taking this up as a sentencing alternative to incarceration in the provincial system, and also to get a general idea--again because of the aggregate nature of the study--of what types of offences and offence categories were being subject to conditional provisions.

Speaking from a statistical perspective, given we've seen a number of amendments to the Criminal Code over the years, one of the things that did surprise us was the immediacy of the response of the provincial systems to be able to accommodate enacting that provision. They seemed to take to the provision fairly early and have continued to use the provision.

In other instances--and please don't ask me for an example, but there are examples available--we sometimes see implementation of provisions that are taken up in some jurisdictions some of the time, not all of the time, and in some cases the enthusiasm with which they are taken up begins to wane over time. This hasn't been the case with conditional sentencing.

Mr. Martin may have some comments on this as well, but my understanding is that generally the provincial administrations are quite happy with their ability to use this provision.

Mr. Svend Robinson: Mr. Martin.

Mr. Michael Martin: Actually, Roy already provided what I was going to point out. We did not have any preconceived notions. I guess you could say it was to some extent an adventure. But the thing that did stand out when I looked at the data was the rapidity with which this particular sentencing provision was seemingly adopted. The numbers were at a very stable level very early on. As Mr. Jones indicated, once we see implementation we frequently see something we call an implementation effect and there is a bit of a delay in either its use or its reporting. We didn't see too much of that here. It came up very, very quickly. So that was the big surprise.

» (1700)

Mr. Svend Robinson: Of course, one of the concerns that have been raised publicly in a number of jurisdictions is the extent to which offenders who are sentenced to conditional sentences commit crimes while they are in fact serving those sentences. Have you looked at this issue specifically, and if so, what information can you share with the committee about the number of offences that are committed by those who are sentenced to conditional sentences as opposed to those on probation?

Mr. Michael Martin: That is something we did ask. I wish I could share something with you, but unfortunately that is one of the gaps we have. As I mentioned, the violations were difficult to report, and getting to that level of detail, what the violation specifically was for, was even more difficult to obtain. So that is not something I have in front of me.

Mr. Svend Robinson: I'm a little surprised at that answer, because obviously, from the perspective of the public, one of their major concerns is the extent to which in any way public safety might be compromised or jeopardized by a move to conditional sentences as opposed to those who are sentenced to custody. Of course, we've seen a decline of a little over 3,000 people who presumably, if the statistics and same trends had applied, would have been in custody and are now on conditional discharge. You're saying that you have no statistics at all as to the extent to which those who are serving conditional sentences have been subsequently convicted of crimes or what the nature of those crimes might be. Is that right?

Mr. Michael Martin: My simple answer right now, in terms of the scope of this particular study and what we can get from our Corrections survey, is no, we don't have that. As I mentioned previously, we are in the process of trying to develop and implement--we've developed, but we are trying to implement--a new Corrections survey to fill those data gaps. Those data gaps will be filled, I guess you could say, in the fullness of time as we get those data collection processes in place and as jurisdictions do the same.

Mr. Svend Robinson: How much time do you think will elapse before you're in a position to be able to report to Parliament, to this committee in particular, as to, in a sense, the efficacy of these sentences, at least from the perspective of the public?

Mr. Roy Jones: I should think within two years, provided we have dedicated resources to undertake the analysis. We should be able, in combination with the courts' information, to do some data linkage at the individual level to put together the profile of individuals, a cohort of conditional sentence defenders, and look at their subsequent offending and conviction behaviour. But as I say, we only have data from a number of jurisdictions at the micro level that is prerequisite for doing that type of analysis.

With some hesitation, I raise the issue of resourcing. We have a relatively small budget to conclude the implementation across all sectors of the criminal justice system. It's certainly predicated, in terms of the timeframe in which we can move forward, on the ability of the provinces and territories to also dedicate resources, and significant resources, to put in place the systems that will allow us to pull down those data without doing very expensive, one-time-only special studies to look at these issues.

The Chair: Thank you very much.

To Ms. Fry, for seven minutes.

Mr. Svend Robinson: I did have other questions, Mr. Chair, but maybe you could put me down for a second round.

Thank you.

Ms. Hedy Fry (Vancouver Centre, Lib.): Thank you very much, Mr. Chair.

I wanted to turn to page 11, please. It's interesting that Ontario only had 11% of completions resulting in a breach. I've cross-referenced your other statistics and I can't see anything that Ontario does in terms of combinations or whatever that's really different except that they seem to have a very low percentage under house arrest. Why is this? Is there any reason why Ontario seems to have this very marked difference in statistics?

Mr. Michael Martin: At this point in time, I don't have a very specific answer as to why this difference exists. If you look across...that order of magnitude or those percentage differences actually spread across Ontario into Manitoba and Saskatchewan as well, because Saskatchewan is higher even yet. It may be a function of any number of different kinds of things.

One of the caveats here, of course, is to do direct comparisons of the data because of different administrative regimes. Different administrative policies can be a little bit...I shouldn't say dangerous, but it's one of the limits of the study where the definitions.... Because of costs, because of the timeframes we were working with, we could not perfectly harmonize all of the concepts across all the jurisdictions so that everybody was counting things in exactly the same way. So while this is indicative, a direct comparison isn't necessarily completely valid. So some of this may be due to purely administrative differences in the way they collect or report the data. But others could be differences in the way they administer the caseload as well and the types of discretionary policies they have in place.

» (1705)

Ms. Hedy Fry: Quickly going over this book you gave us, I notice Ontario seemed to have a probation officer or some sort of officer, a case worker, who tended to have, if not a one-on-one, at least a one-on-two or -three relationship, while a lot of other groups tended to use the telephone to check up on the person under conditional sentencing. I wondered if that meant Ontario was using a far more superior method of dealing with conditional sentencing or actually implementing conditional sentencing and is there something to learn from that? That is what I was wondering, if there is anything we can learn from what Ontario is doing, and do you think there could be a direct correlation between the way they administer the actual sentencing and this result? Or am I really taking a leap of faith here?

Mr. Roy Jones: I'll reference the fact that when we look at the rates of breach of probation, another community program, we do see the same types of differentials in orders of magnitude. In Ontario, less than 20% of probation orders on average are breached, and in Saskatchewan we're looking at closer to half the probation orders being breached. That is similar to the distribution for conditional sentencing in those two jurisdictions.

As to how they've implemented or why that is the case, we have on our resource operational plan for this coming year an assessment of probation orders and we'll be going back to the community to talk to the jurisdictions about how they're monitoring and administering the probation services. We may have an opportunity in that study to talk to them as well about what it is they're doing, particularly with conditional sentencing since many of the same agents are involved.

Ms. Hedy Fry: Thank you.

The Chair: Thank you very much.

Mr. Spencer, for three minutes.

Mr. Larry Spencer (Regina—Lumsden—Lake Centre, Canadian Alliance): Thank you, Mr. Chairman.

I was planning to ask some of the same questions you've just been discussing, because I noticed that the percentage of completions resulting in breach are only 11% in Ontario, but they're three times that in Manitoba and five times that in Saskatchewan. Have you addressed that as best you can, why there are those radical differences? It seems extremely low at one end and extremely high on the other. I can understand a great difference between Ontario and Saskatchewan, but Manitoba and Saskatchewan are quite similar in their makeup.

Is there a difference in the systems? Have you clarified that all you can?

Mr. Michael Martin: I think your last observation is right at this point in time. At this point, this is as much as we know.

As Mr. Jones indicated, we plan to dig into the whole area of supervision, what goes into community supervision and the differentials across the jurisdictions, this upcoming year. That's currently in our operational plan, because it has been an identified concern within the national justice statistics area--well, actually, across jurisdictions--the differences in terms of how caseloads are being managed, differential supervision, differences in policy, the kinds of discretions that apply. That particular study may provide us some insight into why these numbers look the way they do.

At this point in time, in terms of the very specifics, I don't have that information.

» (1710)

Mr. Larry Spencer: I've also noticed the lowest number of breaches is in Ontario and also the lowest percentage of breaches returned is in that same province. Manitoba, of course, has the highest number of returnees, but Saskatchewan is considerably higher--those returned to custody for full sentence.

There again, is that due to provincial law or the system, the percentage of returnees?

Mr. Michael Martin: As far as the returnees are concerned, there are a couple of factors playing here. One of them, of course, is a question of the court and the decision being made in the court when the breach is brought forward--whether the court decides to return the person or not. The other part to be considered here is that, as I mentioned, these have traditionally been very difficult data to obtain. This is one of the first instances for us where we've actually received these kinds of data.

One of the potential issues when we talk about learning curves of collecting data is that we're early in the data collection process on this type of information. What we may also be seeing here is a bit of what we may call an implementation effect, where the data collection and the actual...the way the system responds to this is still evolving. So the numbers, I would say, have still some way to go. They're a little shaky, I guess. That's a possibility here, because again, we have not collected these kinds of things before. Most jurisdictions have never provided these kinds of things or even been able to collect them before.

So that may be a factor that's operating here as well, and we hope to be able to clear it up.

Mr. Larry Spencer: So as I understand it, you are doing two things with this. You're learning how to collect the data evenly, properly, as well as ascertain what's going on in the different systems.

Mr. Michael Martin: Absolutely.

As Mr. Jones indicated at the very beginning, he identified the two principal objectives, but there was an actual third objective, which was to be able to understand a little bit more about the measurement issues with respect to conditional sentencing, because we've never done a complete data collection on it before.

The Chair: Thank you very much.

Mr. McKay, for three minutes.

Mr. John McKay (Scarborough East, Lib.): Thank you, Mr. Chair and witnesses.

Referring to page 11, a page Mr. Spencer was interested in, my first question is what's a completion?

Mr. Michael Martin: “Completed” is where they've concluded the terms of their conditional sentencing and are released.

Mr. John McKay: So 11% of completions resulted in a breach.

Mr. Michael Martin: Yes.

Mr. John McKay: I'm not quite sure I follow that point. Explain it to me.

Mr. Michael Martin: Those people who were completed in 2000-01 were concluded because they concluded successfully, or they concluded because they went back to jail on a breach—they had a breach that occurred. They may have been released back to the community, but then they will have concluded as well.

What we're asking here is, of all the people who finished up during the year, how many will have been sent back to jail for the rest of their sentence? That would have acted as a termination right there. How many people will have been sent back for part of their sentence and then returned to the community? At the end of their community period, that would again have been the termination, or the conclusion marker.

Mr. John McKay: Let's put it in simple language. We have 100 people who have been sentenced, and 11% of those completions resulted in a breach. Are we saying that 89%, then, successfully completed their conditional sentence?

» (1715)

Mr. Michael Martin: Without a breach; that's correct.

Mr. John McKay: Okay. So 11% go bad, and of that 11%, half of them went to back to jail. Another 23% returned for the rest of their sentence—that means stayed in the community?

Mr. Michael Martin: No, what I meant here was they returned to custody to serve the rest of their sentence. Pardon me; it meant that 23% were returned for the rest of their sentence. If you're returned to custody, you can be returned for part of the period of time or you can be returned to serve the rest of your sentence.

Mr. John McKay: So of 11%, half finished their term in jail, and the other half.... It doesn't add up here. There's something missing here.

Mr. Roy Jones: Let me take a run at it, please. You're right, 11% of the conditional sentences in Ontario resulted in a breach. The other 89% completed the terms of their conditional sentence without a breach. Of those who failed because of a breach, half of those—half of the 11%—went back into custody for at least some portion of the original custodial order: not all of it, but part of it.

Mr. John McKay: So they don't necessarily finish off in jail?

Mr. Roy Jones: No. If it's a two-year conditional sentence and they breach at six months, the court may order them to go into jail for a month, or six weeks, or something.

Mr. John McKay: You've been a bad boy; go to jail.

Mr. Roy Jones: You've been a bad boy; don't do this again or you'll be back here longer. But in nearly a quarter of the cases of those 11%, they were returned to custody and stayed in custody until the full term of their sentence was served. If it was a two-year-less-a-day sentence and they breached at six months, they went back in for the 18 months.

Mr. John McKay: So of our 11%, 23% just go to jail until the end of the sentence, period.

Mr. Roy Jones: Of the 11% who breach.

Mr. John McKay: Yes, a quarter of them; and half go back to jail for a part, and the other 27% are slapped on the wrist and stay in the community.

Mr. Roy Jones: That's right, or something has happened: they've altered a condition, or they've given them a warning, or something else has happened.

Mr. John McKay: Okay. And then you get quite a substantial variance from province to provide in the numbers of people who successfully complete these conditions-of-sentence programs. What's the explanation? Is it that Ontario is far less aggressive in its interpretation of what constitutes a breach?

Mr. Roy Jones: That would be a reasonable assumption, that's right, that the threshold for a determination of breach is different in Ontario.

Mr. John McKay: Basically in Ontario you have kick the doors down in order to be able to construe this to be a breach.

Mr. Roy Jones: That would be a contributing factor. The other would be that their program is more successful in preventing people from committing breaches.

Mr. John McKay: Well, Ontario is just all that much warmer and fuzzier, I think.

Ms. Hedy Fry: Or more efficient and effective.

Mr. John McKay: I like warm and fuzzy.

On page 7—

The Chair: Well, I like warm and fuzzy too, but I'm going to have to come back to you, because Mr. Gagnon is warm and fuzzy also.

[Translation]

Mr. Marcel Gagnon (Champlain, BQ): Thank you, Mr. Chairman.

On page 12, you quote two figures pertaining to costs, namely $39,400 and $45,200. Does the difference represents the savings to be realized when an offender serves his sentence in the community? How did you arrive at these figures? Why are costs so prohibitive? Does it have anything to do with inmate supervision?

Mr. Michael Martin: The columns on the left represent inmate costs, while the columns on the right represent community costs. The column on the far left corresponds to 1995-1996. Year-over-year costs increased. As I said earlier, we have seen an increase in the number of remands, which could account for the cost increase. The cost difference between a sentence served in the community and a sentence served in custody can be attributed to the fact that in prisons, more resources are required for inmate supervision.

» (1720)

[English]

There are more guards necessary. The probation officer supervises 50 or 100 people, whereas in the jail you require a very large infrastructure. To supervise a person 24 hours a day, to have a person in there, you have to have all the staff. There's the feeding. There are all the costs associated.

[Translation]

Mr. Marcel Gagnon: Why are the costs of supervising an offender serving his sentence in the community so prohibitive? In financial terms, are there any real savings to be had?

[English]

Mr. Michael Martin: There certainly is a financial saving in the community. The differences in the order of magnitude of costs between the community and custody are quite substantial.

I'm not quite sure if I followed exactly the question.

[Translation]

Mr. Marcel Gagnon: Earlier, we heard how conditional sentencing translated into savings for the community. I'd like to know what these savings really are, that is how much is saved when conditional sentencing is imposed vs. custody. If these figures are any indication, there isn't much of a difference.

[English]

The Chair: This is a question to Mr. Martin.

Mr. Michael Martin: The difference is that on the custody side, to use 2000-01 as an example, the costs were $45,200 per inmate per year, and it cost $1,300 per year to supervise a person in the community.

[Translation]

Mr. Marcel Gagnon: Fine. Now I understand. Thank you.

[English]

The Chair: I have three names left on my list and we're almost out of time.

Monsieur Wappel.

Mr. Tom Wappel (Scarborough Southwest): Thank you very much, Mr. Chairman. I have two quick questions.

Good afternoon, gentlemen.

I have a very quick question about page 7. Could you help me read that? It talks about “conditional sentences” and “frequently six months or less in duration”. What do the two parts of the graph mean?

Mr. Michael Martin: What this indicates is the proportion of conditional sentences that are six months or less. For example, in Newfoundland--the first bar--76% of conditional sentences have a duration of six months or less.

Mr. Tom Wappel: That's good. Thank you.

I realize you're from Statistics Canada and not the Department of Justice. I understand that. I also note there are people here from the Department of Justice who could take note of my question if you can't answer it.

In this document--“Conditional sentencing and...”--which you produced, you have on page 11 a synopsis of the case of R. v. Proulx. The last sentence in that synopsis states:

The Supreme Court stated that when an offender breaches a condition of release without a reasonable excuse, it is presumed that the offender will serve the rest of his or her conditional sentence incarcerated.

That's your synopsis of the Supreme Court's understanding of conditional sentencing, is that correct?

» (1725)

Mr. Michael Martin: Yes.

Mr. Tom Wappel: And according to slide 11, significantly fewer than most breaches result in what the Supreme Court believes, which is to serve the rest of the conditional sentence incarcerated. Isn't that correct?

Mr. Michael Martin: Yes, that's correct.

Mr. Tom Wappel: Do you have any explanation for why the belief of the Supreme Court is not being borne out by the actual statistics?

Mr. Roy Jones: We can't say specifically why, but the presumption that the rest of the sentence would be served in custody is simply that, unless there are other conditions or other factors that are discussed that mitigate that eventuality. That's also why you see there are pretty large proportions that do go back to custody for a period of time, and then they get back onto the conditional component of their sentence.

But it's a presumption.

Mr. Tom Wappel: I understand, but you were talking to Mr. McKay and he eventually found out that about 25%, in effect, get a wrist slap, which presumably would be those who have some sort of reasonable excuse.

If we take a look at your synopsis, one would expect that 75% of the 11% in Ontario, for example, would then serve the rest of their sentences. In fact, only 23% are. Am I reading the stats correctly?

Mr. Roy Jones: You are.

Mr. Tom Wappel: Thank you.

Thank you, Mr. Chairman.

The Chair: Thank you very much.

Mr. Ménard, we're really out of time, so make it very brief, sir, please.

[Translation]

Mr. Réal Ménard: I have two quick questions. As I understand it, no information is available to the committee on the connection between conditional sentencing and recidivism. Clearly, that's something that needs to be corrected in future.

From a financial standpoint, I didn't quite understand the explanation you gave to my colleague, the Member for Champlain. Does conditional sentencing save money, and if so, what kind of savings are we talking about?

[English]

Mr. Michael Martin: With respect to reoffending, at present we do not have any data on that. We did ask that question, but jurisdictions were not able to provide it to us. Currently, it's just not there.

As far as the costs are concerned, conditional sentencing, because of the lower cost of community supervision, is quite clearly less expensive. There is money to be saved, based on the numbers we have here.

The Chair: Thank you very much.

Mr. Ménard, thank you very much.

It's 5:30. I want to thank the panel very much. My apologies for the slow start, but obviously you got the attention of members of the committee.

I'm going to adjourn, but before I do, our next meeting is tomorrow morning at 9 o'clock in Room 237-C. We'll have the Solicitor General before the committee on the main estimates. We'll be on television, so everyone dress nicely.

The meeting is adjourned.