Thank you very much, Mr. Chairman.
During the election campaign, our party made a firm commitment to protect families and Canada's way of life by cracking down on guns, gangs, and drugs. Since assuming office, we have taken leadership in tackling crime, with measures to strengthen communities and assist millions of ordinary, hard-working Canadians. It has been one of our five key priorities, along with helping Canadians get ahead by cutting taxes, including a cut in our GST, and introducing a real child care plan. Parents have already begun receiving child care cheques worth $1,200 a year for each child under six. We're also moving towards a patient wait times guarantee and restoring Canadians' faith in accountable, responsible government by introducing the most sweeping accountability measures in our country's history.
As Minister of Justice, I am pleased that we have followed through on our commitment to tackle crime with tough new measures. We are ensuring that criminals are no longer coddled, and the voices and rights of victims are respected. This is what Canadian families and taxpayers expect, and we are delivering results for them.
I am pleased to meet once again with the members of the justice committee, this time to discuss one of those strong new measures, Bill , an act to amend the Criminal Code on conditional sentence of imprisonment.
As you know, a judge may impose a conditional sentence for house arrest provided that the sentencing judge finds that permitting the offender to do so would not endanger the safety of the community, and would be in accordance with the fundamental purpose and objectives of sentencing. The Criminal Code also forbids the use of this type of sentence where the offender was found guilty of an offence that is punishable by a minimum term of imprisonment, or where the offender was sentenced to a term of imprisonment of more than two years. Bill would add a fifth prerequisite that would prohibit conditional sentences, essentially house arrest, for offences punishable by ten years or more that are prosecuted by indictment.
As we had the opportunity to hear during second reading debate on this bill, the government's move to reform the conditional sentences is aimed at limiting those sentences to the cases for which they were originally intended to apply. Conditional sentences were never designed to be used for the most serious offenders, a point made repeatedly by members of the Liberal government of the day when they brought forward the concept of house arrest. This is why this government promised to prohibit the use of conditional sentences for serious crimes, including designated violent and sexual offences, weapons offences, major drug offences, crimes committed against children, and impaired driving causing bodily harm or death.
To quote from a paper entitled “The Conditional Sentence of Imprisonment: The Need for Amendment”, prepared in June 2003 by the Alberta justice minister and attorney general on behalf of British Columbia, Manitoba, Ontario, and Nova Scotia:
|| Allowing persons not dangerous to the community, who would otherwise be incarcerated, and who have not committed serious or violent crime, to serve their sentence in the community is beneficial. However, there comes a point where the very nature of the offence and the offender should result in actual incarceration. To do otherwise brings the entire conditional sentence regime, and hence the criminal justice system, into disrepute.
The options to reform the conditional sentence of imprisonment put forth in that paper included the implementation of a prohibition against the use of conditional sentences for serious crime.
I am aware that members of the opposition are concerned about the scope of Bill . The ten-year maximum sentence threshold represents a clear and straightforward message that serious crime will result in serious time.
I am open, ladies and gentlemen, to considering reasonable amendments that will improve this bill and ensure its early passage. However, in shaping these amendments, we must take into consideration the commitment of this and previous governments that conditional sentences are not to be used with respect to serious crime. Crimes against the person that are prosecuted by way of indictment, offences like breaking and entering and home invasion, are plainly serious offences in the eyes of many Canadians.
An important aspect of Bill is that it targets only offences prosecuted by indictment. For instance, a conditional sentence would still be available for assault causing bodily harm, provided it is prosecuted by summary conviction. As I said during debate in the House, in order to ensure that the sentence is proportionate to the gravity of the offence and to the degree of responsibility of the offender, the justice system will have to rely on the discretion of prosecutors and police to charge an offender appropriately, using summary conviction charges in minor cases only.
Another important aspect of this bill is that while many offenders who would have been eligible for a conditional sentence order will in future serve their sentence in custody, not all will. It is anticipated that some will receive a suspended sentence with probation. Some offenders who would now be eligible for a conditional sentence order will likely get a prison sentence that is shorter than the conditional sentence it replaces, followed by a period of probation of several months.
Mr. Chairman, some have expressed concern that this bill would potentially increase the overrepresentation of aboriginal offenders. However, when considering this, we should also note that aboriginal Canadians are also overrepresented as the victims of crime. Bill is aimed at providing protection to those victims and their communities.
A report released on June 6, 2006, and prepared by the Canadian Centre for Justice Statistics found that aboriginal people were more likely to be victims of crime than were non-aboriginal people. It states that 40% of aboriginal people aged 15 and over reported that they were victimized at least once in the 12 months prior to being interviewed. This figure compares with 28% of non-aboriginal people who did so. Restorative justice is an important tool for aboriginal offenders, but aboriginal victims are as deserving of protection and safety as every other Canadian. Bill is a step to delivering that protection.
In terms of breakdown by type of offence, the study reports that out of 22,878 violent incidents reported to police on-reserve in 2004, 20,804 were assaults, representing 90% of violent incidents reported to police. Common assault, if prosecuted by indictment, is punished by a maximum sentence of imprisonment of five years, pursuant to section 266 of the Criminal Code, and therefore would not be caught by Bill . The CCJS study found that aboriginal people were twice as likely as their non-aboriginal counterparts to be repeat victims of crime, and three and a half times more likely to be victims of spousal abuse. Finally, the study reports that between 1997 and 2000, the average homicide rate for aboriginal people was 8.8 per 100,000 population--almost seven times higher than that for non-aboriginal people, which is at 1.3 per 100,000 population.
Mr. Chairman, considering these statistics, I believe Bill is a necessary step to protect aboriginal victims and aboriginal communities in a manner that closely aligns with the purpose and principles of sentencing as set out in the Criminal Code.
Drug offences and drug-related violence remain a growing threat to our communities and to our Canadian way of life. As I stated when I appeared before this committee on the main spending estimates of the Department of Justice, the number of marijuana grow ops has increased dramatically in Canada, spreading into suburban and rural communities. The production and distribution of drugs such as crack cocaine, methamphetamine, and ecstasy have increased as well. Bill will help to ensure that serious drug offences will result in greater punishment.
This bill applies to the Controlled Drugs and Substances Act, as well as the Criminal Code, by prohibiting the use of conditional sentence for drug offences prosecuted by indictment and punishable by a maximum sentence of ten years or more. Consequently, a conditional sentence order will not be available for trafficking or producing a substance in schedule I or schedule II--except for cannabis--or for trafficking or producing a substance in schedule III if prosecuted by indictment. It would not be allowed, either, for importing or exporting a substance in schedule I or schedule II, or for importing or exporting a substance in schedule III or schedule IV, if prosecuted by indictment.
Mr. Chairman, I would now like to refer to some court cases and submit to this committee that the conditional sentences handed out in these cases were simply unacceptable.
In Regina v. Wong, from the British Columbia courts, the offender, a 42-year-old man and a father of two, pleaded guilty to trafficking in a dial-a-dope scheme involving three sales of cocaine to an undercover police officer. A dial-a-dope operation is a drug enterprise with a certain level of sophistication that permits people at home to order drugs via phone. The drugs are dropped off at a specific location, often at the buyer's home. These types of dial-a-dope operations often involve large amounts of narcotics.
The offender had a previous criminal record at the time of these offences and was under a conditional sentence of imprisonment for related drug offences. Despite the aggravating factors, the court sentenced the offender to two years less a day, to be served in the community--in other words, house arrest.
In Regina v. Kasaboski, an Ontario decision, the 22-year-old offender pleaded guilty to one count of trafficking in methamphetamine and was also charged with trafficking and possession of ecstasy. The facts of this case established that the offender had trafficked 500 tablets of methamphetamine and was later discovered with 200 tablets of ecstasy. The offender had no prior criminal record, but after committing the offences I just mentioned, he was found guilty of failing to attend court and of possessing property obtained by crime.
In sentencing the offender, the court found that he had made substantial efforts to change his life, he had been clean for 17 months, he had held a job in a brewery for 16 months, and his parents were in support of his efforts. The court also said the following:
||Both ecstasy and methamphetamine are dangerous drugs. While the nature of the overall organization with which Mr. Kasaboski was associated is not clear from the facts presented to the court, it is plain that he was well up in the distribution chain. These were not street-level transactions and small amounts, but rather substantial sales for substantial amounts of money. The motive, I infer, was for profit.
The court found that both denunciation and deterrence could be achieved by a conditional sentence of two years less a day.
Another example can be found in Regina v. Basque. In the recent decision of the B.C. court, the offender, a 22-year-old, was found guilty of possession and trafficking in cocaine. The offender operated along the lines of what I described earlier as a dial-a-dope dealer. In reaching its decision, the court found the guilty plea entered by the offender, the fact that he had no prior criminal record, and the fact that the offender was trying to avoid his former lifestyle, to be mitigating. However, the court found the following to be aggravating, and I quote:
|| The aggravating circumstances in this case are: (i) the Dial-A-Dope circumstances; (ii) the fact that the drug purported to be trafficked was cocaine; but the most aggravating is the fact (iii) that this offence took place while Mr. Basque was on an undertaking with respect to virtually the same offence.
Even though these circumstances were present in that case, the sentencing judge sentenced the offender to 12 months imprisonment to be served in the community--again, house arrest.
I submit to the members of this committee that these types of sentences for these types of drug offences are inappropriate. Such cases are not rare. They demand that action be taken by this Parliament to ensure that serious drug crime results in actual incarceration.
Canadians are concerned about sentencing in crimes of violence, as well. It is clear from the case law that house arrest is not a rare occurrence in these cases, either. For example, from Calgary, a Michael John Wilson, age 25, was convicted of manslaughter. Wilson was given a two-year conditional sentence for an incident in which his infant daughter's spine was snapped and her aorta torn, causing her death.
In Toronto, Scott Carew was sentenced to two years of house arrest and 240 hours of community service after pleading guilty to an aggravated assault that left his five-month-old son permanently brain damaged.
In Cayuga, Ontario, James Peart, convicted of ten counts of indecently assaulting boys as young as eight over two decades, was given a conditional sentence or house arrest of twenty months.
In Peterborough, Ontario, Fred Cole, 58, convicted of raping a young girl, was given a two-year house arrest sentence.
R. v. J.G.C., a 2004 case, is a stark example in which the offender, a man in his late thirties, pleaded guilty to sexually assaulting two boys under the age of 14 on several occasions. He used inducements such as video games, candy, cake, and money to gain the trust of one of the boys. The second victim was a cousin of the first. In sentencing the offender to a nine-month house arrest period, the court stated that such a sentence was appropriate because the offender did not represent a threat to the community, did not use force to sexually assault the two boys, and had attempted suicide, which showed a certain degree of remorse.
I personally find the sentences reached in these cases unconscionable, and I'm sure that many members of the public do too. The sentences in these cases do not properly reflect the principles of denunciation, deterrence, and proportionality. This bill will ensure that the sentencing objectives and principles are better reflected in sentences handed down in cases such as these.
I would like to conclude by saying that Bill C-9 is a necessary step toward more just sentences that will protect not only our communities and our children, but also our Canadian values. It will ensure that conditional sentences remain available for those who commit minor crimes and, in all the circumstances, merit the opportunity to serve their sentences at home. But when a criminal commits a serious criminal act, it will ensure that the sentence will be served in custody. The appropriate use of conditional sentences will strengthen confidence in our criminal justice system.
I appreciate the fact that you were here before on estimates and said you would be back with supplemental September priorities because you couldn't answer some of the questions we had then. I'm sure you'll have the answers when you appear before us soon.
I look at Bill C-9, and our party is interested in having some form of restriction on conditional sentencing, so it is a question of what, to what degree, and how we choose the offences that should be there.
We're going to hear a lot of evidence, and we'll have to make our final decisions based on the evidence that's educed before this committee, and our best judgment around the table. But there are a number of issues on which my colleagues and other members will question you.
I note your examples. I also note for the record that the crown could easily appeal those sentences, and I'm sure that they should have or would have in some of those cases. But the fact remains that I thought your presentation today should have included something to do with the costing, because this is going to affect the situation in the provinces and territories throughout the country.
I would like to see tabled before this committee some idea of the projected costing and some acknowledgment or discussion of where you are with your consultations with those who could be most affected in those jurisdictions, because we all know that these sentences will be served at that level and not in federal penitentiaries.
You've also talked about the aboriginal community, and I think it is very true that aboriginal communities are over-represented not only in our penal system, but among the victim community. I agree with that.
It is the amendments that are going to be the work in progress here, Minister. You have now come before this committee twice to say you are amenable to amendments. Are your bureaucrats in the Department of Justice willing to work with the parties, or will we just go through our normal amendment process? In other words, I've noted throughout the summer that in your speeches you have dropped mention of those sections that deal mainly with property. You've been talking about the serious injury parts and the serious crimes, and I think we can come to an agreement on those areas.
There are other things I want to discuss with you, but I will let you give your views and tell us whether the government is going to be amending its own bill.
First of all, I would prefer that you work with members of the committee rather than bureaucrats. You are the elected members, and I hope, after hearing the evidence, you can determine what you think is in the best interest of the Canadian people. I can tell you that my department is more than willing to work with you.
But I want to point out that there are many property offences that pose a great deal of concern to Canadians. For example, some of the attorneys general are concerned about auto thefts, about the skyrocketing auto thefts. In the city of Winnipeg alone there'd be 9,000 auto thefts in one year, often committed by the same individuals over and over again, with people still getting conditional offences. In terms of other property offences, the Vancouver police related to me that an individual convicted of 124 offences was still receiving conditional sentences.
So the issue of property offence is not something that we should simply dismiss, and say that they're not serious. In fact, the evidence is very clear that violent crimes often begin with property offences. One concern I have is about breaking and entering. What is the difference between a break and enter into a residence and a home invasion? The problem is that you'll see a person in that home invasion. So a break and enter has the potential of being a very serious offence.
I'm trying to meet all of your points here; they're good points, and I appreciate your willingness to work on this bill, because we do need your support in a minority government.
You mentioned the issue of appeal. I was just looking through a newspaper and saw that, for example, the Manitoba Court of Appeal routinely hands out conditional sentences for drug offenders. I'm talking about production of and trafficking in drugs. Quite frankly, I don't see that as appropriate, and yet the courts of appeal in this country are the last resort. There is no further appeal in matters to the Supreme Court other than on a matter of law. It is very rarely granted that a sentence of appeal could ever go to the Supreme Court. So we have inconsistencies right across the country in terms of what is an appropriate sentencing for trafficking.
With regard to your point on the costing, first of all, this costing will be discussed at the attorneys general and Minister of Justice meeting in October. I have been holding individual conversations with provincial attorneys general, who, I might add, are generally supportive of the reforms as set out in this bill. Provincial and territorial officials are developing a paper outlining their views on the cumulative impact on not only Bill C-9 but also Bill C-10, and mandatory minimum sentences for serious drug offences. This paper has not yet been finalized, but it will be discussed at that ministerial meeting.
The increase in operational correctional costs will depend on the proportion of ineligible offenders who will receive a jail sentence and the average length of those sentences. Our estimates indicate that there could be additional jail sentences amounting to 443 prison years, which equates to an annual national expenditure for these sentences of approximately $21.7 million. This represents 1.7% of the present annual operational expenditure by jurisdictions on adult corrections. I look forward to seeing the provincial estimates on that.
Minister, when Bill C-9 was tabled in the House of Commons, I had the opportunity to tell you that I was against the bill. Today, I will quote three figures, and I would invite your departmental officials to reflect on them before they go any further.
Fifty-five thousand people have avoided detention since 1996, the year when conditional sentences were established. I'll have a question on that later on. Based on 2002-2003 figures, the average annual cost of incarcerating a person in a provincial jail in Canada is $51,454, whereas it costs $1,792 to monitor an offender in the community. I think, Minister, that these three figures should give you pause, but I will go further.
I am speaking with all due respect for you and your knowledgeable background, Minister, because I know that you were the Attorney General of Manitoba when this case was heard before the Supreme Court and a decision was rendered. I am referring of course to the Proulx decision handed down in 2000, referred to in the Supreme Court decision 1 S.C.R. 61. So, if there are any more significant or more recent decisions to counter the Proulx decision, I would like your department to provide me with a copy of them.
The Supreme Court — and this hasn't been reconsidered since — established 12 principles for the imposition of a conditional sentence. The first is the following:
|Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives.
As a defence counsel, I practised criminal law for 25 years. I was there when the conditional sentence system was first introduced and I appeared before various instances right up to the Court of Appeal on this matter. I can tell you — and you seem to have forgotten this — that when conditional sentences fail, that automatically leads to imprisonment until the sentence has been served, or to a review and stricter conditions.
I have two very specific questions to put to you. First, does the Department of Justice have statistics on successful conditional sentence cases? You cannot possibly not have those. We would like to have some information on these successes, that is, cases that did not result in a failure, in other words cases where a conditional sentence was imposed, the sentencing took place, and the offender completed the entire term of the conditional sentence. I would like to have these figures.
My final question has to do with your openness to possibly reviewing this bill. Have you considered conditional sentences for terms of up to five years less a day? On the one hand, that would serve as a counterweight to the ten years you are asking for. Moreover, we know that quite often people who receive five-years jail terms or less in penitentiaries get out faster than if they had been sent to a provincial prison where the sentences served are of two years or less. I could give you examples of this type of thing from here to Vancouver.
I hope you have understood my two questions.
My department can provide you with some of those statistics and some of those studies. Certainly the studies in Canada are not very clear on that. I think you're right to look for examples in other jurisdictions. That's something we will have to do. I don't think it's particularly clear from the evidence. For example, there are certain things I think we can say. I did note, for example, an individual stating recently in an interview following the very unfortunate incident in Montreal last week that she had noticed over the last 16 years that gun offences had gone down because of our laws. I also noted that would have been about the same time that mandatory minimum prison sentences for gun crimes were enhanced, which was well before the gun registry was brought in. The gun registry in effect only came into force in the last few years. It really has had no discernible impact in that respect.
I think if you look at the statistics on where we have gone and what has been effective in terms of dealing with gun crimes, there's a good solid argument to be made that mandatory prison sentences for those kinds of gun crimes have resulted in a reduction.
I was speaking to one of my staff who had spoken to prosecutors in the United States, and they talked about the benefits of mandatory minimum prison sentences in respect of certain types of offences. For example, the prosecutor he was talking to indicated that especially in the case of sexual predators the sentences are very effective, because in those cases, when you put one of those sexual predators behind bars, there's no one taking their place. So you will see an actual drop in crime by ensuring that individual is not out on the street. Again, this is anecdotal evidence.
We have studies. For example, I mentioned the study that showed that incarcerating a person for one year for a serious offence prevented the commission of 15 less serious offences that individual would have committed during that one year. We can argue about that, but I think generally speaking--and this is a point I want to make--it's not simply the elimination of conditional sentences, or mandatory minimum prison sentences. It's a combination of a number of issues that you have to bring together. It also involves alternatives to incarceration. Are there individuals we can deal with outside of the penal institutions? The Hollow Water situation may well be one of those examples. There are other examples.
I was involved as the provincial Minister of Justice, and I'm sorry to be always referring to that experience, but it is in a real way much more hands-on than being a federal Minister of Justice, in which case you're not actually involved in the day-to-day enforcement of the Criminal Code. In Manitoba the youth justice committees have been a tremendous success. I don't know how many are still running, but I know when I left that office we were running over 50 in Manitoba and they were tremendously successful, not just with youth, but also with adults, seniors, for example, who for the first time in their life were involved with the law. There was obviously something wrong in their lives. So we made provisions to allow those kinds of individuals to also benefit from the so-called youth justice committee. The theory was that we have a very young senior population in Manitoba. The point is that they were helpful in that respect.
So I think we have to look at it in terms of policing, law, and alternative programs, whether they're for youth or others.
The example I like to point out is New York, where the murder rate was brought down from a high of 2,200 a year to about 550 a year through effective enforcement and laws. That's still high, given the prevalence of guns in that society, but the point is that 1,700 more people were alive last year or the year before because of effective enforcement and tougher laws.
Thank you for being here, Mr. Minister.
No bad reflections on my friend Mr. Lee from across the way, but it seems to me that when you approach things in the nature that he does, once again you're concerned an awful lot about the criminal. I happen to be more concerned about the victims of crime. I think when we focus on them, we have a different view.
I would like your comments on a couple of things that I have to say. First, I believe one of the most common phrases used in our society today, when I'm out and about, is that it's not the fact that the conditional sentence is problematic; it's the fact that too many times there should jail time that just doesn't happen. That seems to be the problem in the eyes of a lot of people.
I know that for the 13 years I've been here, I've seen a lot of cases that finished in court where they were convicted and they did not receive jail time. I could probably go back over those years to see how many times not only I but several others questioned the sentencing of certain individuals that did not receive jail time, particularly in crimes against children.
I think you probably know me well enough now to realize that a major focus of mine over the years has been crimes against children. I really do not understand how a society such as we have in Canada can see child pornography grow to the industry it has become, to the magnitude it has. We just haven't looked after those kinds of things. It's problematic, creating more crimes against children. According to the samples you give, there's a lot more.
I think people are asking, what is going on? Grain farmers from my riding are in jail for selling their own grain, and the same week a perpetrator of a five-year-old in Calgary--serious crime--gets conditional sentencing? That's what's not making sense to a lot of people, because there are just too many examples of that.
I compliment you, sir, for coming forward with this bill, because I believe it's a great step in correcting that situation. I compliment you for that.
I'm just going to ask one question, and you can comment on anything that I may have said. I'm really concerned about sexual offences that are committed against children. It's very serious. I'm talking about little kids, not 17 and 18-year-olds; I'm talking about little kids. The people in this room know exactly what I mean, because we've seen too many examples of those crimes.
Will this bill prevent anyone who commits a serious crime against a child from getting house arrest?
That's fine. Thank you very much.
One of the things that Bill C-70 did in the last Parliament, when we tried to address this matter before Parliament fell, was not only to have the serious personal injury offences included, but also those areas such as terrorism offences and criminal organization offences, and then there was a special designation for those offences for which, on the basis of the nature and circumstance of the particular offence, the expression of denunciation was the uppermost consideration.
Now we know that section 718, the proportionality test that's in the code and our sentencing principle since the 1995-96 time period, sections 718 to 718.2 are still going to be here. One of the concerns this bill brings in a very real manner, Minister, is you talked about the police and the crown having discretion on how they're going to charge, and that brings up another issue of whether they'll be overcharging or undercharging to get around some of the lack of discretion that's going to be in the courtroom.
One of the people the discretion is really taken from is the sitting judge, the judge who hears the facts, the judge who knows the law and the range. My issue here is we have principles of sentencing set out in the Criminal Code that have not been altered, and you have a judge who is dictated to by our Parliament to impose a proportionate sentence when they feel--and it's a two-step process--that a conditional sentence is appropriate. Yet, in essence, if we went forward with this bill as is, there are going to be many situations where that sitting judge does not have the discretion any more.
The way that was dealt with in the prior piece of legislation was having a small out: there was a presumption against having the conditional sentence, but if a judge felt very strongly in that particular fact situation or those particular extenuating circumstances, whatever they would be--and these are circumstances that we have embedded in the Criminal Code itself, which they're supposed to listen to and are supposed to follow the case law that's been enunciated over time on these principles--it's going to be taken away.
Now, I think of things like.... And you downplayed that this is an appropriate vehicle, Minister, and said it's not that important. Treatment orders, for instance, Ms. Kane will tell you are an important part of conditional sentences for many situations in Canada right now, and it's very difficult in other sections to bring into effect.
Where do you, in your own mind, reconcile a sitting judge's discretion and the principle of proportionality and looking at the responsibility of the offender in the code?
That has nothing to do with whether it's victims or police or all of the partners in the justice system--and it is the taxpayer, too. So it is down specifically to the laws we have, because you have not altered those sections. Those sections are fundamental, and there is a way here that we are just.... I'm suggesting to you that maybe it is having the judge do those written reasons in exceptional circumstances, like a presumption against conditional sentences but in exceptional circumstances he or she would have the ability to sit there. We've all seen cases where it doesn't fit the norm.
I'd like your thoughts on that, Minister.