Thank you very much, Mr. Chair.
Good morning, ladies and gentlemen. It is a great pleasure to be here. Just as a point of clarification, I am delighted to be able to welcome you to the city of Toronto. You're still in the city of Toronto, although you're right on the edge of our border.
As has been indicated, and obviously by the way I'm dressed, I am the chief of the Toronto Police Service. It is my pleasure to come before you today to speak a little bit about our experience in Toronto as it pertains to gun violence.
As I am sure you are all aware, in the past year in particular, but actually over the past three or four years, we have experienced a significant increase in the level of gun violence in our city. That culminated in what was characterized by the media last year as the year of the gun. It was a year that saw an increase in the number of gun-related homicides in excess of 85% in Toronto, a significant increase in the number of shooting occurrences, and, equally significant, great concern among our citizens about public safety on our streets.
The violence that occurred last year is very much tied to the activities of gangs involved in a wide variety of criminal activities in our communities, most notably drug trafficking. Gangs have increasingly armed themselves with handguns over the past number of years and have been engaged in very public use of those handguns, endangering very many people in our city.
Last year we had a number of very high-profile events in the city, which I am sure you're aware of, but let me recount some of them for you. In July 2005 there was a gun battle engaged in one of our housing communities in which a four-year-old child was injured. The child was shot four times while playing in his backyard. We had another incident where a young man attended the funeral of a friend and was shot down on the steps of the church in which the funeral was taking place.
Perhaps the most widely publicized event, and the one that caused the greatest public concern in our city, was the Boxing Day shooting that occurred at Yonge and Gould last year at about 4:30 in the afternoon on a day when the people of Toronto frequently come down to that location and have historically attended there. Very few citizens in my city have not been down to Sam the Record Man, located at that corner, on Boxing Day.
A number of individuals, about 12 to be precise, were engaged in a dispute over drug territories, and guns came out. There was an exchange of gunfire on the street, and when the smoke had cleared, seven people had been shot, one of them a 15-year-old innocent child who was shopping with her mother. She lay dead on the roadway.
We have conducted a very exhaustive investigation and brought the people who we believe to be responsible for that crime to justice. They are currently before the courts. But the wounds that that event and others like it have inflicted upon our city and our communities remain. There is still a great concern about violence in our communities.
You may have read that this year in Toronto we have mounted an effective response to some of the gun violence we have experienced. I am very proud of the fact that we have undertaken a strategy known as the Toronto anti-violence intervention strategy, in which we have dedicated hundreds of new police resources to the fight against violence. We have been very active in identifying, apprehending, and prosecuting the most violent of offenders, to remove them from our streets and make the communities in which they were preying safer. We've put uniformed officers in those areas that were experiencing violence, and we have had some success in suppressing some of that violence. We have not eliminated it.
We've put a lot of people in jail. We've seized a great number of guns. We have worked very hard with our community partners in an attempt to restore a sense of safety and create opportunities and hope in those communities that had none, where people can now be safer and feel safer. As I indicated, we have had some success, but our success has been limited by the continued violence by a number of individuals.
Even as recently as this week, we had another event where gunmen took out guns and sprayed bullets on Yonge Street, only blocks south of where Jane Creba was killed last year. Hours later, on the 401, three young gunmen fired upon police officers who were attempting to apprehend them after they had robbed a business premises earlier in the evening. The individuals responsible for that are now in custody.
But we continue to see the use of guns in our community. I'm strongly of the opinion, having read the provisions proposed in Bill .... I've spoken to my people, and we're looking very hard at what is happening in our city, and not only in our city, but in cities right across Canada. As the chair of the Canadian Association of Chiefs of Police organized crime committee and of the Ontario Association of Chiefs of Police organized crime committee, I have had the opportunity to speak with my colleagues in every city and every jurisdiction in this country. What we are seeing, certainly across the province of Ontario, and what large urban centres across this country are experiencing, is an increase in gun violence, the availability of guns, and the willingness of criminals to use those guns to enforce their will upon communities to terrorize communities. And what we're seeing very often is even young people gaining access to guns, carrying guns, resolving disputes that used to be resolved with a punch in the nose but now are resulting in a spurt of gunfire, killing not only the protagonists involved, but innocent people in the vicinity. That remains a significant concern across this country. I am strongly of the opinion that in order to reduce this violence, we must accomplish many things. There is no simple answer to this. There is no one answer.
Certainly we have a responsibility to apprehend the most violent offenders and to take them off the street. In addition to taking them off the street, they have to know that there are real consequences for their criminal conduct. The only reason to carry a loaded handgun in my town is to kill people. So when an individual chooses to take up a gun in the city of Toronto, they are putting all their fellow citizens at risk. They have to know that there is a strong likelihood that they will be caught, and that's my job. But they also have to know that when caught, there are real, serious, and certain consequences for those actions. Quite frankly, the certainty of those consequences is not currently available in our system, and our criminals are not being deterred.
But I can also tell you, from experience, that this year we undertook a significant organized crime investigation in a neighbourhood known as Jamestown, not very far from where we are sitting now. It is a neighbourhood, a relatively small neighbourhood, that had 10 gun-related murders--murders committed with handguns--in 2005. We conducted a major investigation, and in May of this year we apprehended 106 members of the Jamestown Crew--gang members and organized crime members from that community. We kept most of the violent ones in custody. We managed to keep them in custody through the summer.
Last year there were 10 murders in that community; this year there have been none. Last year there were over 45 shootings in that community; this year there were only a handful. The difference in that community has been extraordinary. And it's because the individuals who were preying on that community and committing so much violence have been incapacitated in their ability to terrorize that neighbourhood. Because they are in custody, they haven't been out on those streets to kill people and kill each other. And that neighbourhood is experiencing a significant renaissance.
The other things we are attempting to do in that community--to make it safe, to create new opportunity, to create hope, to restore a community's confidence and its pride--can only take place when the bullets no longer fly around the neighbourhood. So by taking the most violent offenders off the street, and, most importantly, by keeping them off the street, we create an opportunity for the other positive things to happen so that our youth workers, our schools, our faith leaders, our community leaders, the business community, and all of us together can make a real difference in those communities. But it only works when the gunmen are gone.
I am available, sir, to speak to any issues you may have.
Thank you, Chair. I appreciate the opportunity to address the committee.
I'm sure the justice committee is very aware of the role the provincial Attorney General and his or her agents play in our criminal justice system. But just as confirmation, I guess, for those who torture themselves by reading Hansard for a committee, the provincial Attorney General is responsible for prosecuting the Criminal Code. So that's everything from shoplifting to murder.
As you know, federal crown attorneys are responsible for drug crimes, under the Narcotics Act, and other offences. But within the rubric of organized crime--in guns and gang crime--it is the provinces that are responsible for most of the prosecutions involving guns and gangs, unless there specifically end up being drug crime charges.
In the province of Ontario, unlike in the provinces of Quebec and British Columbia, for example, there is a distinction between who lays the charges and who prosecutes the charges. In B.C. and Quebec, the charges are laid by crown attorneys. Here in Ontario, charges are laid by the police, and then the provincial agents of the Attorney General decide whether to prosecute based on whether there is a reasonable prospect of conviction and if it's in the public interest.
In Ontario, there are 900 crown attorneys--900 prosecutors--who address 500,000 charges every year. As such, the Criminal Law Division in the Province of Ontario has a considerable amount of experience, and I will say that they have developed a considerable amount of expertise. They have had the opportunity to work with officials in the federal Department of Justice under different governments and are obviously more than happy to work with the Department of Justice under this government, and have done so.
There's a role for the province and the municipality and the federal government in the fight against gun crime. It is not solely the job of one level of government. I will quickly go through a few things the province is doing, and then if you'll permit me, Chair, I'll spend the bulk of my time talking about the bill—issues around amendments, issues around why have mandatory, and some examples--and then I'll happily take your questions.
The province's approach to guns and gangs--Ontario's approach, the McGuinty government's approach--is that we have to do everything. It is not simply a matter of crackdowns alone or prevention alone or deterrents alone or denunciation alone. It is the whole package. So for the first time in Ontario, we established a guns and gangs task force that involved both police and prosecutors working together, literally, in the same building and on the same floor.
A few months after I had the honour and opportunity of being sworn in, for the first time, a crown prosecutor, a crown attorney for the Province of Ontario, left his offices and moved into the offices of Chief Blair. The purpose of that, and the purpose of having prosecutors and police working together is this. As you heard from Chief Blair, there are thousands and thousands, sometimes over 100,000, wiretaps, often in many different languages. Usually most of the evidence involved in guns and gangs cases involves electronic surveillance. The disclosure requirements established by the Supreme Court of Canada and pursuant to our charter require timely disclosure. The search and seizure powers and the sophistication of some of the gangs, who understand very well what the laws are, has led to Ontario's approach to what we call organized justice.
We want to be one step ahead of organized crime, not just traditional organized crime, but organized crime in the form of the street gangs we see, literally franchised operations with recruitment practices and a level of sophistication with some of them--as Chief Blair said, not all of them, but a level of sophistication--that allows them to do their best, unfortunately, to try to organize themselves around both the federal-provincial division of responsibilities and also around the Criminal Code and the justice system itself. Thus, we have organized justice. We have a crown attorney working with our police officers from day one of an investigation right through to the end. That assists in terms of timely disclosure. That assists in terms of ensuring all aspects of the investigation, and ultimately the evidence will be usable and positive before the courts, etc.
It's expanded. We now have more than 60 prosecutors in the guns and gangs task force. We've established an operations centre that will be operational in January that puts everybody in the same room, all levels, RCMP, provincial policing and municipal policing, as well as enforcement. There's room for federal prosecutors. Obviously, there will be Ontario crown attorneys and the technology and the wiretapping experts. There's no substitute for being able to walk down the hall and talk to your colleagues, instead of having them across town or in some cases across the province.
Third, we entered into an agreement with other provinces, Quebec and Manitoba--Ontario did so simply because of geographic proximity--to have the provinces collaborate on guns and gangs operations. Obviously, these are international and national efforts for some organized crime. The prosecution effort involves work from literally 10 or more police forces, different municipal police forces, several provinces, sometimes several countries. We have collaboration between provinces now. It has existed over the years, but it has never been formal or formalized. There has never been a real push to collaborate to get one step ahead of organized crime and, for example, to share expert evidence. So if an expert is being used in one province for a gun crime, and we know that person is there and is in Manitoba and we know how that went, we may be able to use that expert in the province of Ontario. There's no reason why that can't expand across the country.
Our government fast-tracked an additional 1,000 police officers, and we also established major crimes courts, courts geared toward these relatively new prosecutions that involve dozens and dozens and sometimes over 100 accused. That involves particular security requirements. As you can imagine, that means we have to keep the witnesses apart from the accused. We have to protect victims' rights, thus the special victims unit within the operations centre. As I said, electronic surveillance dominates these trials, and therefore we have to have courts that can accommodate that, thus the establishment of these major crimes courts.
Next, again, I said we have to do everything. We use our provincial legislation, civil legislation, to seize and in some cases forfeit property that's used for unlawful activities. Yesterday we announced the seizure of a crack house in Hamilton, not the first, but the second crack house we've seized in Hamilton using the provincial civil legislation.
Last is prevention. We have to do it all. So the premier established a challenge fund, an up to $45 million challenge fund to prevent, to reach out to communities, to provide opportunities to communities, so people don't have to choose between a gang and doing nothing, but rather have community activities they can turn to.
Enough of telling you what I do for a living; let me get into your bill. Thanks for your indulgence.
Ontario supports Bill . Ontario, at least since the McGuinty government has been in office, has been calling for increased mandatory minimum sentences. I have written to the previous justice minister and the current justice minister, attended federal-provincial-territorial justice ministers meetings, and attempted to forge a consensus among justice ministers. We achieved that in Whitehorse, which I'll speak about in just a moment.
We support mandatory minimum sentences.
I am encouraged by the federal government's commitment to move the justice system forward.
We view mandatory minimum sentences as part of a larger package, as I've just discussed in terms of what the province's role is. This is not the only change that Parliament ought to address and of course is addressing.
I don't know what time it is, but I think it may be at this very second that the Prime Minister, the premier, and the mayor are making an announcement on bail reform.
As I say, under the McGuinty government, Ontario has been pursuing the fight for zero tolerance on gun crimes. We are very committed to doing that, to doing all we can to fight gun violence.
In November 2005, at the federal-provincial-territorial justice ministers meeting in Whitehorse, Ontario, we worked with the other justice ministers and with the federal minister to establish a national consensus, which was achieved at that time, that sentences for gun-related offences should carry increased mandatory minimums.
At that meeting, Ontario proposed, among other things, two new offences, which we are pleased form part of the proposed bill that we're here to discuss. The creation of the charges of breaking and entering to steal a firearm and robbery to steal a firearm would, if passed, officially recognize two crimes that unfortunately have become all too common in this world of gun and gang culture.
I said I support the bill. I also understand that committees have work to do, and one of the things committees consider is the specifics in the amendments. So I'd like to speak to that for just a moment.
Ontario is concerned about the application of mandatory minimum sentences, about how they are used. It has been upheld by the Supreme Court of Canada that minimum sentences have an inflationary effect, as Madam Justice Arbour upheld in Morrisey. Namely, I would argue that minimum sentences are the floor, they're not the ceiling, but the bill, prima facie, does not reflect that right now. So I would submit that a statement of principle to the effect that mandatory minimum jail sentences are minimums and not maximums would be helpful in ensuring that the courts do not use a mandatory minimum as the tariff, because if it's used as a tariff, then it will not be a minimum; it will be used as a maximum.
A statement of principle to that effect would be helpful in clarifying that for the courts, and obviously if the Department of Justice or this committee wishes Ontario officials to provide some more specific language around that, we would be happy to assist on that front.
The bill ought to address, in my submission, a number of sentencing issues.
First, the bill could better toughen the prohibition period for possession of firearms and ammunition.
Secondly, we would recommend that the bill provide sentencing judges with the power to increase the period of parole ineligibility for any sentence involving a firearm-related offence.
Thirdly, we would recommend that the bill deal with section 92 of the Criminal Code, the possession of a firearm--knowing its possession is unauthorized--to provide for a mandatory minimum jail sentence for a first offence.
Fourthly, we would recommend that the bill provide a mandatory minimum jail sentence under section 94 for those found guilty of illegally possessing a firearm while in a car.
On those two offences, and I understand that they are not entirely without controversy, the idea is this. If you get into a car and you have a firearm, you need to know that if you get pulled over, you're going to go to jail. I can only imagine the danger posed to police officers pulling over somebody who has a firearm in that car. Not having a mandatory minimum sentence, I would argue, does not (a) send the right message and (b) does not denounce that offence to the extent that it ought to be denounced.
The same argument, I would argue, should be applied to the possession of a firearm, knowing that its possession is unauthorized, to provide for a mandatory minimum jail sentence for a first offence. Again, it's if you are in public and you have a firearm and you know it is unauthorized. We are not talking about the hunter here. We're talking about the person in public with a firearm knowing it's an unauthorized firearm. You need to know, when you decide to walk out of your house or apartment, or wherever you were where you got that gun, that if you get caught, you're going to go to a jail.
I think that's entirely consistent with the principles and the spirit behind this bill. It would be a significant denunciation of those gang members who have weapons on them and who know that they are unauthorized.
I also want to speak to the issue of resources, to reiterate what has been said at the federal-provincial-territorial justice ministers meeting. As you know, we already have increased the number of prosecutors in the province of Ontario, entirely funded by the treasury in the province. We have also appointed more justices to the Ontario Court of Justice than in any other three-year period in the history of the province. There have been more than 60 additions to the Ontario Court of Justice in the last three years--60, six zero. We've done that to enhance the ability of the criminal justice system. We've added 1,000 new police officers as well and have established the provincial operations centre. These are part of a $51 million expansion of the criminal justice system announced last January by the premier, Chief Blair, and the commissioner for the OPP. It is the single largest expansion, in one fell swoop, of the criminal justice system the province has ever seen. So I would submit that we're doing our part in the province of Ontario.
Obviously, accused persons, under this bill, will be facing increased penalties. That's going to have an impact on the justice system; it always has. In the past, the federal government has assisted the provinces in funding federal legislative initiatives, especially when the bill carried the type of anticipated pressure that this one carries. The submission was made by all the provincial and territorial justice ministers to the federal justice ministers at the last federal-provincial-territorial meeting last autumn in Newfoundland. I would argue the precedent of the federal government assisting the provinces with federal legislative initiatives that has applied in the past should apply in this case.
Let me get into mandatory minimum sentences and why. In my respectful submission, the debate over mandatory minimum sentences is a false debate. We have mandatory minimum sentences in Canada. We already have them. And we already have them for gun crimes. The question is, which offences? And where there are mandatory minimum sentences already, what should the increases be?
The purpose is to incapacitate persons who have been convicted of gun crimes, persons who have proven themselves to be dangerous. They have the most dangerous weapon imaginable to the public--a firearm, a gun--and they ought to be incapacitated.
Denunciation is, obviously, another purpose.
Deterrence has been spoken to already by the chief, and I would echo his remarks. Deterrence applies to some; it doesn't apply to others. If deterrence was the sole purpose of the mandatory minimum for murder, you could make the argument that some people are not going to be deterred by the sentence. Of course, it applies to some but not to others. The reason we have the sentence we do for murder is, in part, because of denunciation by Parliament. So it should apply with respect to gun crimes.
I want to give a few examples of—
Welcome to the committee.
I recall that in November of last year the former Minister of Justice came to Toronto. I think you were at that announcement, and you were very supportive of the bill at that time.
Just for those who were not present, breaking and entering with an intent to steal a firearm and robbery with intent to steal a firearm were part of that piece of legislation. Our government certainly was in favour of those bills.
Also, as you said, Minister, there are already 42 mandatory minimums in the Criminal Code, give or take one or two.
I was part of putting some of the evidence surrounding guns. I was part of getting that in during my term in Parliament.
Our police chief, just before he ended his comments, said it was the public's perception of safety. That is where the discussion comes in. The public wants to feel safe. You're talking about 500,000 charges every year in Ontario. If you multiply that by the rest of the country....
What do people read about? They read about the extreme acts of violence in the papers. That skewers their perception of the magnitude of the problem. We know there is a divergence with our criminal justice statistics.
I do want to correct something. The current Minister of Justice, when he was at committee the other day, talked about the Liberals wanting to double the mandatory minimums and misapplied that by saying from four to eight years. What we had in our bill were various other charges, where we were doubling the minimum one year to two years. I don't want that misperception to continue.
There are some mandatory minimums that, with a carefully drafted bill, I think the Liberals would be able to support. The way this thing is drafted has some real problems.
You were present, and you heard about the discrepancy between the long arm and the short gun. Those are ideological differences. There is no evidence to really back those up. We've not been presented with any evidence by the minister, or any documentation. What we're trying to do here is an evidence-based analogy. We are also constrained, quite rightly, by section 718 of the sentencing principles of the Criminal Code. There are six sentencing principles in the code, not just the two that seem to be mentioned all the time.
For the record, we had $50 million for the gun violence and gang prevention funds. It was community-based. There was $1 million just in Toronto, just to top up these violence initiatives. Those were the holistic things we heard the chief talk about and be supportive of. We also know that you were involved in that as part of the government of the day.
I'm going to get to the area that concerns me and that directly affects you. In the prisons, it will be the feds paying for the incarceration, but it does affect you as a provincial Attorney General, as the administrator of the courts of justice. The two areas are really of concern. They have been raised, and are continuing to be raised, even later today.
One is the legal aid problem you're facing. You are already in a $10 million deficit here. When the people come to our committee and talk about this, we hear that only people who are facing incarceration are eligible. Yesterday, I read, as I'm sure others did, about the per person capping in Ontario.
I'll tie that up, Minister, and then leave the rest of the time for the Askov situation. Mandatory minimums at the level we see in these bills are going to have an effect that will start at count one. You will not just see it at the third time, when somebody is facing some really...but all the way through. We're being told that you will have more trials. You have Askov problems already.
It's not just “you”; I'm talking about the administration of justice, not you personally.
I need you to address those, and I want to give you this opportunity to do that. I'd also like you to address the similar problem that you have on the gun registry.
Thank you very much. Thank you.
I'm not sure who decided to invite me here, but I know it was not because of anything I did in mathematics. I am also a practising lawyer with Roach, Schwartz and Associates in Toronto, and I'm also an adjunct professor of law at the University of Toronto Faculty of Law. So I do have a more direct interest in these matters than the other title might suggest.
I should like to make some general points you might find useful in considering this bill. One point I should like to start with is that, in general, criminal law should be certain, if possible, and shouldn't be changed very often unless there's good reason to change. But there should be a really good reason, if you're going to change the criminal law, and I don't see the reasons that have motivated this bill as being good.
One of you was asking Attorney General Bryant about the evidence to support the need for this bill, and I would hope you would all continue to ask that question very loudly, because what is the reason for this bill? Well, the bill itself has some “whereases”--and hopefully those would speak to the matter--and the “whereases” indicate that Canadians are entitled to live their lives in peace, freedom, and security. Nobody is going to argue with that.
They also indicate that gun crime is on an increase. That should be a matter of some evidence. That should be looked at. Maybe it's true, but it should be looked at. Different kinds of crimes do rise and fall from time to time.
Then the bill indicates that we want to promote the values of the Charter of Rights and Freedoms. That's nice, but then it says:
||AND WHEREAS these measures include legislation to impose higher minimum penalties on those who commit serious or repeat offences involving firearms;
There seems to me to be a disconnect. You need a couple of other “whereases” if you want to justify that conclusion, such as “Whereas there's been a problem in sentencing with respect to firearms offences....” Is there any evidence of that? Don't judges regard firearms offences as very serious already? Is there any evidence that suggests they don't impose serious enough penalties for that?
And then you would expect some evidence that more serious penalties tend to deter crime, and we know that most of the studies by criminologists are in the opposite direction. People don't think about the penalty as they're committing a crime. They think about the possibility of being caught, and the possibility of being caught does deter crime, but they don't think if it's only six months now, they'll do it, but if you pass this and it's amended to one year, they won't do it. Nobody thinks like that when they're committing crimes, and the studies show that.
So what is happening here? When this bill was introduced in May, the Minister of Justice talked about tackling crime and restoring confidence in the justice system and so on. It seems there are some political issues here, and many people believe it's popular to promote the idea of harsher penalties and so on. There is some question about that. That's even been studied. There's a study that suggests maybe it's not as popular as some of you may think. It seems that politicians in all parties seem to think that.
So I would ask you to look at the reasons here, and look at some evidence, before you change things. There is a problem with mandatory minimum sentences because they do interfere with the discretion to be proportionate. How much they interfere depends on how high the minimum is and the nature of it and so on. But with any mandatory minimum sentence, as the Latimer case showed us all, for example, even with respect to murder, there are possible problems in particular cases. As to how serious, it depends upon the circumstances. But you shouldn't just do it without some good reason to do it. As everyone is aware, we have a Charter of Rights and Freedoms, and that limits the ability of Parliament to impose punishment. It has to be consistent with the charter. Section 12 of the charter prohibits cruel and unusual punishment, and, as you all know, it has been considered with respect to minimum sentences, and sometimes it has been held to be cruel and unusual and sometimes not.
But what the Supreme Court says is...of course, the Supreme Court defers to Parliament, to some large extent. So the only way they will interfere with a law like this, strike it down, is if they hold that it's grossly disproportionate. That's what the cases say, Morrisey and Latimer and so on. If the sentence is grossly disproportionate, then it is cruel and unusual punishment and it should be struck down. Do you want sentences that are just disproportionate, not grossly disproportionate? Why do you want disproportionate sentences? That's what you are introducing if you have minimums. You will, in some cases, at least, be introducing disproportionate sentences. If they're found to be grossly disproportionate, they will be struck down. Who knows how these provisions you have in will fare in the courts. Nobody, I don't think, can give you any assurance as to what's going to happen. How they fare will depend on particular cases, on the particular facts of those cases, and so on.
One thing you can be sure of is that there's going to be an awful lot of charter litigation about this. There will be an awful lot of it. There will be a lot of time, energy, and money spent.
You know, it is easy to design a hypothetical case where this would be grossly disproportionate. A little while ago you were talking about cottage break-ins. Some kid of otherwise good character, a 19-year-old young man, breaks into a cottage, urged by his friends. They grab a bag and run away, and in the bag is a shotgun. Will that kid have a mandatory minimum sentence of one year? That's going to be grossly disproportionate if it's as good a kid as the one I'm thinking of. Then that kid will, if he has the funds to do it, fight it, and there will be charter cases and so on. But why do it? Why enact it in the first place? Shouldn't a judge in that case be able to say to the kid, “You're going to be given a conditional sentence”? Why not? Do you want to put that kid in jail for a year, really? Do you really want to do that?
As I said, there are a number of studies that show that the severity of punishment doesn't deter crime. We have a distinguished criminologist at the University of Toronto named Anthony Doob, for example. I'm sure that those of you who care about these things know his name. He had such a study in the year 2003, consistent with many other studies.
If you want to deal with the causes of crime, deal with them. And there are things to deal with. There are situations in which many 19- or 20-year-old kids in Toronto, for example, see it as a better future for themselves to join a gang and sell drugs than to try to get a decent job, because they don't see the prospects of decent jobs and they see the prospect of that gang right around the corner.
There could be larger studies about these issues that might really result in reduced crime. In particular, the whole question of drugs is something that should be looked at. I would urge you.... It's not part of this bill, but it is part of this bill in a way, because a large number of firearms offences are in connection with drugs. We all know that in movies in the thirties gangsters were shooting it out with respect to the prohibition of liquor. A lot of the shootouts in Toronto are with respect to gangs fighting over turf for drugs, for selling drugs. I would suggest that if you really want to cut down on some of this crime, look in other directions.
This legislation is going to lead to enormous costs. There's this hearing and its cost. There will be a huge amount of charter litigation emanating from this over the years. There's going to be a problem with guilty pleas. No lawyer is going to plead someone guilty to a charge like this if he's facing a minimum of three years, a minimum of five years. There will be many more trials and many fewer guilty pleas.
Then there's a particular peculiarity about the way the bill is structured that's going to lead to a real mess, too. For consecutive offences, as you know, you get higher penalties in various ways here, right? But “consecutive” is defined in terms of when you're convicted. It's not in terms of when you committed the offence. So if somebody committed two different offences like this, they'll be jockeying as to which one should be tried first, because some of them have more serious penalties as a second offence than others. That's even discussed in the legislative backgrounder here. They give an example.
You should think about it. Do you really want to put that mess into the Criminal Code?
This means, for example, that if an individual illegally imported a firearm and subsequently committed breaking and entering to steal a firearm but was convicted on the break and enter charge first, the second offence would be importation. As a result, the individual would receive a minimum sentence of five years, whereas if he was convicted of the other one first, it would be a minimum sentence of three years. Suppose he commits these offences within a couple of weeks of each other—that happens in real life from time to time—it's creating a real mess with that whole definition. That's just one of a number of issues that are going to play themselves out day to day in the courts if this bill is enacted as it is.
I really think you should go back to the drawing board and have some serious study about all these issues. There's no immediate urgency. You don't have to pass it this week. The only reason to pass it this week, or next week, or this year is for political reasons. If you want to look at this in a serious way, you need some serious study of the consequences of minimum sentences and other possibilities for reducing the use of firearms.
Those would be my submissions to you. They are quite different from any of the positions of any of the political parties, but I hope you all would consider them to whatever extent it may be useful.
The Supreme Court of Canada ruled in favour of the current mandatory minimum of four years for a conviction involving a firearm and commented specifically on the wanton and reckless disregard displayed as a result of the use of a firearm by the offender.
In addition, it is important to note that for those offences where the mandatory minimum sentences increased on the second, third, and subsequent offences, in terms of this bill it is only in relation to the specific offences included in the proposed legislation. So this government bill does not include any other crimes. It is about a continuation of the unlawful possession and use of firearms. In other words, it is about those offenders, particularly repeat offenders, who make the choice to possess, acquire, and use firearms illegally.
If indeed our culture here in Canada is about the proper licensing, storage, and possession of firearms, surely the same strict standards should be brought to bear on those who choose to brandish firearms for a criminal purpose. If you want to safeguard Canadians, we would suggest that you can't have one without the other.
Although we suspect that commentators on the other side of this debate feel otherwise, we would go so far as to say that, if crafted appropriately—and we think this bill is—mandatory minimum sentences of imprisonment are generally consistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Sections 718 and 718.1 of the Criminal Code—you talked about them earlier—set out the principles of sentencing that must be followed by the court. The court is allowed significant latitude when deciding how to balance what are often very disparate principles. Although many judges know intuitively what the balance is, over the years Parliament, from time to time, has weighed in with a variety of sentencing, parole, and post-sentence order amendments in response to concerns expressed by the community about public safety and justice in particular.
It is entirely appropriate for Parliament to provide specific statutory direction ultimately to the court. Most recently, it has done so with respect to mandatory minimum sentences for certain offences committed against children, in Bill , and previously for certain serious firearm offences. The community expresses its revulsion to certain kinds of crimes, usually violent ones, and if parliamentarians are listening, they respond in an appropriate way. We think this enhancement of the current mandatory minimum sentence provisions is precisely that.
What about the impact of mandatory minimum sentences on crime? As the legislative summary from the Library of Parliament that was made available makes clear, the studies to date have mixed results in terms of the impact of mandatory minimum sentences and increased rates of incarceration and the deterrent effect and impact on recidivism rates. Lies, damn lies, and statistics, as they say.
Rather than focus on whether these proposed amendments have a deterrent effect or not—and I would echo Chief Blair and Attorney General Bryant's comments on the deterrent impact—it is our position that targeting the most violent repeat offenders, and that's what people are who use firearms or possess firearms for an unlawful purpose, and locking them up for sustained periods of time will have a direct effect on the crime rate. It is an undeniable reality that a disproportionately small number of offenders are responsible for a disproportionately large number of offences. This axiom applies to repeat offenders who use firearms in the commission of their crimes.
Although they didn't get it entirely correct south of the border—California's “three strikes and you're out” law for felonies, including pizza theft, comes to mind—a precipitous drop greater than the drop in Canada over the same time period in the violent crime rate south of the 49th parallel went hand in hand with a crackdown on violent crime. A variety of studies done by American criminologists, including Marvell and Moody, and Kovandzic, confirm a reduction in homicides and violent crime rates.
It's about incapacitation. How many robberies with a firearm can you do when you are behind bars? If the right offenders are targeted, which we believe this bill does, it works.
Is violent crime on the rise in Canada? When it comes to statistics about the rates of crime, there's no denying that a whole lot of cherry-picking goes on, and it happens on both sides. Even the criminologists, lawyers, law professors, and other academics who are quick to remind you about sticking to the facts and getting it right are sometimes guilty of relying on short-term or year-to-year increases or decreases to make their cases. This is both misleading and inappropriate; some would call it downright dishonest.
I believe the committee clerk has given you a page from Juristat. In the middle column, check the violent crime rate. As you all know, it's calculated on the basis of 100,000 population. Dating back to 1962, it shows an increase from 221 per 100,000 in 1962, to 1,084 in 1992, levelling off since then to slightly under 1,000 for the past nine years. I would suggest to you that this is an extraordinary increase by any measure, and the levelling off that has taken place over the last dozen years still has us light years away from those good old days in the sixties.
Although the CCA did not have access to corresponding long-term tables for firearm offences, we are confident that they would mirror or exceed the general violent crime rate. We encourage the committee to obtain the same long-term table from the justice ministry for firearm-related offences. In addition, violent crime as a proportion of the overall crime rate is up over that same time period.
On gun play in Toronto over the past 30 years--I know Chief Blair spoke about much of this--my experience is anecdotal, but I want to share it with you. We suspect the same things that occur in Toronto are occurring in other urban jurisdictions across the country. I had a very unique perspective as a law enforcement officer on the Toronto Police Service, starting in 1976 until I retired this year. In those early years it was exceedingly rare, even in the busiest downtown divisions, that offenders arrested were in possession of illegal handguns or semi-automatic weapons. Even the most organized narcotics and drug traffickers did not carry or possess these kinds of firearms. I know because I worked in the drug squad, made hundreds of buys, and kicked in hundreds of doors from 1982 to 1986. We rarely seized a handgun. Uniformed, plain-clothes, and undercover officers rarely confronted these kinds of weapons.
That changed in the late eighties and coincided with the crack trade--free-based cocaine--and continued into the early 1990s and onwards with the proliferation of American-style street gangs, usually arranged along ethnic lines, that now commit crimes in support of territory and profit. The results are in full view in our housing projects and on our crowded downtown streets. There are drive-by shootings and shots fired because of perceived disrespect--something that, as Chief Blair indicated, was usually handled in the past with a punch in the nose. There are brutal and often random home invasions. No self-respecting crack dealer will leave home without his trusty Glock pistol or 9 mm handgun, and whole communities are marginalized and living in fear.
We have a new vocabulary of violent and brutal crime, and the violent crime statistic that I provided from Juristat reflects that reality. It's not Andy of Mayberry and it's not Leave it to Beaver any more.
What about the amendments? I think this is the important work the committee is doing.
Our review of the amendments suggests the following conditions and principles are in play that ensure that these amendments are constitutionally viable. The ability to proceed summarily continues to exist for those offences where this option was already in place. The escalation of the minimum sentence occurs only where the offender has previous convictions for just these firearm-related crimes. We believe the sentence escalation is proportional and appropriate. Where an offender has not committed one of the listed offences for a period of 10 years, the escalating structure of sentencing for repeat offences is no longer applicable. Finally, the same incredibly generous parole laws, including automatic statutory release at the completion of two-thirds of a sentence--except for the tiniest minority of dangerous inmates--is still in place.
Our suggestions for specific changes to the proposed amendments are as follows. As the legislative summary points out, it is unclear why manslaughter and criminal negligence causing death are not treated the same way as the other eight most serious firearm offences. As the summary indicates, this is “particularly so, given that previous convictions for these two offences count for sentencing on the remaining eight”. It's our recommendation that those two offences are included in that most serious list for the up to 10 years.
In addition, building on what Ms. Barnes said, we are also unclear why a regular firearm has not been included along with the restricted or prohibited weapon in terms of the five-year sentence. We suggest you amend that same section and just include the regular firearm with restricted and prohibited, making them all five years along with the organized crime one. Just fix it there; it's already at four, so make it five.
Moving to the two new offences, the creation of new offences where other appropriate offences already exist is something that I often view with skepticism. Much like the practice of increasing maximum sentences, they often are measures designed to give the impression of getting tough on crime. More often than not, nothing could be further from the truth.
In the case of these two new offences, like Chief Blair and Mr. Bryant, we support them. We know the end result of these thefts, these break and enters, and these robberies. In light of the fact that they include escalating mandatory minimum sentences, we think those are appropriate additions. For that reason we support their inclusion.
The best way to put all of these in perspective is to take one of these proposed sections and illustrate how it might work in the real world. An offender shoots somebody with a handgun and is convicted of attempted murder because he almost kills him. The minimum mandatory sentence is five years, which he receives. He gets out of jail and commits the same offence again, or one of the other nine most serious of crimes, again committed with a firearm. So he almost kills somebody again. This time the minimum is seven years. He gets out of jail and does the same thing. Remember, it still has to be the same crime or one of the other nine most serious crimes. This time the minimum is 10 years.
Against the backdrop of our excessively generous parole laws and these kinds of offenders, who almost certainly have lengthy criminal records with other convictions, are these sentences really out of whack in terms of the gravity of the offence? We ask you to reflect on that.
Finally, we are encouraged by the comments of the member for Winnipeg Centre, Mr. Patrick Martin, who has seen his community ravaged by gun crime and who recognizes that this public safety legislation will help tackle this growing problem.
In addition, we are heartened by the public policy statements of at least two of the three opposition parties calling for enhanced mandatory minimum sentences in the lead-up to the last election. We trust that those views have not changed since then.
We encourage you to consider the two minor amendments we have recommended with respect to the most serious section. With or without these two amendments, the CCAA supports speedy passage of this legislation, and we look forward to all-party support to get this bill through the House of Commons and the Senate.
I'm going to speak in French.
I was glad to hear from professor Rosenthal, who I did not know previously. Your testimony has brought two things to mind. The first is that the Supreme Court allowed mandatory minimum sentences across the board, except in the Smith decision. The Canadian Charter of Rights and Freedoms came into effect in 1982, the decision in Smith was handed down in 1987 at which point, in order for a sentence to be overturned under section 12 of the Charter of Rights and Freedoms, two criteria must be met. First, the sentence must violate the principle of human dignity, and second, it must be grossly disproportionate. When defining a grossly disproportionate sentence the following factors are taken into consideration: the effect of the sentence, the offender's character and the circumstances in which the crime was committed.
Court challenges are not really what scares me. I don't think the sentences will be overturned because in Morrissey, Gold, Latimer and many other decisions, the court has very much deferred to parliamentarians. The problem is that I do not believe mandatory minimum sentences are effective. The government has not managed to table a single study proving a link between deterrents and a repeat offence.
Let's think about this logically. In 1995, a bill was adopted. The legislation set out 10 mandatory minimum sentences for offences committed with a firearm. Since then, either offences committed with firearms have increased, or they have decreased. Which ever the case may be, this has something to do with the legislation enacted in 1995. The Canadian Centre for Justice Statistics told us yesterday that, generally speaking, the number of crimes committed with a firearm has not increased in Canada. Moreover, this assertion is back up by the statistics.
If you look at the statistics on violent crimes, it is clear that, both absolutely and relatively speaking, they have dropped in number, with the exception of two places in Canada, where the number of crimes with a firearm has increased: Toronto and Vancouver. Should this be of concern? Yes, it should, and that is why, earlier, I tried to find out from the chief of police and the solicitor general what they think can be done to address very specific situations. It would be fabulous if we could tell ourselves, as legislators, that a quick fix solution exists, namely an increase in mandatory minimum sentences. But that is not the solution. At any rate, it is not clear, on the basis of the scientific data, that that is the solution.
What we do need to look at, is how we intend to work, for example, in dealing with street gangs. Clearly, the whole street gang phenomenon is a matter for concern. It is also a matter of concern in Montreal. But why do young people join street gangs? It may have something to do with poverty, desperation, and also the fact that some young people are quite simply a lost cause. Nor are we naive.
I would like to hear what you have to say on this issue. Mr. Rosenthal,I would be very happy for you to react, but I think this is particularly an issue for John. Do you have any statistics which would suggest that mandatory minimum sentencing is a deterrent? Any answer must be based on somewhat empirical research; and must not be based on an impression or one's intuition. You can't pass legislation that way, otherwise we would be reinstating the death penalty. The death penalty is the best way to eradicate offenders. So, when you say mandatory minimum sentencing is the best way of controlling offenders, it is a spurious argument.
I thank you both for being here today.
Mr. Muise, there is occasionally some reference in terms of the victims from some of the witnesses who come forward. I hear so many witnesses come before the committee...you'd swear that when it comes to crime, there's only one person involved and that's the criminal. I really get sick and tired of this nonsense about, “Well, we have to make sure there's not cruel and unusual punishment when it comes to the criminal. We have to be careful how we treat these birds because that could be, under the Charter of Rights and Freedoms, cruel and unusual.”
Yet, Mr. Muise, I remember an 18-year-old boy who was in grade 12 attacking a 15-year-old girl in the school I was in. He sexually assaulted her--seriously. The courts, in their wisdom, decided it would be better if this 18-year-old continued his schooling and got his education, and they gave him a conditional sentence. I think it was extremely cruel and unusual punishment for that 15-year-old girl to allow that 18-year-old boy back into that school.
An apple dumpling gang, as we called them in the rural area, robbed the Bank of Montreal. A 17-year-old and two 19-year-olds decided it would be a good idea to get their hands on some guns. They got some handguns somewhere. In my hometown of 2,500 people, they held up the Bank of Montreal. It was very well planned, by the way. They had two girlfriends who set a big fire on the edges of town to get our small police force to attend to this, along with the fire department.
There were four tellers and a couple of people who dealt with credit and so on--six to seven people, including the manager--who were absolutely terrorized for at least 15 minutes before these young people, who were shaking like a leaf because it was the first time they had ever done such a thing, managed to get out of there with quite a bit of money. They had stockings over their heads; they were really playing the role.
Can you imagine, Mr. Muise, what the view of the public in that small town was when about six weeks later these three guys were walking around the streets of that community? There was no thought about the cruel and unusual punishment for the victims of these kinds of people. There was no thought at all.
I would gather from some of the witnesses I've heard that it would be wise to let the 18-year-old finish his school and that we shouldn't punish these young people too hard when it's the first time. I really get tired of that.
So, thank you, Mr. Muise, for referring to the victims of crime as often as you do.
I was surprised to hear even a mention of consecutive sentences. I've been trying to look for consecutive sentencing in this country for a long time. It seems to me if you murder 11 people, maybe you ought to get 11 life sentences to be served consecutively, not concurrently.
One day I went into court, and do you know what? I saw two people get a consecutive sentence and it almost shocked me. Twice they had smuggled grain across the border to the United States and twice they were sentenced, and it was consecutive: “We'll teach those farmers to sell their own products twice. Serve it consecutively.”
You see, the whole attitude out there on these kinds of events.... I know they are small in number, but it has brought on a huge public outcry. More and more, when these events take place, like on Boxing Day in Toronto, there is an increase, there's a public outcry. And there's not one of us here who didn't get elected with the intent to come here to try to fix it. It's every one of us. It doesn't matter.
An hon. member: That's right.
Mr. Myron Thompson: In reference to the campaigning during the election, you only need to look at Bill to see if there has been any change in attitude, and I think you will concur that there certainly has been.
I appreciate you. I just want to say how much I appreciate people who speak out strongly for victims. That is no reflection on what the witness of the other party.... I'm not reflecting on it in that sense. I know the gentleman is probably close to my age and has been around this country for a long time and has a lot of heartfelt thoughts for victims of crime. I'm sure he does, especially if he has grandchildren, etc. We all want to protect them.
I want to thank Mr. Muise for addressing this thing from the point of view that there's a public outcry to start protecting victims in this country, and I applaud you. And, yes, I'll charge expenses for that speech.
Thank you very much for the opportunity to be here. I understand I have about ten minutes, but it probably won't take quite that long.
Most of the general criticisms regarding this legislation have already been outlined, probably this morning as well as in the legislative summaries. It's somewhat disheartening to realize that the problems have in fact been so thoroughly acknowledged, yet the proposal is for the legislation to proceed regardless. Research findings over a significant period of time, in various countries and distinct jurisdictions, are apparently treated as irrelevant to some extent. I would therefore like to make six points that I think are important in thinking about this legislation.
First of all, contrary to Justice Minister Toews' comment that academics who were critical of the bill did so without knowing what was in it, I do realize that this legislation is not similar in very many ways to the three strikes model that occurs within the United States. In fact, this legislation is limited to certain firearm-related offences, and that's to the good. But it does still have the arbitrary aspect of putting its weight behind the concept of the “sequence of convictions” notion of punishment, with the unsubstantiated claim that somehow this legislation and this kind of supposed get tough approach will contribute to making streets and communities safer.
Keeping to the popular baseball analogy, the minister is correct. It does not follow the typical three strikes. In looking over the summary on minimum imprisonment under , it offers us a two-strike model for certain offences, rather than three. There is an unfortunate occurrence in baseball when the second strike results in a foul ball caught by some overly eager opponent. Of course, there are quite a number of examples where the second strike can add the weighted sentence. Trafficking in or possession for the purposes is three years for the first, and the second offence is five. Altering a firearm is again three and five. It becomes a second-strike situation.
It claims to promote deterrence, yet contradicts the principle of specific deterrence, in that there does not appear to be in the legislation a guarantee that the sequence of convictions will be spaced so as to give the offender the benefit from any learning, rehabilitation, or actual specific deterrence following the first conviction. Lawyers speak of the Coke principle, whereby the second offence, with the punishment that's due to that second offence, must not have been committed nearly simultaneously to the first conviction and therefore the first sentence.
If we believe at all in deterrence and rehabilitation, then fairness and justice require that the convicted person should have an opportunity to learn before harsher penalties are applied. An example given in the parliamentary summary presents us with the example of a person who commits two firearm-related criminal acts. The point is made that regardless of the order in which they were committed, the order that matters is the order of conviction. This issue is particularly troubling with the sections pertaining to criminal organizations, where the punishment can in fact turn out to be crushing, and perhaps especially crushing for a young offender or a young individual who is not being treated as an adult. The first offence brings five years, the second offence brings seven, and third offence ten, when in fact the criminal acts could have been committed nearly simultaneously.
Thirdly, this legislation has the potential to turn the process of prosecution into a game, with the potential for the justice system to “time” convictions based on having the longer sentence saved for the second offence. As is described again in the summary, a person commits two offences, possibly simultaneously or very close in time. The example given was illegal importing of a firearm and B and E to steal a firearm. A decision can be made to proceed quickly with the B and E, so that the second offence has the longer prison sentence, five years versus three years. I realize that lawyers are used to playing games in order to avoid mandatory second offence legislation with drinking and driving or gaming legislation. The games will continue, but in a changed format, this time to the detriment of any serious attempt at rehabilitation.
Of course, from my involvement with the Nathanson Centre, I am particularly concerned about the linking of this bill with criminal organization legislation. The application of criminal organization legislation is broad and vague, and now it's linked to this new legislation. Yes, while it has withstood some challenges, the new offence of “participation”, particularly that offence within a criminal organization, is extremely broad. The crown, as you know, does not have to prove that the participation actually enhanced the ability of the criminal organization to commit the act. The crown does not have to prove that the criminal organization actually even committed the indictable act. The crown doesn't have to prove that the accused was even aware of the specific act that he or she might have been facilitating, and the crown doesn't have to prove that the accused knew the identity of any of the persons who constituted the criminal organization.
Now, if we take this “participation in criminal organizations” category of criminal and apply it to this legislation, again remembering what the crown does not have to prove, a person can be charged and convicted of participating in a criminal organization where a restricted or prohibited firearm is used in connection with the criminal organization, and the result can be that the individual then earns, if it's a first offence, five years, if it's a second, seven, and if it's a third, ten.
What is of particular significance to me is that what seems to be happening is that we pass legislation to address specific, high-profile incidents, usually where there are political consequences, and they're treated as if they're to address a particular problem. But then they become normalized in our justice system. Hells Angels spawned the criminal organization legislation--the so-called anti-gang legislation--and now street gangs are being treated as criminal organizations. The question then becomes, who's next?
The first point is the notion of bang-for-buck, which I thought was an appropriate consideration, given the anti-firearm legislation. We already know that the mega-trials are swamping the justice system. The only way the justice system is surviving under their weight is due to plea bargaining and the dropping of charges. Yesterday's newspaper told us what we already know: the gang mega-trials have swamped legal aid. We're told that a single person earning $16,000 may not qualify for legal aid. And with this legislation, there will be an enthusiasm for more mega-trials, hideously long trials, attempting to show that the operation was in fact a criminal organization. And there will be suspects without adequate defence facing these extensive mandatory charges.
The impact on plea bargaining may in fact be mixed, which again hardly qualifies as equal justice. There may be less plea bargaining. Therefore, there will be more demand for trials, more legal aid needed, and more prisons. Or there may be more plea bargaining with the crown dropping or not laying the second charge, with some sort of agreement being made for consideration of above-the-mandatory minimum for the first sentence. However you figure it, it's not going to be the uniformity that I suppose underpins the thinking behind this legislation.
Finally, what is the answer? The legislation only discusses mandatory minimums, which serve only to limit the discretion of judges and result in the kind of finagling I'm talking about. The ceiling still applies, and the judges can still, and do, give adequately harsh sentences. No one anywhere, except possibly in the United States, thinks that prisons are the answer to the crime problem. Again, in the background information on this, it acknowledges the need to build prisons.
What I would argue we need to do is pay more attention to research being carried out in Toronto and elsewhere. The focus should be on resources and working with the communities where gun violence is prevalent.
Resources should focus on taking seriously what guns actually mean to the mainly men who use them. Money that is seemingly being designated for prison-building and the corporate entities that profit from that exercise should be turned back toward the communities. There should be a focus on funding policing, which has already claimed significant successes in helping make our communities safer and more secure, which has happened without this kind of legislation in place.
Thank you very much.
Thank you very much, sir.
Members of the committee, the Canadian Council of Criminal Defence Lawyers is very grateful for this invitation. We have been here on many occasions throughout the years, and I wanted to say, on behalf of our organization, that we feel that this committee, the justice and human rights committee, is probably the most important parliamentary committee working today in Ottawa. We don't just say that because we're criminal defence lawyers. We say that because you have enormous work that has been presented to you.
Our position is this: The government has sought to introduce a number of pieces of legislation, and they may be right, but there has been a lack of consultation. Historically, when bills are introduced, there is a considerable thorough lengthy consultation process that occurs with members of academia, with the police--not only local police forces but the RCMP--and with all the stakeholders, including and sometimes most especially victims. That has not occurred, in our respectful submission, in the case of this bill and of some of the other legislation that we have already been here on and that we anticipate you'll invite us back on.
What's happening here is that, with great respect, the government is downloading on this committee, and this committee is being asked to study bills, to call in persons, and do the work that normally would have been done in the normal course of events. I don't know whether that's because there's a legislative agenda. I don't know whether that's as a result of a minority government. But the bottom line is that it means that you are so important because the results of the decisions you make here will be with us a lot longer than any members in this committee, any testimony of persons who come before you, the Prime Minister, the Minister of Justice. You're talking about changing legislation that will live for a long time.
So we say to you--and I don't mean to be trite--you need the courage, whatever party you're from, to say you're not satisfied that you know whether this bill is going to change things, and to not react to political statements, because you're changing the laws of the democratic process. So if you are not satisfied--and I don't know how you could be satisfied yet--that you've heard enough on the background, that you've looked at the costs, that you've consulted widely, you cannot pass this bill, in our respectful submission.
It is very important, with great respect, that politics be put aside. We know that this bill may have become a catalyst as a result of a terrible shooting that occurred on Boxing Day two years ago. All parties may have supported something at that point in time, but all parties did not support the lack of consultation, and that's what needs to be done here. We ask you to continue to do it.
Mandatory minimum sentences accomplish one thing. They remove the offender and put him in jail. Yes, perhaps that offender cannot offend again for the period of time that he or she is incarcerated. That's presuming, of course, that the offender would offend. That's something the courts will look at in deciding what the sentences are, because we know that if you put that offender away--you've heard it before this morning and probably from other people--there's no money for the treatment that this person is going to need. Separation is not the basis of criminal justice, and that's all that mandatory minimums accomplish. There are lots of ways you can send a message out to respond to what may be perceived as a problem in big cities or elsewhere.
I want to say something else before I finish with this. The guns and gangs response, the big city problem, is not the same as the problem in the Northwest Territories. It is not the same as the problem in northern Saskatchewan. It is not the same as the problems in Manitoba. So when you impose minimum sentences, it affects everyone.
James Mahon, who is our representative from Yellowknife, sent this to me and asked me pass it on to you:
||Another effect that must be considered is the disproportionate effect that custody may have on different demographic groups. This consideration was addressed in the Supreme Court of Canada's decision in Gladue. This concern is even more apparent in northern aboriginal communities. A penitentiary term of custody in the Northwest Territories means incarceration in a federal facility in southern Canada. There is almost no possibility for any contact from family if an offender is “sent south”. Many families simply do not have the means to visit incarcerated persons in southern Canada. Base airfare from Yellowknife and Edmonton, in the range of $1,000 or more, makes a visit impossible, particularly for those of limited means or those that live in remote areas. In southern Canada, distances are shorter, and prisoners do not the face the complete severance of contact with family.
||I note that our Territorial facilities provide culturally relevant programming to our Aboriginal offenders. This rehabilitative tool would be lost in most southern facilities. Except for the capital of Yellowknife all of the communities are small, most under 1,000 persons, with large portions of those populations being Aboriginal. To house these persons in southern penitentiaries without the ability to address their personal circumstances completely turns away from any contemplation of rehabilitation and puts the focus of our criminal justice system back on punishment.
We have had the same comments from Manitoba, New Brunswick, Saskatchewan, and Alberta, in terms of this bill and the effect it has across the country.
I want to end by saying that we do not support this bill. We feel that if you took the time to seriously study it, being very careful, you would not pass it.
You are the legislators. If you, in your wisdom, decide that this bill has to be passed, we can help you with due process. We don't pretend to know whether this bill should be passed. That's your job.
If you decide to proceed, then the Canadian Council of Criminal Defence Lawyers suggests that there be an exception provision. In the principles of sentencing enshrined in section 718, one of the sections, 718.3(2), says the following:
||Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
We ask you to consider the following amendment:
||Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the Court before sentencing the accused shall consider whether the minimum punishment is necessary having regard to the public interest, the particular needs of the community and the interests of the accused in all of the circumstances.
If you feel this bill has to pass, and you put in this exception provision, you respect the judges. First of all, you see the message, that there should be minimum penalties, but you respect the judges to do their job. You have respected the public interest. You have respected the particular needs of the community to reflect Gladue, our aboriginal Canadians, and of course the individual interests of the accused.
That exception provision covers a lot of the criticism that you will face. It recognizes regional disparity. It's not just a big city crime bill. It gives the judges the message, but it allows them to do their jobs. It reflects the particular community.
Thank you very much.
I was going to speak much more quickly, but I'll speak slowly so that people understand.
I'm a provincial director, as well, of the Criminal Lawyers' Association. This is an association of just over 1,000 criminal lawyers from the province of Ontario. I'm the representative of the Criminal Lawyers' Association to the Canadian Council of Criminal Defence Lawyers, and as such I'm a director of the CCCDL. The Criminal Lawyers' Association of Ontario has also submitted its own brief to this committee and I commend it to you.
I've been practising criminal defence law for 25 years in the city of London, and I have appeared at all levels of court throughout Ontario. My perspective here today is that of someone who has the knowledge of criminal law as practised in this province. I've represented persons charged—sometimes acquitted, sometimes convicted—with crimes involving guns, and any insights I have come from that point of view.
I obviously adopt what Mr. Trudell has said, but in my own capacity here I've looked at the legislation and there are a few points I'd like to make and a few questions I'd like to ask. That's what criminal defence lawyers tend to do: they ask questions. My first question is, why? Why this legislation? What is it hoping to accomplish?
Well, at first blush, what it's hoping to accomplish is to get tough on serious crime. That is the phrase we've heard many times over the past little while. But does it do that? Let's look at this in a deeper way.
Why has gun crime increased, if it in fact has? Why is gun crime a problem that needs to be addressed? Will this legislation answer the question as to why? I submit to you that it does not.
I represent people who are charged with gun crime, and I look across at them, sometimes through the bars of a jail cell, sometimes across my desk, and I always ask myself, why did this person commit this crime, if in fact they're guilty? Why are they charged with this crime? What is going on here? That is the root problem that we have to get to before we have the kind of safety that is sought as a result of this legislation.
There are various levels of criminality, even with gun crime, and there is a root cause to that. That is not being addressed. Until it is, I'm going to submit to you that all this is going to do with the passage of Bill is to in some way instill a sense of false security over people. We have to understand why crime is being committed.
Let's look back 30 years in this country. We did not have, apparently, the level of gun crime then that we do now. We had the same Criminal Code and we had a Criminal Code that had no mandatory minimums. In the mid-1990s, the Liberal government passed some mandatory minimums of four years for robbery and one year for possession of certain firearms. We still have the problem. The question again is, why?
The reason, perhaps, is that we have to study, we have to consider, what we can really do not just to punish crime but to stop it from its root level. We have to understand the issues of poverty, of education, of social welfare. Those are much broader issues than perhaps what this committee can do, and they are much more expensive issues from the point of view of a parliament. They are expensive issues because they cost a lot of money to implement. Social justice programs, anti-poverty programs, increased education, understanding how our children are socialized into accepting the fact that gun violence may be acceptable is what we really need to do in order to stop this.
A number of years ago it was socially acceptable to smoke in this country. We still have smokers, but the way smoking was cured was not by any punishment but because it was made socially unacceptable to do that.
Impaired driving has decreased. The punishments have increased, but if you look around, one of the reasons, of course, is that it has become socially unacceptable to be that person who gets behind the wheel and might harm someone.
So we have to ask ourselves—and I don't have the answers—why is it attractive to use guns? It's not because the Criminal Code is soft. My clients don't commit these kinds of offences because they think they're not going to be punished. They don't consider that. They consider being caught.... You've probably heard this from other persons who've made submissions before this committee and elsewhere, but it is the fear of being caught that perhaps is the greatest deterrent, not the actual punishment itself.
So what I'm saying is, to just impose mandatory minimums and arbitrarily believe that maybe if we make it five years, seven years, and ten years, that will work, I submit to you that there's really no evidence of that.
Even if you do pass the legislation on that basis, you're still not getting to the problem of why, as in why this horrible incident happened in Toronto on Boxing Day. It didn't happen because someone said, “Oh, we're soft on crime, so I might as well go and shoot up the streets.” I think it would be extremely naive for anyone to believe that was the cause of it, or to think that the corollary of that, imposing a stiffer penalty, if one isn't considering the consequences of crime, will have an effect. We have to understand why those young men may or may not have been there, what was going through their minds, and why that was acceptable. Why is it that gun violence is tolerated? What is the root cause of that? That is the greater issue that requires the kind of consultation and study we are talking about today.
Two things I'll point out in support of my position. One, you're all familiar with New York City, of course. A number of years ago, I don't think any of us here would have considered venturing into Times Square in the evening. Now Times Square is perhaps one of the safest places in the United States. Why? It isn't because mandatory minimum punishments were imposed. It's because the police presence in Times Square was expanded greatly. There are police officers every 100 feet, and they have a police precinct there.
So it's the fear of being caught and it's the presence of the police that deters crime in that instance. I point that out because it reiterates the fact that it is the detection of crime that is important.
One item in the bill that I would point out specifically as one that may be problematic to you is proposed section 230, dealing with murder. This bill creates the new offence of breaking and entering to steal a firearm. It now says that culpable homicide is murder where a person causes a death during the course of certain offences, and that is one of them. It also includes the offence of robbery under section 343 of the Criminal Code.
I think it's incumbent upon the committee to realize that some years ago, the Supreme Court of Canada struck out robbery, in a case called Vaillancourt, as being available for this constructive murder section. Consequently, I believe and would submit to you that including this section concerning break and entering to steal a firearm would likely meet the same fate. What does that say? It says that, similar to what Mr. Trudell said, had there been, before this, the kind of consultation that we are suggesting, it would have been a very simple matter for someone to have pointed out that the section is probably unconstitutional on its face with respect to those two sections, one already being struck down.
Frankly, it's sloppy in terms of the way the matter has been drafted. That didn't have to be in there from the beginning. This goes back to our position that if we consult about these matters ahead of time....
We are criminal defence lawyers. We defend people who are charged with crimes. But we're also citizens of this country. We also have families and homes and properties. We have a stake in having a safe Canada. We are here to assist. Our message for you today is that we're still prepared to do that, but Bill is not going to get you the result you want in terms of safe streets.
You have to consult more. You have to look at the root causes of crime. That's what has to be dealt with.
You may perceive that some of the legislation that's being introduced is directly or indirectly an attack on the principles of sentencing, because the principles of sentencing, as set out in section 718, really talk about using jail as a last resort. The particular section I referred to is subsection 718.3(2), and it says this:
||Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
So that clearly addresses the issue of discretion and addresses what the minimum punishment is that you have to have so that it's a minimum punishment.
Our suggestion is that this be amended to include: “Notwithstanding any minimum punishment prescribed, save and except for the offence of treason or murder, the Court before sentencing the accused shall consider whether the minimum punishment is necessary having regard to the public interest,”--that's number one--“the particular needs of the community and the interests of the accused in all of the circumstances.”
So we say that if that exception provision is put in there, then you've accomplished everything that some may suggest you need to accomplish: sending a message out, respecting the courts doing their job and applying the discretion, reflecting the interests of the community, and also the particular community, for instance, if it is an aboriginal community.
I would like to say something in response to the question my colleague Ms. Beare was talking about, and that's the whole phenomenon of street gangs. I know that the chief was here today and Attorney General Bryant was here today. The prosecution of the street gangs in Toronto has been overwhelmingly successful. It's incredible, and the credit goes to the police and to the Attorney General in bringing these prosecutions forward. What happened was they made a concerted effort, they put the manpower out there, they put special teams there to give advice to the police in the beginning. They ran it like a business. It has nothing to do with minimum sentences, nothing whatsoever.
You remember what happened in Montreal; you read the papers. The concerted efforts of law enforcement, with guidance from the crown's offices, brought down a major alleged organization. They didn't have any of those minimum sentences. And when judges eventually get those people before them, if they are found to have committed offences that call for jail, they're going.
Three days ago, here in Ontario, Mr. Justice Archibald gave a 21-month sentence for someone in a car with a gun--more than anybody asked for. Judges are imposing these sentences, and there's no question that if you have a gun in the city of Toronto, or you access a gun, or you're in a room with a gun, then the system looks at that and the judges look at that from day one very seriously: they need minimum sentences.
So law enforcement is doing the job. What we're afraid of is that this bill simply reflects a political statement. We're sorry, quite frankly, that the Attorney General was here today, from this province, supporting this bill. I understand what he was saying. He was here to talk about things that are going on in downtown Toronto and an announcement today that Premier McGuinty.... It's all politics.
Thank you for being here.
I'm speaking mostly to Mr. Rady, and anybody else can join in.
Right off the bat, I want to remind Mr. Rady that it's true that the extra police in New York created quite a reduction in crime, but behind that was the broken windows theory. There was a decision made by the authorities and legislators that if you break a window, you go to jail; if you put graffiti on the wall, you'll be picked up and go to jail. That required more policing, the two worked pretty well hand-in-hand, and it's a very safe place to be. We forget about the fact that there was a decision made in regard to what to do.
Regarding root causes, I'll tell you that we've had lots of discussions and we hear an awful lot about this. When I was first elected in 1993, I sat down with Allan Rock, and we hit it off pretty good for quite a while. We used to talk a lot about root causes.
Yes, I agree that the root causes need to be addressed. We used to make our lists. I was sitting here today after you made your presentation about root causes, and you talked about poverty. Then I remembered my grandfather telling me that the Roaring Twenties was an awful era for crime, and yet the Dirty Thirties really tamed down. If it was poverty, there was a whole lot less crime than during the Roaring Twenties. Whether that has any bearing on the conversation, I don't know.
Then we talked about Hollywood and violence in film and the WWF—my God, have you watched that ultimate fighting on TV lately? It's violent. In all of these things, maybe there's a cause.
We know that drugs exist. I've been told over and over again that the population in the penitentiaries would go way down had it not been for alcohol. Yet we've had decisions that our bars should be open seven days a week instead of only six, and that they should stay open until three or four in the morning instead of closing at eleven or twelve in the evening. All of these decisions are root causes.
Child pornography is rampant out there. It poisons a sick brain even further. It causes them to act out their fantasies, and drastic things happen. It's a root cause.
Yet every time you try to do something about it, you get different decisions in courts that affect that effort, such as the John Sharpe decision. It had quite an impact, and I honestly believe that we tried hard with the Liberals to do something about child pornography. That decision made it practically impossible to move on this.
Can you imagine what you are going to do about alcohol? Bring back prohibition? That doesn't work, we've been told one hundred million times. Always another root cause that's hard to deal with.
When you go through all the root causes...I can't for the life of me figure out one cause that justifies any human being picking up a gun to endanger, threaten, or hurt the life of a citizen in this country. I cannot find one root cause. Yet we put an emphasis on how we have to do deal with root causes.
Mr. Trudell mentioned that things are decided for political reasons, and I would suggest a lot of these are. All of us stood on the platform in January and we said we've got to do something about crime and these guns; we have to do this, and we're going to do so. Lo and behold, we've been elected, and we're here now trying to do something about it. Because I can't find any root or justified cause to pick up a gun and hurt people, we have to create some legislation to deal with those who choose to do so.
Thus comes —I have not heard any other solution that makes any more sense to me—because now we have legislation dealing with what I know is a root cause, which is the criminal. Lo and behold, criminals are really a big part of the root cause of crime.
Let's deal with them, which we have to do as legislators.
But to talk about it in terms of, “We'll have to deal with root causes”, my goodness, I could give you a whole list. We tried to do that. It doesn't work. We've tried to protect the victims when it comes to pornography, when it comes to the rights of expression, and when it comes to the freedom of being able to run a bar and put on TV what you want to and listen to hard rock music whenever you want. We know that's been a cause.
I think we're really barking up the wrong tree about that, because I just can't find anything that justifies picking up a gun and hurting people.
My name is Fiona Sampson. I am the director of litigation at LEAF, the Women's Legal Education and Action Fund.
I'm here today to talk to you, I understand, for ten short minutes. I have three important points that I want to make, so I'm going to get right into it.
I want to start by telling you a little bit about LEAF and then move into a summary of the three main reasons why LEAF is opposed to the passing of .
LEAF, the Women's Legal Education and Action Fund, is a national non-profit organization that's dedicated to the advancement of women's equality rights in Canada. Primarily, we do that through using section 15 of the charter and the equality guarantees that are included in section 15 of the charter.
Fundamental to our mandate is the understanding, endorsed by the Supreme Court of Canada, that section 15 obligates the federal government both to protect the guaranteed rights against discrimination and to equality found in section 15 and to promote those rights.
Moving to the three main reasons why LEAF is opposed to the introduction and passing of , which are actually outlined in submissions we have forwarded to the justice committee, and I understand they probably aren't before you because they haven't been translated yet, but they are something for you to look forward to—they are coming your way—the first reason LEAF is opposed to Bill C-10 is that Bill C-10 does not reduce violence against women. If the point of Bill C-10 is to reduce violence, it doesn't achieve that with respect to women.
Women experience violence because of their unequal social, economic, and political status in Canada, a status that results in their objectification, their disempowerment, their devaluation, all of which results in the status of second-class citizens, which leaves us vulnerable to violence. That's the cause of violence against women. and mandatory minimum sentences relating to firearms do nothing to reduce that source of violence against women.
Certainly LEAF supports the reduction of violence and the reduction of crime, but what happens with Bill C-10 and with mandatory minimum sentences attached to firearms is that they come too late to be of any real help to women. They're imposed after the fact. They do nothing to prevent violence, and they come at a time when women have already experienced the violence, so they're really of no value.
Definitely women and LEAF recognize the violence that's associated with guns, and we oppose it. There is an intrinsic link between gun violence and masculinity and violence against women, and that's apparent when you just look at the statistics: 85% of guns in Canada are owned by men and 30% of gun victims in Canada are women. That's something that concerns and distresses LEAF, and LEAF supports gun control to address that concern, and we support measures that get guns off the streets. But having mandatory minimum sentences attached to firearms doesn't address that problem.
Our second main point relating to our opposition to primarily relates to the disadvantage that's associated with Bill C-10 and that we predict will be felt because of the implementation of Bill C-10.
Bill C-10 is a classic example of the failure of the federal government, were it to pass, to actually protect and promote equality rights, the obligation the Supreme Court has found the federal government has under section 15 of the charter.
What really happens with something like Bill C-10 and the imposition of mandatory minimum sentences attached to firearms is that it targets already disadvantaged groups. If I can draw your attention to.... Well, you don't have the submissions yet, but you will soon. The Report of the Commission on Systemic Racism in the Ontario Criminal Justice System found that black people are already overrepresented among prisoners with weapons possession charges, so we know that with the targeting of firearms crimes by attaching mandatory minimums to those crimes in particular, they will affect black persons disproportionately.
They will also affect aboriginal people disproportionately. We already know that aboriginal people are disproportionately represented in the criminal justice system and in prisons, so they will be further disadvantaged if is passed, particularly the section of Bill C-10 that relates to the attachment of mandatory minimums to persons who have committed previous offences. If you go to LEAF's submission, footnote 18, we have a whole list of primary and secondary sources available to you to support that. So the evidence is there.
Sometimes proponents of mandatory minimum sentences understand it to be a form of equality, and on one level it can be understood to be a form of equality. It's what we call formal equality; it applies equally to all persons. Another example of formal equality can be seen in a situation where you have a building, and the building has been designed so it's only accessible by stairs. The architects of that design might say that it's equally accessible to everybody, that anyone can get in, that nobody is prevented. There's no sign that says certain groups are excluded. But if you're in a wheelchair, you're essentially excluded. So it looks like it's available to everybody, but in effect it's not.
With mandatory minimum sentences, it's a similar theory you can apply. It looks as if it's applicable to everybody, and it looks as if it's fair, but actually, in effect, what happens is that because it's targeting individuals who are already predisposed to disadvantage, who are already over-criminalized, it results in further disadvantage and, LEAF would argue, discrimination. So that's a problem.
The other reason it can be understood to be inequitable rather than equitable is the pre-existing racism that we know informs and characterizes the criminal justice system in Canada. Every level of court, royal commission, justice inquiry, independent research, and academic research--we have it all--provides evidence that the criminal justice system in Canada is characterized by racism, and that gets perpetuated by mandatory minimum sentences attached to firearms. So that's another problem, and that's another reason why LEAF is opposed to the introduction of Bill .
Really, the problem with Bill is that it does nothing to promote or protect equality. It only perpetuates disadvantage and inequality, and it really targets and individualizes the problem, rather than addressing the social causes of the problem.
This is the third point that LEAF would like to make in terms of our opposition to Bill . Really, what LEAF identifies as much more preferable to the punitive measures attached to Bill C-10 are preventative measures and looking at the social causes of violence and crime and firearm crimes, in particular. In particular, what we would support are measures that provide for community development and increased education, increased employment opportunities, and improved community development--programs that would promote opportunities for people who are already disadvantaged.
They're definitely long-term solutions. They're definitely not quick fixes, and they're not easy sells. They don't win votes the same way a quick fix like mandatory minimum sentences attached to firearms might sell votes. But they're really much more effective, they're much more long term, and they actually promote and protect equality for disadvantaged persons. So that's why LEAF supports that approach rather than the approach of punitive measures attached through mandatory minimum sentences.
In closing, I'd just like to read a quote by Helene Dumont. It's from her article in the 2001 Osgoode Hall Law Journal, and it really captures LEAF's position on Bill . This is on the cover of our submission, so you'll get a chance to enjoy it for yourself. Helene Dumont writes:
||How can our criminal laws better reflect the public's concern for safety, while promoting their desire for a democratic society based on peace, liberty, tolerance and justice? To accomplish this goal, legislators and the Canadian public as a whole, should try to apply more reason than fear in developing criminal law-infrastructure for safety. They must recognize the symbolic and political power of criminal laws, and determine the effectiveness of each punitive measure in terms of securing personal and public safety. Finally, legislators must always choose the solutions that will result in a peaceful, free, tolerant, and just society.
So subject to any questions you might have, those are our submissions.
Thank you very much, Mr. Chairman and members.
Thank you for inviting me once again. As I expressed to Madame Diotte, I am very grateful that you have come halfway, to the Toronto airport, as last time I had to go the whole way to Ottawa.
Of course, we at LAO don't take a formal position on the merits or otherwise of the proposed legislation. I'm here to respond to the committee's two questions from Mr. MacKay, as I understood them. First is to talk about the anticipated effects on legal aid costs if this bill were passed and implemented. Second is to offer some brief high-level remarks about LAO's general financial situation. The timing is opportune, as we have been in the press this week.
I have been here most of the day, and I heard Chief Blair and the Attorney General this morning. I want to start by recommending to you two of the comments they made this morning.
Chief Blair spoke at length about the guns and gangs prosecutions, the other projects, and the effects they're having in the city of Toronto. He stressed that these prosecutions are having an impact on every part of the justice system. He mentioned that they're imposing tremendous strain on Legal Aid Ontario, and I want to confirm the truth of that statement.
Secondly, when the minister was speaking he supported this bill and said on two occasions that we have to do everything. Legal Aid Ontario supports that statement. We believe that doing everything includes ensuring the defence of these charges, which of course is the statutory right and charter right of the poor accused person facing these charges. I want to support the minister's statement that the defence of these charges is adequately funded.
What we find at Legal Aid is that all justice initiatives create new pressures for more police officers, more jail sentences, longer jail sentences, more wiretap investigations, and more mandatory minimum sentences, which all drive up costs for Legal Aid Ontario, and indeed for all legal aid plans in the country.
When this legislation was first introduced, we in Legal Aid Ontario, working with officials in the Ministry of the Attorney General, tried to calculate what the likely effects on our costs would be. Our best estimate is that this bill will increase costs at Legal Aid Ontario in the range of about $382,000 per year. This is based on hard data and professional analysis. The consensus of Legal Aid and ministry officials is that increased penalties, and especially mandatory minimum penalties, will lead to more trials.
In 2005-06, there were 2,346 firearms charges brought before the courts of Ontario, and particularly before the Ontario Court of Justice--the provincial court that is the level at which all criminal proceedings start. Interestingly, these firearms charges already have a very high trial rate, in that only 17% of accused persons facing these charges actually plead guilty to them. That means in 2005-06 there were approximately 400 pleas of guilty. It's our consensus view that about three-quarters of these cases will likely go to trial as a result of facing mandatory minimum penalties. Additionally, between 2004-05 and 2005-06, we observed that firearms charges increased by about 19% in the Ontario court system.
So in these calculations we assumed there'd be a further 19% increase in 2006-07, which would mean that if the legislation were in effect, there would be 356 extra charges going to trial per year in Ontario. That means 178 new trials, because, on average, in the court system each individual faces two charges, so you take the number of charges and divide it by half to produce the number of individuals who will be going to trial.
For these kinds of offences, approximately 94% of the accused receive a legal aid certificate. For these 178 persons facing these charges, 167 of them are likely to be on legal aid. Looking at our cost data and court data, on average we expect that there will be four days of trial per each case at four hours per day, plus seven hours of preparation time, and therefore a total of 25 extra hours per case.
In total, it's 25 hours times 167 trials times $83.10 per hour, the middle Legal Aid rate, for a total estimated cost of $346,900. In these calculations it's normal to add a factor for administration. Legal Aid Ontario's administration factor is 10%. That produces a total of a little under $382,000. We hope the Minister of Justice will keep that figure in mind when it comes time to renew the federal-provincial criminal legal aid cost-sharing agreement, because that kind of number will be repeated across the country.
The other topic I was asked to comment on was the financial pressures facing Legal Aid Ontario. I know from speaking to colleagues across the country that all legal aid plans are facing financial pressures, but particularly Legal Aid Ontario feels very severe pressure at the present time.
In the short term, you may have been aware of press releases to the effect that as of the end of the first six months of the year, Legal Aid Ontario is $10 million over budget in the certificate program. That is the program that includes criminal coverage. I can tell you that our analysis of that indicates that it is caused significantly by the pressures of the guns and gangs and project prosecutions that you have been hearing about this morning. In fact, we anticipate that without action the cost to Legal Aid could be as much $10 million higher than budgeted for, for the big-case part of our certificate program.
Our budget for that program for this year is about $19 million. At the moment, it looks as if we will be spending $25 million, and if we had taken no action in relation to these charges, we expect we could well be spending as much as $29 million or $30 million this year. In itself, it's a $10 million pressure in this year. That's the short term.
On the longer term, we face ongoing criminal pressures from criminal and family caseloads. Our demand is driven by the number of people coming into the court system. The levels of criminal court activity are rising generally throughout the province.
New court criminal proceedings have risen from 540,000 new charges in 2003-04 to 580,000 in 2005-06, and the increase continues this year, one of the main reasons being the hiring of 1,000 new police officers throughout the province. This means that criminal certificates have risen from under 61,000 two years ago to 65,500 in the same timeframe last year, and that pressure continues intensely.
We operate within a limited budget. We have a targeted number of certificates that we are permitted to issue each year. The increases and the pressures in criminal law are constraining our ability to meet demands in other areas of certificate law, in particular family law.
Family court proceedings are increasing and have risen, for example, by 6% between 2004-05 and 2005-06. This puts increased pressure on the certificate program. In order to manage this, our family law refusal rates--the percentage of people applying for legal aid for family matters--are now at 35% of applicants.
In addition, we face variable revenue levels, and next year we anticipate a reduction in revenue from the law foundation as a result of changes in interest rates and economic activity. We expect there will be a decrease in the realm of $8 million to $10 million.
In recent years, LAO has not had an increase in its core funding. We have absorbed $44 million in inflation and salary increase costs within the same core funding. However, as the Attorney General said this morning, LAO has received an increase of $25 million in its budget in the last four years, but this is in fact funding tied to specific increases in the duty counsel program to fund the creation of the criminal law staff offices and to fund the tariff increases that were passed in 2002 and 2003.
LAO has no reserves or savings left, so we are facing quite a steep precipice immediately driven by guns and gangs and other project cases. This bill will add to the financial pressures we face, and we hope that Parliament will recognize that and approve increased funding for the federal-provincial criminal cost-sharing agreements.
So just to repeat, we face short-term pressures, long-term demand pressures, no increase in core funding, and variable revenues. It's a difficult situation.
Again, I apologize for my lateness. I also apologize on behalf of Marisha Roman, our vice-president, who was with me last month in Ottawa. She very much wanted to be here today as well, but she came down with the flu this morning, had to leave work, and was not able to make it.
We are very pleased to be appearing here again before the Standing Committee on Justice and Human Rights. Since our last appearance before you was just a month ago, we'll dispense with the background information on our organization, as we trust it's relatively fresh in your mind. We first want to thank the members of the committee for its consideration of our submissions regarding Bill .
We're here today to discuss Bill , a bill that amends the Criminal Code. Prior to commenting specifically on these amendments, we feel it's important to address what is, for us, the disturbing trend of the increasing reliance on minimum sentences in the Criminal Code.
This trend did not begin with the current government. Bill , passed in the last Parliament, added minimum sentences to 11 sexual offences. In some cases, the minimum sentences were as low as 14 days. It appears that often the only explanation for the imposition of a minimum sentence is to prevent judges from considering a conditional sentence. Minimum sentences of 14 to 90 days cannot seriously be justified for their ability to deter crime or to lead to a change in behaviour of offenders while incarcerated.
In our discussion before the justice committee last month, we spoke about the ability that judges have to craft conditional sentences that can address the root causes of offending behaviour without sacrificing community safety. In fact, a well-crafted conditional sentence will lead to increased community safety. Unfortunately, increased reliance on minimum sentences means there is less room for conditional sentences.
We would like to raise four specific concerns with respect to Bill and make one suggested amendment. Our concerns are: one, we believe the manner in which the bill deals with hybrid offences is unconstitutional; two, too many minimum sentences start with penitentiary terms; three, there is no reason to believe that minimum sentences deter crime; and four, the bill will increase aboriginal overrepresentation in prison. Our suggested amendment is that the bill allow for a judge to avoid the imposition of a minimum sentence in exceptional circumstances.
We will start with our concerns.
At our last appearance before the committee, we noted that one of the problems with Bill was that it gave the Crown the ability to decide whether an offender could receive a conditional sentence, based on whether the Crown proceeded summarily or by indictment. This problem is even more acute in Bill . A number of offences in Bill C-10 are hybrid offences. There are no minimums if the Crown proceeds summarily. There are minimums if the Crown proceeds by indictment. In some cases, these minimums start at three years' imprisonment.
For example, a first-time offender charged with unauthorized possession of a prohibited or restricted weapon that is loaded or near ammunition will, if the Crown proceeds summarily, have all sentencing options available. On the other hand, if the Crown, in its sole discretion, chooses to prosecute by indictment, the minimum sentence is three years' imprisonment.
Such an arrangement places a great deal of unchecked power in the hands of the Crown. It also raises very serious concerns that the section violates the protection against cruel and unusual punishment found in the Charter of Rights and Freedoms. We will participate in any constitutional challenge against these provisions of Bill .
Secondly, we are concerned by the increased number of minimum sentences that start at three years' imprisonment. While there are some individuals who, for public safety, must be sentenced to penitentiary time, this bill casts the net too wide. Members of this committee should be under no illusion that a three-year sentence will lead to positive change in the lives of offenders. Information we have received from Correctional Service Canada in Ontario indicates that individuals sentenced to two- to three-year sentences will receive no substantive programming at all in penitentiary prior to their release.
This bill will result in some individuals with little or no prior involvement with the criminal justice system going directly to the penitentiary. Being incarcerated with the most dangerous offenders in Canada will give these people the opportunity to learn new skills, but not, unfortunately, the skills we would want them to learn.
We have to be realistic about what happens to people when they go to penitentiary. In most cases, they come out worse than when they went in.
Third, at the heart of this bill is the belief that minimum sentences deter people from crime. Since much of this bill is concerned with increasing the minimum sentences for offences where minimum sentences already exist, the assumption must be that higher minimum sentences deter people even more. The fundamental problem with this theory is that there is no evidence to support it. Studies by the eminent British criminologists Andrew Ashworth and Andrew von Hirsch both concluded that deterrence in the criminal justice system comes from the probability of detection rather than consideration of potential punishment.
The penalty for first degree murder is life imprisonment without parole for 25 years, yet despite this most severe mandatory minimum sentence, gun violence and gun death were quite prominent last year. If a 25-year mandatory minimum did not deter the most serious of gun crimes, why should we expect that shorter minimums would accomplish the task?
Our final concern with the bill relates to aboriginal overrepresentation. It must always be kept in mind that reliance on deterrence as a theory for punishment has a significant impact on aboriginal people. As we noted last month, despite making up only 3% of the Canadian population, aboriginal people comprise 22% of those in Canadian prisons. Aboriginal people know better than anyone else that doing the crime means doing the time, yet rates of aboriginal over-incarceration continue to rise. In large part, this is because much of aboriginal offending is not calculated organized crime, but rather an unthinking response to immediate pressures. Addictions, interpersonal violence, a sense of hopelessness, and the legacy of government practices such as residential school and mass adoptions all play a large role in explaining why aboriginal people commit crime. This does not excuse the behaviour, but we need to understand that the threat of minimum sentences will do nothing to address the root causes of aboriginal offending. It will merely lead to more aboriginal people being sent to jail for longer and longer periods of time.
Why should Canadians care that our jails are becoming increasingly the preserve of aboriginal people? After all, if aboriginal people commit crimes, why should they be exempt from jail, the most serious sanction the criminal justice system provides?
To answer these questions it's helpful to return again to the decision of the Supreme Court of Canada in Gladue. When discussing aboriginal overrepresentation, the court said:
||These findings cry out for recognition of the magnitude and gravity of the problem, and for responses to alleviate it. The figures are stark and reflect what may fairly be termed a crisis in the Canadian criminal justice system. The drastic overrepresentation of aboriginal peoples within both the Canadian prison population and the criminal justice system reveals a sad and pressing social problem.
Aboriginal overrepresentation speaks to the failure of the criminal justice system to address the root causes of aboriginal offending. The result of paragraph 718.2(e) and the Gladue decision has not been that aboriginal people have stopped going to jail.
Both paragraph 718.2(e) and Gladue speak of the need for restraint in the use of incarceration for everyone. In fact, it has been non-aboriginal people who have been the primary beneficiaries of these initiatives. A study by Julian Roberts and Ron Melchers showed that from 1997 to 2001 the rate of aboriginal incarceration rose by 3% while the rate of non-aboriginal incarceration decreased by 27%. Similar results have been found in examining the impact of sentencing changes in the Youth Criminal Justice Act. Despite specific admonitions in legislation, the judges need to look for alternatives for aboriginal offenders. It is non-aboriginal people who are seeing the greatest decline in incarceration rates.
Please rest assured that we are not urging that more non-aboriginal people be jailed, but it is vital that you be aware that the impact of moves to make the criminal justice system more punitive will fall disproportionately on aboriginal people.
Jail has proven itself to be singularly incapable of resolving the social problems that are at the root of aboriginal offending. More jail will be similarly ineffective.
These concerns lead to our proposed amendments to the legislation. We suggest that the bill give judges an option to not impose a minimum sentence in exceptional circumstances. Such a provision will go a long way to meeting objections that the law is unconstitutional and would allow judges to consider other sentencing provisions, such as contained in paragraph 718.2(e) of the code, in situations where to impose a minimum sentence would be clearly unjust in the circumstances.
For almost 20 years, royal commissions, judicial inquiries, parliamentary committees, and decisions at all levels of courts in Canada have urged that the problems of aboriginal overrepresentation be addressed. For every small step forward, we confront great obstacles pushing us back. Sadly, Bill C-10 is another example of a serious step back.
We urge this committee to move away from increasing reliance on minimum sentences. If we are serious about wanting to make our communities safer, we need to do more than lock people up. We need to ensure that there are programs in place in the community to address the root causes of criminal behaviour. We need to have programs in place in correctional facilities to do the same.
Thank you very much.
My thanks to the witnesses for being here today.
We've had a full day and lots of testimony, so there's lots to think about. I really want to focus on what this bill does, not what it doesn't do.
We heard testimony today from the police, from attorneys general, from other concerned groups, from you, and from defence lawyers. In the criminal justice system, of course, there are all the other aspects. We've heard from Mr. Biggar that there's cost, and we know that. The Minister of Justice had an extension on the current legal aid funding. That's something that's raised, of course, by the provinces and something that's an aspect of our criminal justice system. And Ms. Sampson mentioned that this bill does nothing when it comes to decreased vulnerability, promoting equity, ending oppression, and those kinds of things.
Let's talk about what the bill does. This bill is about making sure that people who use a firearm in a case of attempted murder, discharging a firearm with intent, sexual and aggravated sexual assault, kidnapping, hostage taking, robbery, and extortion serve a certain amount of time in prison. It doesn't change the maximum amount to which they can be sentenced, but it sends a message from Parliament that in the past, some individuals have not received an appropriate sentence. We want to give our direction on what we can do as the chief lawmakers in the country, on what we feel is appropriate.
Of course, there are all different kinds of circumstances. We've heard the examples of rural areas versus urban ones and so on. But just to focus on what the bill does, we've heard some testimony that some people don't believe there should be any mandatory minimums whatsoever. There already are mandatory minimums for certain gun crimes. Is it the submission of anyone here that there's no case where there should ever be a mandatory minimum?
I know you're not going to comment directly, Mr. Biggar, and I understand where you're coming from. You have funding limitations and you need to make a pitch. The only comment I would make on that—and I'll get your response and then go back to the first question—is that of course this costs money. There's going to be money saved in some areas because of this, and there's going to be money spent. But when the discussion turns only to money, I think we lose sight of the fact that we're trying to protect lives. We heard testimony today that when you take off the street the small number of people who are committing serious crimes, lives can be saved and the gun violence goes down. The chief of police from Toronto gave that testimony today.
So I'd just like your comment, Mr. Biggar, on the idea that there is more to this story than cost.
To the others, do you feel there should ever be minimum sentences in any circumstance?
I will make a short preamble. I will then ask a question of Mr. Biggar and perhaps also of Mr. Rudin and Ms. Sampson.
First, I categorically reject this statement that the Criminal Code is bias and racist. I would like to know how you can justify saying this. I have been a member of Parliament for barely nine months, but I will defend my friends on the outside, namely those within the Liberal Party, the Bloc Québécois and the NDP. They have worked for 10 or 15 years on the Criminal Code, and I do not think that they helped create racist or bias provisions.
My first question is for Mr. Biggar.
Legal Aid Ontario benefits from truly exceptional conditions. Indeed, for your work you are paid on an hourly rate basis, whereas in Quebec, the system is based on mandates. You probably know that there was a megatrial at the Gouin Legal Centre near Montreal. Of the 36 accused members of the Hells Angels, 19 asked for legal aid. The work was paid so badly that the lawyers had to make a special request for compensation, something which never would have happened in Ontario, since you are paid an hourly rate and things are fairly comfortable there.
You say that it might increase cost, but when charges are laid, they are often laid against someone who is already in jail, and the services of a lawyer are provided at the hearing. The Legal Aid System in Quebec works the same way. When the evidence is disclosed, you have the right to see it, and if you see that there is no case to be made, you can refuse to continue to execute the mandate. I do not know how it works in Ontario, but it seems that things proceed with much more ease over there than in Quebec.
My second question is for Mr. Rudin, whom I will great once again, since we have already met twice.
You say that Native People are overrepresentated in Canada prisons, among other places in Saskatchewan.
In Montréal, every street gang is made up of Haitians. Sooner or later, they will be arrested, which will result in there being more blacks in jail. In fact, this is already the case. And just because Haitians make up street gangs, does that mean our legal system is racist? I am trying to draw your attention on that point. Blacks living in Montreal are good people. Some of them are even special. However, today, they are the ones who make up street gangs. I am not saying that this will be the case 24 years from now. In Europe, in certain prisons, there are black wings because they are only filled with blacks.
I am trying to draw a parallel between something you said earlier concerning native overrepresentation in our prisons. The Capital of Nunavut has a population of 3,800 citizens. Let's imagine that a person up there acts like a white, and threatens his wife with a firearm in the course of the dispute. The RCMP takes him away, and so on. He will be kept in the municipal jail, but if he is found guilty, he will have to serve his sentence in a federal prison. That will be 3,000 kilometres from where he lives. So, believe me, I understand your point.
But would you change my mind if there was a federal prison in Nunavut, located directly beside this individual's place of residence? Is it a question of distance? We were told two or three times that sending inmates 3,000 kilometres away did not make sense. As you said, there are prison gangs, and if you want to survive, you have to be a member of those gangs.
I talked about the overrepresentation of blacks in Montreal, which is the large city, and about your own problem with overrepresentation. Does this imply that the bill might not work, might be racist, bias or something else? I want to know what you think about this because we will have to take a position.