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CANADA

Standing Committee on Justice and Human Rights


NUMBER 036 
l
1st SESSION 
l
39th PARLIAMENT 

EVIDENCE

Wednesday, November 29, 2006

[Recorded by Electronic Apparatus]

  (1535)  

[English]

     I would like to call to order this meeting of the Standing Committee on Justice and Human Rights. Before us is the continued debate and discussion on Bill C-10, an act to amend the Criminal Code on minimum penalties for offences involving firearms.
    We have the following witnesses before us today: from the Canadian Civil Liberties Association, Alexi Nicole Wood, the program safety project director, and Mr. Alan Borovoy, general counsel; from the Church Council on Justice and Corrections, Monsieur Laurent Champagne, the president; and from the John Howard Society of Canada, Mr. Graham Stewart, the executive director.
    I thank you all for being here.
    I will turn the floor over to the—

[Translation]

    Point of order, Mr. Chairman.
    At the last meeting we said we would be finishing earlier. I'd simply like to know how many minutes each member will have to ask questions. If there are fewer of us and there's a chance we may end earlier, I would like to know in what order we will be called on the speak.
    It would seem that the Liberal Party is holding a convention. The Liberal members will have to go. It's up to you to decide.

[English]

    Thank you, Mr. Petit, but I plan to stay until the end of the meeting at 5:30 to hear the witnesses who have come before us. I will not be able to get to my convention until tomorrow because this meeting wasn't moved, as was suggested earlier in the week. But thank you very much. At the last minute, it doesn't help much, and I would prefer to hear the evidence from the witnesses.

[Translation]

    Thank you.

[English]

    Thank you, Ms. Barnes, Mr. Petit. I do realize, too, that we have another Liberal member, and that's Mr. Bagnell, so I think we do have a full or close to full contingent at this time.
    Mr. Lee will be coming. He's just tied up at another meeting for fifteen minutes.
    Thank you for that.

[Translation]

    Mr. Chairman, will you be dealing with the motion on future business at the beginning or the end of the meeting? Could we not adopt it straightaway? That way it would be done.

[English]

    We will deal with it here eventually, Mr. Ménard.

[Translation]

    Not today?

[English]

    Not right at the moment, no.
    Who will be presenting for the Canadian Civil Liberties Association? Mr. Borovoy?
    I've got it down, sir. Thank you. The floor is yours.
     Thank you.
    I'm here on behalf of the Canadian Civil Liberties Association. To my immediate left is our project director of public safety, Alexi Wood.
    I have three points to make. The first is that mandatory minimum sentences are capable of producing very serious injustice. One of the most effective examples is the current plight of Saskatchewan farmer Robert Latimer. For ending the life of his severely disabled daughter, Mr. Latimer was charged with and convicted of second-degree murder. And for that, he drew the automatic sentence of life in jail with no chance for parole for ten years. What's particularly troubling about this case are the facts. As found by the judge, Mr. Latimer committed this deed to relieve what he saw as the unremitting, terrible pain his young daughter was suffering. In the judge's words, Mr. Latimer was motivated solely by his love and compassion for his little girl. As a result, the judge gave Mr. Latimer a constitutional exemption from the operation of the mandatory minimum and gave him a much lighter sentence. The other tryers of fact, the jury, recommended he be eligible for parole after one year. So those who were finding the facts, who heard all the evidence and saw all the witnesses, urged a course of leniency.
     Now, it isn't necessary to excuse mercy killing in general, or Robert Latimer in particular, in order to be outraged by the current punishment this man is suffering. Most second-degree murders are committed out of hate, greed, or at least selfishness. It is repugnant that a compassionate father who breaks the law out of love should suffer the same penalty as a malevolent robber who breaks the law out of greed. In the opinion of the Canadian Civil Liberties Association, this situation is nothing less than a national disgrace, and the culprit is mandatory minimum sentences that permit no flexibility, that rigidly impose a sentence regardless of whatever peculiar or particular circumstances may apply. That is the first case.
    I have another case to illustrate the nature of the injustices this is capable of producing. In 1994 the Ontario Court of Appeal reduced the jail sentence of a prisoner who had been convicted of discharging a firearm with intent to cause harm. They reduced this sentence from 12 months to six months because in the opinion of the court he had an exemplary record previously and he was acting in a situation of high stress that required split-second decision-making. The prisoner, it turns out, was a police officer. The person at whom he unloaded his firearm was a burglar he was chasing. He grazed his arm.

  (1540)  

     Now, if that man had come up for sentencing today, he would have to serve no less than four years. Thanks to the grace of Bill C-10, he could have to serve five years. I find it inconceivable that even the most ardent proponents of mandatory minimum sentences would wish that kind of outcome on that police officer.
    How does this happen? It's because simplistic solutions such as mandatory minimum sentences inevitably encounter complex reality, and you can't always make them fit. That's the reason why this is such an abomination.
    That's the first point. The next two points will run much more quickly.
    The second point is that even as mandatory minimums cause a lot of harm, they also produce virtually nothing for public safety. One of the reasons is probably quite obvious, and that is that, as studies have demonstrated, the greatest number of people in the public don't have the remotest idea what crimes are accompanied by what mandatory minimums.They simply don't know. The more you add to it with all the fancy tables—if you're convicted this many times, and that many times.... Whoever thinks that any member of the public is going to know this?
    How in the world is anything supposed to deter the commission of crime if the people it's supposed to deter don't know it exists? Small wonder that there is a wealth of literature that reaches the conclusion that these mandatory minimums do not contribute to public safety.
    The third and last point is that there are alternatives to mandatory minimums. If a judge imposes an excessively lenient sentence, there is recourse to appeal. And prosecutors have appealed, and courts of appeal have increased sentences in circumstances that warranted it. It has happened on a number of occasions; this is no secret.
     Consider the difference. If a sentence is too lenient, it's subject to appeal; if a mandatory minimum in a particular set of circumstances is too harsh, there's virtually nothing you can do about it, except perhaps pray. That is an unacceptable double standard in our justice system.
    The final point I would like to make about the alternative is that for those few crimes that are so horrendous it's inconceivable that they wouldn't be worthy of this mandatory minimum—such as murder, for example—one way to deal with them is by what we call a “presumptive minimum”. That is, you might provide—for murder, let's say—life in prison, but say presumptively “unless a court finds exceptional circumstances”. That signals to the court that this minimum should apply unless the circumstances are genuinely compelling.
    There's no reason to make it a conclusive mandatory that is so insensitive to peculiar differences in situations. There's simply no earthly reason to do it.

  (1545)  

     To sum up, Mr. Chairman, we say that mandatory minimums should not increase. Indeed, they should decrease, first, because they are capable of producing very serious injustice, and have; secondly, because they contribute virtually zilch to public safety; and thirdly, because there are viable alternatives to using them.
    All of which is, as always, respectfully submitted.
    Thank you.
    Thank you, sir.
    Mr. Stewart.
    Thank you, Mr. Chair. I'm pleased to be here again to speak to this particular legislation.
    The John Howard Society is a national charity comprising those who believe an essential component of community safety lies in social measures that serve to reintegrate those who have offended into the community as law-abiding citizens. We're located in 60 communities across Canada. Our mission is effective, just, and humane responses to the causes and consequences of crime.
    Crimes committed with guns are very serious. Even when no injury occurs, the potential for injury or death is high. The Criminal Code and the courts clearly take such offences very seriously now.
    It is not for the John Howard Society of Canada to propose what the sentences for gun crimes should be. It is our position that sentencing is an individual process that must reflect the specifics of the offence and the offender. The John Howard Society of Canada is making this submission in order to express its view regarding who should set the nature and quantum of a sentence and identify the principles on which those sentences should be based.
    In particular, the John Howard Society believes that the principles of sentencing found within the Criminal Code are substantially correct and give sufficient and appropriate guidance to the sentencing court. The sentencing courts, with reviews through appeal to the Supreme Court of Canada, are competent and the only bodies capable of establishing appropriate and just sentences within the principles established by Parliament. There is neither need nor benefit to be derived from imposing particularly severe sanctions on every case for gun crimes beyond those sanctions already imposed today. Data do not support the notion that gun crime rates are growing at alarming rates, except in very particular circumstances and locations. Research over many years shows conclusively that neither the deterrent nor incapacitative intentions of higher penalties are likely to have a significant or cost-effective impact on gun crime rates. And finally, the new expenditures associated with the proposed mandatory minimum sentences could be spent much more effectively to reduce crime generally, including gun crime, if directed towards preventative initiatives.
    Severe mandatory minimum sentences conflict with the most important principles of sentencing. Mandatory minimum sentences, particularly when they involve long periods of incarceration, are incompatible with the fundamental principles of sentencing as set out in section 718.1 of the Criminal Code, that being that “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
    Under Bill C-10, penalties could increasingly become arbitrary and excessive. Parliament cannot consider individual circumstances, and without such consideration, the penalty becomes arbitrary, particularly as the severity of the mandatory minimum penalty increases. This point is reflected by Chief Justice Beverley McLachlin when she said that “Absence of arbitrariness requires that punishment be tailored to the acts and circumstances of the individual offender.”
    Confidence in the justice and political system will decline. The Government of Canada should not take action that would promote and reinforce unfounded distrust of our judiciary. If the judicial system of courts and appeals cannot be trusted to give appropriate sentences within current principles and precedents, then it would be difficult to explain why they should be trusted in any other circumstances.
    Respect for the criminal justice system will never be achieved by measures that breed distrust of our judiciary. Measures that would eliminate the discretion of the court and replace it with one that is inherently arbitrary cannot generate public confidence in either the judicial or the political systems.
    Harsh penalties encourage greater recidivism. When the impact of Bill C-10 runs its course, the same number of gun offenders will be released each year from prison as is the case today. Having served longer sentences, those being released from our prisons will likely be much more difficult to reintegrate into society. We will have fewer resources to either prevent crime or rehabilitate offenders. They will be more likely to offend again.
    The introduction of new mandatory penalties will be increasingly difficult to control. If mandatory minimums work for one offence, why not all offences?

  (1550)  

     Thanks to the escalation in the use of mandatory minimums in the United States, they now have five to eight times the incarceration rate of any other western industrialized country. Canada has created a just and peaceful society. With an incarceration rate that is one-seventh that of the United States, we should be reluctant to adopt their approach to sentencing now.
    Discretion will shift from the judge to the crown or even the police. In a study for the Department of Justice, Thomas Gabor concluded:
There is no evidence that either discretion or disparities are reduced by...[mandatory minimum sentences]. While judicial discretion in the sentencing process is reduced (not removed), prosecutors play a more pivotal role as their charging decisions become critical.
    Canadian experience does not show that harsher penalties reduce crime. Because of our principles of sentencing primarily, Canada benefits from a substantially lower rate of imprisonment than the United States, where mandatory minimums have become common. This was not always the case.
    Looking back 30 years, the incarceration rate in Canada was at 90 per 100,000, as compared to the United States, which was 149. Today, the incarceration rate in Canada is 108, while the incarceration rate in the United States has soared to 750.
    One might expect that if incarceration prevented crime either through deterrence or incapacitation, these stark differences in incarceration rates would lead to very different crime patterns over time. In fact, this is not the case. Crime fluctuations in Canada and the U.S. have remained surprisingly similar. Property crime is about the same between the two countries, while serious violent and in particular gun crimes in the United States have remained consistently much higher than in Canada.
    The variation in gun crimes between cities in Canada is substantial. The fact that between and even within cities there are often huge differences between neighbourhoods in rates of gun crimes cannot be explained by the existence of tougher sentencing in the low-crime neighbourhoods.
    Most research does not support the effectiveness of mandatory minimum sentences. Academic studies that challenge the theory that harsh penalties reduce crime abound. A large-scale review of the United States experience with enhanced sentences for gun crimes involving data from nearly all states over a 16- to 24-year period concluded that several small-scale studies have suggested the laws might reduce some types of gun crimes. We found the laws produced such an impact in no more than a few states, and there is little evidence that the laws generally reduce crime or increase prison populations.
    Similar studies have occurred in Virginia and Florida, and in California the experience is interesting. Crime rates have moved in opposite directions between young and adult offenders, even though adults were subjected to severe mandatory minimum sentencing provisions and much higher levels of incarceration. With youth in California the opposite occurred. The incarceration rate and the crime rate of youth in California is the lowest it's been in 30 years.
    In Canada, a large meta-analysis of all valid research conducted over 50 years in North America that tested the impact of sentence length and recidivism found that the type of sanction did not produce decreases in recidivism. There was no differential effect of the type of sanction on juveniles, females, or minority groups. Thirdly, there were tentative indications that increasing lengths of incarceration were associated with slightly greater increases in recidivism.
    Canadian criminologists Antony Doob and Cheryl Webster published an exhaustive review of the international literature over several decades. They concluded that harsher punishments do not deter crime.
Deterrence-based sentencing makes false promises to the community. As long as the public believes that crime can be deterred by legislatures or judges through harsh sentences, there is no need to consider other approaches to crime reduction.
    Trends with gun crimes in Canada do not support the need for harsher punishments. Data produced by the Department of Justice in January 2006 show startling and presumably reassuring trends, including the fact that the homicide rate in Canada dropped between 1974 and 2004 by 25%, while firearm homicides dropped even further during that period, with a drop of 54%.

  (1555)  

     Firearms used in robbery dropped 53% between 1974 and 2004, and dramatic declines in virtually all violent crimes were recorded over the last 15 years, with a combined drop of 60%.
    While these changes are dramatic and positive, very recent data from Statistics Canada shows that in the last two years there's been an increase in gun-related homicides in a few major centres. As troubling as this may be, these changes can not be explained by different sentencing practices in those centres and are unlikely to be addressed through sentencing measures.
    In conclusion, all of the above gives rise to the conclusions articulated in our submission that principled sentencing can not be achieved through severe and arbitrary mandatory minimums proposed by Bill C-10. Neither does the evidence suggest that such measures will reduce gun-related criminal activity.
    Thank you.
    Thank you, Mr. Stewart.
    Mr. Champagne.

[Translation]

    Hello, my name is Laurent Champagne and I am the President of the Church Council on Justice and Corrections. I also work for Correctional Services of Canada, as an institutional chaplain at the Leclerc facility and at the Aumônerie communautaire de Montréal, as a coordinator. I work with some 15 partners.
    Although we share the government's concern with ensuring the safety of Canadians, we would however like to point out that harsher sentences have no deterrent effect on offenders and no effect on recidivism. The American experience has been eloquent on this point. Mandatory minimums would only serve to provide Canadians with a false sense of security, because sentence length and decreased crime rates are independent variables. There is no causal relationship between the two. We would like to remind you that there has been a drop in the crime rate in Canada, based on a Statistics Canada study.
    Bill C-10 would also hamper the social reintegration of offenders. Excessively long incarceration may jeopardize an offender's chances at a successful rehabilitation, because it is crucial to allow offenders to re-enter society when they are prepared to take this step in the process. If offenders remain in custody despite that, their chances at reintegration may be compromised.
    Finally, we are very concerned by the possible effect Bill C-10 may have, in particular on the Canadian criminal justice system. This bill undermines one of the basic tenets of our legal system, the principle of the individualization of sentences. This principle allows for the consideration of multiple factors and for an in-depth assessment which serve in the determination of a fair and appropriate sentence, based on individual needs.
    Moreover, this bill strikes a serious blow to judges in terms of the trust they are granted. By eliminating judicial discretion in sentencing, the government is removing some of the judiciary's discretionary tools. However, are judges not in the best position to decide on a fair and appropriate sentence and to assess an offender's ability at social reintegration?
    The Church Council of Justice and Corrections of Quebec's mission is to promote preventive and restorative justice, based on Christian values, by working with legislators, offenders, victims, communities and society through research activity and support for groups and individuals in their quest for growth.
    With respect to legislators, we work with provincial and federal governments.
    With respect to offenders, our work centres on all forms of support to individuals, be they accused or not, detained or formerly detained.
    Victims play a very important role. This overlooked group of individuals deserves special attention if we want to ensure full offender reintegration.
    The community is defined as individuals living within a specific area who share an awareness of situations of conflict. These individuals are aware of their own value and of a social responsibility to recognize the facts.
    When it comes to society, we wish to mobilize a variety of political forces and their power to address the issue of globalization in order to promote the spirit and the letter of preventive and restorative justice.

  (1600)  

    This year, Correctional Services of Canada celebrated Restorative Justice Week. We discussed innovative partnerships and strong cooperation. It is on this basis that the Church Council on Justice and Corrections works with its various partners.
    I had an opportunity to live in Latin America as a missionary for 15 years, and I can say that Canada is a peaceful and safe country compared to many others. We are proud of this peace and of this safety. However, the growing indignation in society about the effects of crime are concerning to all of us. We have witnessed the suffering felt by so many victims of crime. We feel compelled to seek out a justice system which treats crime in an honest and fair manner, and which contributes to healing individuals, families and society as a whole. Fear and indignation undermine our collective well-being and social fabric.
    The growth in the prison population indicates that incarceration is too often regarded as the solution to social and criminal problems. Although it is important to recognize the genuine need to protect ourselves from certain offenders who represent an immediate risk to society, we must also admit that incarceration as a punishment is a costly and exacting type of justice which is clearly ineffective as a deterrent. The rate of recidivism is also a sign of incomplete healing and rehabilitation among offenders. Victims' needs for healing and safety are not being met. To address these issues, overly simplistic measures based solely on the desire to appear tough on crime will not lead to the desired results, because our society as a whole cannot heal until offenders, victims and society in general experience healing.
    Our current justice system as it is applied does not work. Suffering and fear continue to grow. We believe that the search for genuine and satisfying justice will forever be linked to the spiritual growth of the individuals involved. Conversely, over-incarceration, which is so typical of a vengeful spirit and repressive mentality only harden the soul of this country.
    Under the amendments proposed pursuant to Bill C-10, the following situation could occur. A person carrying a loaded long gun like a hunting rifle commits a robbery in a convenience store, for instance. He has a long criminal record which includes many previous firearms-related guilty pleas. Under section 344(1)(a.1) he would be punishable by a mandatory minimum sentence of four years.
    Another person commits a robbery under similar circumstances, but carries an unloaded handgun. It is a first offence and the person has no criminal record. In this case the offender would receive a mandatory minimum sentence of five years, under section 344(1)(a). The same provision would apply if instead of robbery, the offence was sexual assault, kidnapping, hostage taking or extortion.
    This proves that the length of mandatory minimum sentences under the bill depends on the legal status of the firearm in question rather than on the actual danger to the public caused by the offence. An unloaded handgun is considered more serious than a loaded long gun, shotgun or hunting rifle, regardless of the actual circumstances of the crime or of the offender's actions, the actual harm caused or any victim-related considerations.
    The specific technical details of this bill would add insult to injury by maintaining mandatory minimum sentences in Canada long after the 1987 Canadian Sentencing Commission, and all other commissions having considered the matter over the last 50 years, recommended abolishing all mandatory minimum sentences—fines and custodial sentences—for all offences, except murder and high treason. These grounds are all well documented, as you must know, and this basic criticism has remained unchanged.
    When judges must contend with mandatory minimum sentences, they cannot consider the context within which an offence was committed, in other words the seriousness of the crime and the situation the person who committed it was in, in order to consequently mitigate the sentence. As highlighted in the commission's report, mandatory minimum sentences can lead to cruel and unusual punishment, arbitrary imprisonment and serious concerns with respect to liability during the legal process. Under mandatory minimum sentences,
[...] discretion would not be exercised as overtly and would be transferred from judges to crown prosecutors and the police. The Crown would not exercise its discretion to decide which charge would be considered in a public hearing, but rather it would do so unilaterally, through plea bargaining which only judges are privy to, and of which the public are largely unaware.
    This was a quote from Mr. Renate Mohr, criminal lawyer and former president of the Church Council on Justice and Corrections in Quebec.

  (1605)  

    Lastly, those sentences pose yet another significant problem, in that they are against the principle of using imprisonment as little as possible, a principle to which the Church Council has been committed for a long time.
    Last week, I took part in a conference entitled "What works in the Community Reintegration of High-Risk Offenders." I have today brought those elements I considered most significant. Victims and offenders worked together on the conference, in an effort to work together to achieve community reintegration.
    Thank you.

[English]

     Thank you, Mr. Champagne.
    Ms. Barnes.

  (1610)  

    Thank you very much.
    As I have only seven minutes, I'll try to give short questions to different people.
    I know that most of the witnesses today have had occasion to review some of the empirical studies done in this area, so who would like to confirm that 25 U.S. states have gone backwards, that 25 U.S. states that had mandatory minimum sentences have now repealed them and moved away? Who would like to confirm that fact for me, please?
    It has been reported in various sources, including Julian Roberts' study for the Department of Justice, that 25 states have modified or partially repealed some of their mandatory minimum penalties.
    Thank you very much.
    Who at the end of the table can think back to the 1987 study done here in Canada with judges who felt that the use of mandatory minimum sentences for the purpose of deterrence impinged their ability to give a just sentence? Who would like to confirm that?
    Yes, that study was done in the early eighties, and in that study only 9% of the trial judges indicated that mandatory minimums never affected their ability to impose a just sentence. So the converse of that would arguably be true, which is that 91% of judges felt that at least some of the time their ability to impose a just sentence was being affected by a mandatory minimum.
    This study was repeated in a 2001 article by Anthony Doob. I believe he is appearing before the committee, so I'm sure he will be able to provide additional information.
     All three of you have brought up the idea of the sentencing principles currently enshrined, since 1995, in the Criminal Code.
     What I found interesting and you may find interesting is that a little earlier in our process here, the RCMP sent witnesses, whose statement at that time—contrary to the probable perception of all RCMP—was that it was important to have the individual facts and situations of the offender, and who acknowledged in response to a question from me that this would be taken away with mandatory minimum sentences. So I don't think we should lump all of the enforcement bodies as being as supportive of this legislation as may be presented by some other parties.
    I also want to get down to the particulars of the legislation, because, Mr. Champagne, you have mentioned the anomaly, I think, of the bill having sections in it that treat the firearm used, whether it's loaded or not, as having a different.... I cannot get a rational explanation for that from any party, but that's not the only thing that's anomalous in this legislation.
    Ms. Wood, I presume you have read the act itself that's been presented here. There was a situation that was brought to our attention last week: that if a prosecutor has a number of charges and proceeds in a different order, under this legislation your mandatory minimum situation could be increased by up to two years, in some situations. Could you confirm that?
    Yes, I would agree with that statement. When you look at the way the bill is drafted, such that you have a selection of different offences from which you can proceed, and the sentences vary according to whether it's a first offence, a second offence, and so on, then yes, you are going to have that opportunity to change how the sentencing would happen, based on how the Crown chooses to proceed.
    I'd also like to confirm what my friend here was saying about the mandatory minimum depending upon what type of gun is being used, or whether or not a gun is being used at all. Bill C-10 ups the mandatory minimums that were already present in the Criminal Code for when a firearm is used. But if a machete, for example, were being used, there is no mandatory minimum for several of the offences, as my friend was illustrating during his comments.
    The other thing is prosecutorial discretion, which is not visible to the public, as a judge would be in a courtroom in sentencing. Here in Bill C-10 right now, there are a number of hybrid offences that are noted. If the Crown proceeds by way of summary conviction, as opposed to indictable, then there are mandatory minimums coming into play.
    Mr. Borovoy, go ahead and tell me what you think of the prosecutorial discretion.

  (1615)  

    As a matter of fact, what your point reminds me of is the comment that was made by the study done for the justice department when they said that juries may well be less willing to convict when the offence at issue contains a mandatory minimum. That's part of the problem: that it has such a distorting effect on the way justice is administered.
    Incidentally, another one of the interesting findings of that survey that was done of judges a number of years ago is that about 95% of them said mandatory minimums lead to inappropriate plea bargaining at least some of the time. That's another example of how this distorts the justice system.
    Mr. Stewart, a lot of people are being led to believe that higher mandatory minimums or higher incarceration rates will be the deterrence factor, but could you give me some knowledge about police presence on the ground as a deterrence factor, in contrast to mandatory minimum sentences?
    It has been well established in literature that the likelihood of apprehension is an important factor. I think that is borne out both in experience and in the data.
    On the other hand, the notion that the penalty itself will be a deterrent is borne out neither by the literature, in my view, nor by my experience. I have been working in prisons for 38 years and I can't remember ever a circumstance where a person said that, given that the mandatory minimum was four years, he thought it was worth it, but now that it's going to be five years, there's no way he's going to consider that offence.
    I haven't known anyone who knew what the mandatory was and I have had no one who ever gave any indication that it was part of his thinking. So I find the literature in fact confirms the actual experience that I've seen in the prisons.
     Thank you, Ms. Barnes.
    Monsieur Ménard.

[Translation]

    Thank you very much.
    I imagine that my colleagues on both sides of the table will agree that this is truly a high calibre panel, providing mostly new information, and providing an excellent balance between science and a humane approach.
    Mr. Petit, St. Thomas said that virtue lies in moderation. You studied the classics, I believe, and you will no doubt remember that.
    First of all, I will address my remarks to Mr. Champagne. You are quite right in reminding us of the Archambault Commission's remark that the principles which must prevail in sentence determination, whistleblowing, rehabilitation and deterrence—to name but a few of the most important—include rehabilitation.
    I will take advantage of the fact that you are a chaplain and frequently—if not every day, certainly very frequently—encounter people who have committed crimes. I presume some of those crimes are fairly serious.
    How can an individual become rehabilitated? What connection is there between individual rehabilitation and monitoring, or supervision? In fact, the Canadian correctional system does not allow us to leave individuals unmonitored, even when they are on mandatory release.
    Why is it important that we have rehabilitation programs? Has your day-to-day experience led you to have confidence in people's ability to change? How can the programs help them achieve that goal?
    Many inmates do want to get out and will do anything to achieve that. They try to find solutions, find people with whom they can make some progress. It is a mistake to tell them they are useless and worthless.
    One fundamental aspect of this is that our current correctional system often does not take the victim into account, any more than it does the offender, because the Crown deals with them. Counsel for the defence and the crown prosecutor come to an agreement.
    Experience has shown that those who undergo an unfortunate event together need one another to heal, but this is not something we can do on a large scale. We cannot transform all penitentiaries. When it comes to mediation, many, many victims and prisoners apply so that they can meet and try to deal with the issue.

  (1620)  

    Are you the same Laurent Champagne who wrote a book on violence several years ago?
    No, I am not.
    The book was not on violence, but against violence. Thank you for your explanations.
    Sometimes, we simply have to act and send people behind bars. Sometimes, the appropriate penalty is indeed imprisonment. We are not so naive as to believe there are no such cases. However, when it comes to determining sentences, the more we see the system attempting to seek maximum sentences, the more we become convinced that the deterrent power of minimum sentences has no scientific foundation. I think there is a good consensus here. At least among the opposition parties. The clerk, who is one of the most competent clerks of the House, sent us translated briefs every day that only confirmed that view.
    The scientific literature does not support sentences. Do you understand the situation in which we, as lawmakers, find ourselves? Our government is asking us to pass legislation which runs counter to all probative and conclusive data available.
    I found you to be very eloquent in your reasoning, and I will ask you the same thing again. Please explain why the scientific literature shows that we, as lawmakers, should not adopt a bill which is poorly drafted, poorly designed, and should not survive committee examination.

[English]

     I'm not sure I adequately understood your question, but I'm going to try.
    Do I understand you're asking why scientific literature does not provide more support for this kind of legislation? It's probably because it doesn't exist. That's my best guess.
    The studies have been done again and again and again, and while it's true there have been a handful of studies that appear to go the other way, in virtually every case there's something else that explains it.
    For example, in the United States what happened is that they noticed in some cases that the crime rates were falling after the imposition of mandatory minimum sentences, but when they looked a little more carefully, they noticed that they had started to fall well before the mandatory minimums were adopted. Thus the level of violent crime was simply on the decline at that time, for a variety of reasons. It's virtually impossible to attribute that fall, though, to the existence of mandatory minimums.
    So I think the best answer to your question is that it simply doesn't exist.
    Ms. Wood wants to add something.
    Yes, if there's time; it's just to add to what Mr. Borovoy already said.

[Translation]

    First of all, please allow us to express our apologies. We did submit a brief, but as it was Monday we did not have time to have it translated. We do have copies, but they are in English only. I know that the clerk—
    The clerk will have the brief translated.
    Yes. We do apologize for this.
    A voice: English is one of the two official languages.

[English]

    Ms. Alexi Wood: In our brief we cite several of the studies: one that was already mentioned by my friend, by Doob and Webster; there's another one, Doob and Cesaroni; there are several by Julian Roberts. There are several that are cited in our brief as well.
    In addition, when this law was originally discussed, the Minister of Justice referred to four states in particular that had had mandatory minimums that had been successful. Despite written requests from our office to his office, we're not sure exactly which studies he referred to, especially in the case of New York.
    In the Virginia study, there were actually three different things that had happened in Virginia, so it would be very difficult to pinpoint that mandatory minimums themselves were responsible for the reduction in crime. As I said, there were three different elements.
    In Florida, for example, the legislative summary that was distributed actually concedes that there's no evidence that crimes were reduced by the efforts taken in Florida.
    So even some of the statements that have been made saying these four states were successful once they implemented mandatory minimums are questionable.

  (1625)  

    Thank you.
    Monsieur Petit, vous aurez sept minutes.

[Translation]

    Thank you.
    First of all, Mr. Champagne, Mr. Stewart, Ms. Wood and Mr. Borovoy, thank you for coming here today.
    First of all, I will make a brief preamble because there is something I want to understand clearly. Mr. Stewart, you tabled a French document that I have here with me. It contains graphs. One of those graphs supports your position, which is that people who are unemployed commit more crimes, or rather, more robberies.
    I come from Quebec, where the unemployment rate is approximately 10% on average. That amounts to some 388,000 unemployed. We also have some 500,000 people on social assistance, because those people no longer receive employment insurance benefits. We have a manpower shortage of 17% to 18%, more or less. In Newfoundland and Labrador and New Brunswick, it's even higher than in Quebec, and you seem to be saying that in my province, Quebec, people are more likely to commit crimes, at least according to your study. Your study establishes a link between unemployment and violent crime.
    I have been practising in Quebec for 35 years, and I do look at statistics because we have to plead sentences. God only knows how often we have to do that. So first of all, I can assure you that your link does not hold. It does not hold for Newfoundland and Labrador, because it is not true there are more criminals because there are more unemployed. That is not true.
    However, I do have a question for you. In Alberta, people are rich, as they are in Ontario. They are richer than the people of Quebec, the people of Newfoundland and Labrador, and the people of New Brunswick. However, Alberta and Ontario have the highest numbers of criminals.
    How do you explain that there is a higher number of robberies in a rich province, when you are trying to tell us that poor people in the poorer provinces are those who commit the most crimes? Your reasoning does not hold water. I would like to know why there are more criminals committing robberies with firearms in the rich provinces, and fewer in the poorer provinces.
    I would like to hear your answer, Mr. Stewart.

[English]

    With respect, that's not what the chart shows. What the chart shows is changes in unemployment rate and changes in robbery. What we're saying is, regardless of where you are in Canada, regardless of the overall wealth, where you see changes in unemployment rates you see—in fact, very quickly following—changes in robbery.
    This is data that was produced by Statistics Canada. The point of putting it here is to show that factors such as these have a very clear and dramatic parallel—between these two factors—whereas you cannot find any similar parallel with sentencing.
    I was not suggesting that unemployment was the sole cause of crime, however; it's much more complex than that. Within given communities, there are all sorts of other factors that can compensate for things such as unemployment. For instance, disparity of income appears to be far more important than rates of income. But overall, when you look at the trends, there seems to be a correlation between the two.

[Translation]

    I understand. However, since you have tabled this brief—which I will have to read—and the graph, it is because you are trying to draw some conclusions from it. According to the graph, when unemployment goes up... In Quebec, average unemployment has been almost 10% in the past 40 years. And there are huge numbers of people on welfare. In Quebec as a whole, that's about 680,000 people, and you are trying to tell me there is a connection here.
    If there is no such connection, why did you attach this graph? Was it to persuade us of something? I live in Quebec and I can tell you that connection is not there. Forget about it.
    So I would like to know why you have attached this graph. What are you trying to tell us, since you are not seeking to arrive at some conclusion?

  (1630)  

[English]

    What I was saying was that your interpretation of the chart was wrong, not that the chart was wrong. I was trying to illustrate that other factors can explain variations of crime much better than sentencing. What I was saying, for instance, with this chart and the previous chart, was that you cannot explain the variations in crime across Canada by sentencing policy. The fact that violence can be very high in one area and very low in another is not something you can attribute to differences in policing, differences in courts, differences in prisons, or differences in sentencing.
     In Canada, we have a single federal Criminal Code. We have very similar policing structures and abilities. If you're going to say, for instance, that in one community, such as Regina, over a ten-year period you saw a 50% increase in violent crime, whereas in another, such as St. John's, you saw a 50% decrease in the same period, clearly that's not attributable to sentencing.
    Similarly, variations in important economic conditions, such as rates of unemployment, do produce changes in terms of crime that you cannot identify.... You cannot find similar data anywhere that shows that changes in sentencing policy would do the same.
    My point was that if you want to do something about serious violent crime, work on the problems that actually will produce results. Endlessly playing with sentencing will simply not do it. There's just no evidence that it will achieve that goal.

[Translation]

    Mr. Petit, you have the floor. You have two minutes.
    Mr. Stewart, I would like to draw your attention to the graph I submitted to the committee. I cannot tell you on what page this is, since the pages are not numbered. This comes under Figure 3. I will read what you have written so that I can put it on the record. Please listen carefully to what you are telling me, and telling the committee:
The correlation between an important economic indicator like unemployment with robbery is compelling. Taken together, data such as these make a convincing of case for initiatives that tackle the strongest factors that determine crime rates—social conditions. If the intention of Bill C-10 is to reduce gun crime, then it is clearly not addressing those factors that actually give rise to gun crimes and cannot be successful.
    I will put the question again, because what you are saying is not true. In Quebec, the unemployment rate is higher than anywhere else in Canada, and has been for the past 40 years. We have wall-to-wall welfare cases, and that contradicts your statement. So I would like to know why you made that statement. Is it to influence our work here, or is it a genuine observation?

[English]

     This is not my chart. This is Statistics Canada. If they produced false data, then I guess we should ask them.
    You keep saying this is a direct relationship between unemployment and crime. What the chart is showing is that differences in unemployment seem to correlate very strongly with differences in robbery. These are the two parallels. The point of the chart was to show that variances in social conditions can explain variances in crime quite effectively, while there is no similar chart that anyone can produce that would show similar variations in sentencing affecting variations in crime.
     My point was a very simple one, and this is only illustrative of one of many factors that could be contributing to crime. If we want to reduce crime and are very serious about it, are we going to put all our attention and effort into measures for which there is no evidence of their having any impact, or are we going to concentrate our efforts on those factors that appear to have a strong correlation?
    Thank you, Monsieur Petit.
    Mr. Stewart, at the end of the previous intervention of Monsieur Ménard, you seemed to indicate you wanted to add something. If it is a short response, you could do it now.
    Thank you very much.
    The question asked why there does not seem to be conclusive evidence about the deterrent effect of sentencing.
    I was going to make the point that I've been appearing these committees for many years, and it seems that almost every time I've appeared, the questions have been the same: what is the perfect punishment? What number is going to make the difference?
    It's my conclusion that the sentence is largely irrelevant. For most people, there are very many good reasons not to commit crimes. I'm not going to leave here and steal a car. It's not because I'm worried about going to jail; it's not because I'm worried about the penalties. It's about the environment, the values you're in, and the circumstances.
     My point was simply that in the end, if we want to understand crime and what might affect it, we have to get beyond the notion that the only reason certain people commit crimes is that they haven't been punished enough. It's a very simple equation, which is largely irrelevant. There are other factors, as I've just discussed, that are far more important.

  (1635)  

    Thank you for that.
    Mr. Bagnell is next, for five minutes.
    Thank you all for coming; we really appreciate it.
    You should be thankful Myron Thompson is not here.
    I particularly appreciated your testimony, Graham, because you're one person who has worked with prisoners for a long time. We have the academics and people who have brief interaction with them, but you've worked with them for a long time, and that's very important to me and increases the importance of your testimony. I was surprised you talked about all the scientific evidence when you have the on-the-ground evidence.
    I'd like to say that if Mr. Borovoy and Mr. Stewart made their speeches in Parliament, I can't imagine that anyone would vote for this bill. I wish you were in Parliament.
    Mr. Borovoy, I'm not a lawyer. On the technical points of the constitutional exemption in the Latimer case, can you tell me if that exemption would be available for people if this particular bill should pass? Could they be exempted from these harsh and unusual punishments, unusual cases, by that exemption?
    The answer is theoretically yes. The problem is it's a very high threshold to cross. Despite what is often said about the activism of judges, the judges in fact have exercised considerable restraint. In many situations they have taken the position that they think the particular punishment is inappropriate, but they are reluctant to say it's unconstitutional, even in particular sets of circumstances.
     I think the answer has to come down to yes, it's theoretically possible to secure a constitutional exemption with the mandatory minimums, but as a practical matter it will happen so rarely that it is not worth considering as a way out.
     Okay. That's good.
    As parliamentarians, we have to make our decisions based on fact and science and evidence, and that's mostly what we talked about today. I'm glad you all quoted the studies that studied all the other studies, so that it's not just one individual, it's a comprehensive review. The witnesses all to date have suggested that a comprehensive review shows that these don't work, shows that there's no deterrent value, and the evidence is quite clear.
    But we had a witness--just so we leave no stone unturned--in the last meeting, Professor Lee, from Carleton, and he quoted a Dr. Steven Levitt from Chicago. One of the quotes--I won't quote them all--said, “The evidence linking increased punishment to lower crime rates is very strong.”
    That's exactly opposite of what you said, Mr. Stewart.
    Yes, the Levitt study was—
    I'm wondering if anyone would like to comment on that.
    I would, and Alexi may as well.
    Yes, as we've said, there are some studies that claim that there's a relationship. Most of the literature that says this is in fact done by economists, not by criminologists.
    The primary study, for instance, that one should be talking about is one of those cases in which the study was produced that showed data on every other year rather than every year, and on the basis of that concluded that there was a sharp and immediate decline in crime in California immediately after severe punishments were introduced for certain crimes.
    What Canadian researchers Tony Doob--who will be here next week, and answer this question far better than I--and Cheryl Webster did was re-create the data and found that when you inserted the missing years the decline in the crime rate started well before the introduction of the legislation.
    The problem we have is that there's been, from a statistical point of view, a long and sustained decrease in crime throughout North America, indeed around the world, for the last 20 years, and during that period of time everybody who's done anything claims that what they did is responsible. So we have endless, usually small studies by given states or jurisdictions, or claims by politicians who brought in a particular bill that they brought in this bill and now we're seeing this decline.
    The only way to really understand the phenomenon is to understand it in the context of the overall decreasing crime rates that have taken place over the last ten years. And when you do that, you find almost inevitably that the declines people are claiming their bill was responsible for in fact were preceded by declines that were already in place.

  (1640)  

    If I might add on to that, I believe the researcher to whom you're referring is referred to in the Doob and Webster article that is cited in our materials.
    Doob and Webster spent about three pages explaining why Levitt's conclusions are inaccurate and misleading. Doob and Webster claim that he also ignores a large body of the evidence.
    I'm quoting from the article:
Levitt's review focuses largely on only two studies--both his own (Kessler and Levitt 1999 and Levitt 1998)--as evidence “for a deterrent effect of increases in expected punishment”. (2002, p.445). In addition, two other studies are cited in which offenders were interviewed. However, this latter research relates more to individual deterrence than to general deterrence.
    He goes on to say that Levitt is remarkably selective in the literature that he cites and then how, for the sake of completeness, he needs to elaborate on the evidence that Levitt has cited.
    So I would draw the committee's attention to this article and to the analysis presented by Professor Doob.
    If I were to give—
    That's five minutes.
    I just have one point of order.
    A point of order, okay.
    If I were to give you each—
    Which you would make to the chair, of course.
    To the chair.
    Mr. Chair, if I were to give this document to the two groups, would they be willing to respond to the committee? Because it's the only one that suggested otherwise to the rest of the evidence.
    Yes, the clerk would be happy, if it was in both official languages, to make it available to the witnesses.
    And if you could respond to the committee, if you're interested, that would be great. This is from Professor Lee.
    We'll give them some time to read it.
    Now I'm going to go to Monsieur Lemay, pour cinq minutes.

[Translation]

    I have five minutes to talk about an issue as important as this.

[English]

    If I could, just on two little points of order—
    I know Mr. Bagnell made a point earlier about our colleague Mr. Thompson, and the point that I don't think Mr. Bagnell had a chance to get to was that Mr. Thompson is almost all of the time here with us at the committee.
    And the second point I wanted to make was that Monsieur Ménard has advised the chair that he does not intend to move the motion that is shown on our agenda today.
     I respect Mr. Art Hanger. He is sick, and I want to make sure that when we discuss it he will be here.
    That may assist some members in planning the next few hours. Thank you.
    Monsieur Lemay.

[Translation]

    Thank you for being here today. I read your briefs with a great deal of attention. They are very informative, as were your remarks.
    I was a criminal lawyer for 25 years. Unfortunately, Mr. Champagne, some of my clients are in your establishment.

  (1645)  

    No doubt they are.
    Unfortunately.

[English]

    There's no causal relationship.

[Translation]

    No, there is no cause-and-effect relationship.
    Everyone has difficult periods in their lives.
    They were under [Editor's Note: Inaudible].
    No, my colleague Mr. Petit made a statement I do not agree with, and I wanted to talk to you about it before putting my questions.
    It concerns the statistics in the brief by the John Howard Society of Canada, regarding the correlation between unemployment and robberies committed between 1962 and 2000, the figures you reported. The statistics should be examined more closely before that correlation can be assumed. Nineteen eighty to 1983, as it happens, were the years in which the number of robberies was highest and in which the unemployment rate was also very high. Unless we were living on another planet, we all know what happened in Canada during that time. The number of robberies was also high between 1989 and 1992, and 1993, and perhaps in 1994 as well.
    We also had to be living on another planet to claim that unemployment insurance is the only factor at play here. You are quite right in saying that when the economy is doing well, crime rates drop. However, the economy is only one of the factors that need to be taken into account.
    I am putting this question to any of you who might wish to answer. I have not heard much about the impact Bill C-10 might have on the increase—and I am choosing that word carefully—in racial prejudice we find in our prisons.
    I am talking about penitentiaries, because it is penitentiaries I know about. In fact, I even met with you at the Leclerc detention centre.
    You met with me as a lawyer.
    As a lawyer, obviously. I had some important meetings there.
    A voice: Did you take Father Gravel with you?
    No, I did not bring anyone with me. Mr. Champagne was there. Mr. Ménard, I did not meet you there.
    Nonetheless, I would like to hear what you have to say about the current situation in Toronto: there are very strong ethnic groups, Blacks, Jamaicans, and so on, but that's not the point. I do not want to discuss street gangs; I want to stay away from that topic. With this bill, aboriginals might well invade our prisons. I do not really like the term "invade", but I use it anyway.
    Do you agree with me? Do you think that this bill might have a serious impact on the ethnic fabric of Canada as a country and Quebec as a nation?
    That you belong to.
    That we belong to, in a united Canada.
    I hope I did not confuse you too much, as some have done during these past three days.
    I put this question to Mr. Stewart or to Mr. Champagne. Thank you.

[English]

     I have a couple of comments about that.
    It seems clear from other jurisdictions where they've used mandatory minimums that minorities are largely overrepresented in the group that gets captured. The very nature of mandatory minimums is that it doesn't set the sentence, it just sets the minimum sentence. Very serious cases would get those penalties regardless. The only people who are affected by mandatory minimums are those who have extenuating circumstances that mitigate in the offence. The reasonable person thinks technically this is a very serious crime, but a lot of factors go on here that make this severe penalty unworkable.
    Often the factors that can contribute are the circumstances of a person's life and the environment they're living in. If they're living in very difficult circumstances the potential is there, and the potential for there to be some mitigating factors is there as well, so those people are going to be captured. It's the cases we often can't even think of that have these mitigating factors that end up being subject to the effect of the bill, not the most serious ones.
    At the same time, it's worth looking at other jurisdictions, and particularly Australia, and what studies there found. Australia repealed some of their mandatory minimums because the impact was so disproportionate it really shocked the conscience of the country. Both data and logic tell us that when you take the thinking out of the process, when you ignore the person, when you sentence the crime rather than the offender, you will end up with disproportionate sentencing according to particular minority groups.

[Translation]

    Mr. Champagne.
    In fact, I concur with Mr. Stewart. In Canada, we know that 19% of inmates are aboriginals persons. This is a worrisome situation because the aboriginal community does not even account for 19% of the population.
    This means that they have a much higher imprisonment rate, and we can be sure that a bill like C-10 will make things worse. Moreover, it will have a tremendous influence on the repression of street gangs in large urban centres like Montreal. We will have to build many more penitentiaries all over Canada if we want to jail all these people. It would be so simple—too simple, perhaps—if we stopped crime at its source through preventive measures. We should invest more in such measures. Often, this is under provincial jurisdiction and there are disputes among regions.
    A voice: Among nations.
     Mr. Laurent Champagne: Among nations, excuse me.

  (1650)  

    Thank you.

[English]

    Mr. Kramp, for five minutes.
     Thank you, Mr. Chair.
    This issue was previously dealt with in a different form with a private member's bill, which I initiated, on minimum mandatory sentencing for criminal offences for serious indictable offences. I would recommend that the minutes of that committee hearing be brought forward to this committee for evaluation, because there were some wonderful arguments put forward by folks such as yourselves and the other side. And some amendments were put forward that to me made a balanced argument.
    What I'm hearing today really dismays me, because it's one side of the coin. Nowhere here today have I heard the word “victim”. Yes, there was an occasion when, good sir, you said there were some victims who wanted to meet the offender. I can assure you that there are many occasions when victims do not want to meet the offender, when victims have been absolutely victimized. And we have an obligation as well.... Our major obligation as parliamentarians is for the health and safety and protection of Canadian society. Somewhere in here, that has to strike a chord.
    And I do agree with Mr. Borovoy in a number of areas, when he's suggesting this is not the sole solution. I agree, minimum mandatory sentences are not the sole solution.
    Our rehabilitation, Mr. Champagne, I agree is a shambles; it's a disgrace in our institutions. We do not have proper rehabilitation procedures and/or focus or emphasis. We could do so many more things with prevention, with social demand, with addressing poverty, whatever. But we also have to realize that there is a form of penalty that can be an effective deterrent.
     Mr. Borovoy, I'm going to go to the point you mentioned that is crucial to this argument. Minimum mandatory sentences have worked on many occasions, and I can document many jurisdictions that have not been brought forward here today and provide such documentation to this committee. But they only have worked when the public is aware, when there has been a massive public relations exercise, so the criminal is aware that there will be repercussions. Without that, Mr. Stewart has mentioned, no one really gives a hoot, and they don't really know, because that's not a concern of theirs.
    Where there has been a massive public relations exercise along with the other measures, such as the minimum mandatory sentence, there have been demonstrable results. And I offer for your perusal...our clerk brought forward one study as well, regarding Detroit, where there was a 10% per month reduction. Project Exile in Virginia was mentioned. I was there. My kids were in university in Virginia when Project Exile came in. In two years, there was a 40% drop in murders. That is significant. That is not one or two or three or four or five. You're talking 500 and 600 people per year, where that had a demonstrated effect. You have the 10-20-life law in Florida, where there was a 28% drop.
    You're talking about your figures before and after, and by the time you merged them it was already on a slide and on a grade. There's a difference between a drop of one percent, two percent, three percent all of a sudden after a “minimum mandatory” coming in, and dropping 23% and 24% and 25%. So I think that argument, quite honestly, is bogus. If you take a look at those figures, then I'd love to see your sliding scale. Because I offer documentary evidence to this committee, criminal statistics. From the Florida department of corrections, I offer information before, after, and during the dates that these were imposed, that are compelling.
    We have an obligation. You're suggesting that minimum mandatory sentences seem to have no effect. Yet we have demonstrated proof in a number of regions where they have, where it's been done effectively, properly, such as Virginia, such as Florida, such as Detroit, such as Pennsylvania, where it's documented.

  (1655)  

     We've had evidence before this committee previously from the Association of Chiefs of Police of Canada and the professional police association of Canada, representing 74,000 men and women across the country; they unanimously endorse the demanding need for this type of activity. Are they all wrong?
    Yes.
    They are all wrong--every police officer in Canada. I can assure you, sir--have you ever looked down the barrel of a gun from the wrong way?
    Mr. Kramp, you've asked a series of questions, including whether the witness has ever looked down a gun barrel the wrong way. Could you leave that all as a question, or would you care to put the question now?
    Maybe I'll just give you the one question.
    Are all these other witnesses here wrong, including Tony War, the deputy police chief for the municipality of the GTA, who provided his statistics verifying and supporting all of this information? All these police chiefs, all these police members, all of these people who documented, all the witnesses who appeared before the committee--are they all wrong, 100% wrong? That's what you're saying.
    Clearly the statistics can be very confusing. You note that in Virginia there was a decrease in crime after a particular law was brought in place in a particular set of years. We also had the same reduction of crime in Canada. It wasn't because of what happened in Virginia.
    Did we have a 40% reduction in murders in Canada? We did not, sir. You are wrong.
    We have. We've had it since 1964. We've had 30% in murder and we've had 60% in violent crime overall in the last 15 years in Canada, according to the justice department that presented this data to you.
    The point is that we're in declining situations, and everyone takes credit. It's much more complicated. You've got experts coming; I'm not an expert on this, but I can tell you that just as you can find some scientists who say that global warming doesn't exist, you've got all sorts of issues for which someone can come up with a study, and even perfectly good and very expert studies will sometimes show the phenomena going the other way.
    What would you suggest for our victims, then?
    Mr. Kramp, excuse me; there is some sense around the table that we should allow the witness and the witnesses to proceed with their answers. Thank you.
    Mr. Stewart, if you haven't finished, you may; Mr. Borovoy would like to intervene as well.
    In relation to that, this is not a debate between pro-crime people and anti-crime people. What we're talking about here is finding the most effective way to reduce crime. I think that in terms of criminal justice there's far more we can do to prevent future crimes than we can do to end past crimes. We're past that.
    What we're talking about here is a bill that you've presented. It's not a victims bill; it's a punishment bill, no doubt with the intention that it would reduce future victimization. Our point is that when you look at the cost associated with it, and the minimal effect, there are far more important ways in which we could be addressing circumstances in the community to reduce future victimization. In that sense, I think that's all we're talking about--victimization--but this is a punishment bill, and the assumption that punishment is directly related to criminal activity is what I'm challenging.
    Mr. Borovoy, do you have anything to add?
     Thank you.
    In a way, Mr. Kramp, you're using a “big brother” argument. You're saying, “My big brother, the cops, say this.” We're pointing to the social scientists. Of course, unless we can come in here with the studies and you do likewise and we can sit and go point by point, all we're going to do is throw buckets at each other and not accomplish as much as we should.
    Yes, we have cited the most comprehensive reviews of the literature to say that those police officers are mistaken in reaching the conclusion they have reached, because their examination of the evidence is rather superficial and isn't sufficiently comprehensive. But let me, in the interest.... It's the old labour conciliator in me, and I want to try something with you.
    Suppose for the sake of argument we were to say “If you want to have some such punishment, instead of making it conclusively mandatory, how about a presumptive minimum sentence?” It says, in effect, that it isn't the case that it will always be subject to that penalty. What it's saying is that this is a signal to the judges that the legislators in this country think this crime ought to attract that penalty, but if you can find sufficiently compelling circumstances not to impose it, you're entitled to not impose it.
    I suggest this to you. We can go back to argue about the statistics; with respect, I think you're wrong about them. But is there any reason on this earth to reject a presumptive minimum rather than a compulsory or conclusive minimum?
    I want to lace it in one way. I don't know if you recall my original testimony here. It seems as if it was in another century.

  (1700)  

    I recall.
    Thank you. I can barely recall it myself.
    But what I remember from it is that I cited to you the case of this police officer chasing a burglar, whose arm he grazed with his gun. The Court of Appeal in Ontario reduced his sentence from twelve months to six months. I know your format doesn't allow us to ask you questions....
    I wish it would.
    All right, I will ask you the question. Would you be pleased to have that police officer locked up for five years? That's what Bill C-10 would require.
    While I'm at it, do you have no objection at all to the fact that Robert Latimer continues to languish in jail for a crime committed out of love and compassion for his little girl?
    I'd be pleased to respond.
    Now, I'm not in a position to alter our questioning format, unless there's a consensus around the table to—
    No, I'd like my time.

[Translation]

    I think that we should give the gentleman two minutes, should we not?

[English]

    I'm in the hands of the committee.
    I think this is a precedent, Mr. Chair.
    No, I don't think it is, Ms. Barnes. If there is consensus, we can do it. Shall we...?
    How long has it been so far?
    We're on minute 12.
    We're at 12 minutes? We have other people who are waiting as well.
    Well, consider the question put, and we'll move on.
    Actually, it's Mr. Moore, for five minutes.
    That's for the past five minutes.
    Yes, I agree.
    Thank you to all the witnesses.
    I have several questions, but one quick question. If you can, give a quick answer.
     Based on your testimony, I'm led to believe this might be the case, but I'll let you answer for yourself. As you know, we currently have mandatory minimum penalties for some firearms offences—some one-year penalties, some four-year penalties. Would it be each of your submissions that those penalties should be eliminated, or do you find any of the existing mandatory minimums reasonable?
     I'm opposed to the notion of mandatory minimums. I'm not opposed to principles being articulated, and I'm not opposed to Parliament setting some guidelines, but our society is opposed to the notion of a rigid mandatory minimum sentencing regardless. Our view is that the existing mandatory minimums have never been tested, and they've never been studied. There's no reason to believe that they've made any difference and that then topping them up would improve the circumstances now.

  (1705)  

    Okay. Anybody else care to...?
    I would gladly eliminate them.
     In the case of such offences as murder, if I had my druthers, it would be subject to a presumptive minimum. That is, it would draw a life sentence, unless a court found a sufficiently compelling set of circumstances to rule otherwise.
    Thank you for that.
    I think Mr. Champagne was the only witness who mentioned victims in his testimony. That is telling to me, because I know the concern, which came certainly from my perspective and that of others, was that we wanted to make sure that we have fewer victims in the future. I've heard compelling testimony from other witnesses suggesting that this bill would help do that.
    No one has ever suggested that this bill is the whole package. There are other things that have to be done. We have to address other causes for crime and do what we can when it comes to prevention. We have to do what we can when it comes to resources, having police on the streets—and we've provided for that.
    But I note that all around this table, with the exception of the Bloc, with the NDP and the Liberals in the last election, we all campaigned on a commitment for increasing mandatory minimum sentences for gun crimes.
    Not me.
    Your party did, Sue. Did you run as a Liberal? I think you did. All Liberals ran on a platform of increasing mandatory minimum sentences. Whether they want to distance themselves from that now, this was their platform, and I noted that.
    We heard testimony from Chief Blair of the Toronto police force who said that when they focused on one community in particular, where there were high rates of gun crime, and got a small number of recidivist offenders—guys who were out there committing crimes with handguns—off the streets, the homicide rate went from an extremely high level to virtual elimination. They had one homicide a year in that community, compared to 24 before, I believe. I'm not sure of the exact numbers, but it was a phenomenal drop.
    That's part of what this bill does. It has increasing penalties for recidivists. We don't try to smash the person who has a first offence, and you mentioned the case of a police officer in the heat of the pursuit having an incident such as that.
    What this bill clearly focuses on is gang crimes committed with handguns. This is the problem that's plaguing our streets. It says that if you do that once, you're going to be subject to a mandatory minimum. If you do it again, it's an increased sentence. So it's focused.
    I'd also like to ask, what do you say to the evidence put forward by the chief of police that said when you take a small number of offenders—and I'm not talking right now about rehabilitation, which is very important and a goal we all have—they're off the streets and in jail? They're not on the streets of Toronto or other cities committing crimes. What I'm talking about is protecting society. What do you say to that?
    I'd say two things. First I would say that the impact of the police in Toronto was done with the existing laws that didn't require new mandatory minimums, and clearly by having a greater presence and tackling the problem head on. They were probably having some impact, both in terms of arresting people and sentencing them under the current laws, which are not trivial.
    The second point was that the high murder rate in Toronto, which you mentioned, was a spike. It wasn't a trend. It was very clear that it grew out of a set of circumstances that were well known in Toronto, and it was absolutely predictable that when the murder rates spiked up, they would drop precipitously. So once again, everybody who does anything at that peak gets the credit. But the circumstances related to those communities were pretty predictable, and in fact we see that from time to time in different communities.

  (1710)  

     Thank you for that point.
    Your comments glossed over something rather important when you talked about recidivism and what that would attract under Bill C-10. You somehow managed to exclude the police officer I was talking about from the sweep of Bill C-10. I'm suggesting to you that if that officer were convicted today--first offence, good record, committed while he's chasing a fleeing burglar--he would have to go away under Bill C-10 for at least five years.
    I will have to put my question to you in the same way I put it to Mr. Kramp. Whether it's responded to here or in the next life, I don't know, but suffice it to ask you whether you would be pleased to see that officer mandatorily jailed for five years.
    There's something else—
    I don't want to use up all my time; I have other questions I want to ask.
    I'm responding to something you said, and that's why I wondered if I could.
    You and Mr. Kramp have made much of the fact that we haven't explicitly used the word “victims” in our presentation.
    It's telling.
    I would suggest to you that the inference you draw from that is quite misconceived. If we did not explicitly use the word “victims” when we talked about the social science evidence that the mandatory minimums do not contribute to public safety, I would suggest to you that this necessarily implies victims. That's what public safety is about, and we of course addressed the issue of victims.
    Thank you.
    Do I have time left?
    We're at eight minutes. Those were interesting dialogues, Mr. Moore. Interesting questions get interesting answers. We do have four witnesses here today, and regrettably the five minutes goes quickly. We do have more time in the meeting, so if we move to other questioners, we're going to have time for more questions.
     I'll go to Ms. Barnes. Mr. Moore, if you want to go back on the list, that's fine.
    Thank you.
    I noted in the spring and I asked the minister twice about the Levitt study, because that was the case he cited as evidence. Anybody who has read all summer long all of the criminology reports.... There's been more than one, and I'd suggest that members opposite in the government that cited that study should start taking a look at all the criticisms of the Levitt study. I will definitely ask our minister about that, because Doob and Cesaroni's study was very comprehensive. It canvassed the numerous pieces that came out, attacking the methodology, among other things. I'm not going to take all of my time, but I would have thought that the justice department would have given that to the government, and I'm sure they did. Whether they read it or not, I don't know.
    The next point I want to make is to Mr. Stewart. You had talked in response to a question from my Bloc colleague about proportionality and sentencing. You were talking about disproportionate incarceration in the Australian study, and I did want to point out and make it for the record that it was disproportionate not to the individual sentences, but disproportionate in that it found that it affected aboriginal peoples in that country. That wasn't made clearly enough on the record.
    Yes, you're quite right. That's what it was about.
    Thank you very much.
    The idea that only one party--I think for partisan reasons--aligns itself to public safety and victims is just not accurate. The point I'd like to make is that when you send the message about public safety being just sentencing, really what you are doing is making it less safe in the end. The reason is that only the aspect of having somebody locked up for that incapacitation element on sentencing accomplishes that, but everything else, all the evidence that I have come across--and I have spent months researching this--says that you are actually being deceptive, because there will be less public safety in the end. If I am absolutely wrong on this, I'd like to hear it, because I will tell you quite frankly that personally I would be in favour of a lot of mandatory minimum sentences if I could find some empirical data that they worked for public safety. The opposite is not occurring, and that is why I will take my personal position and my party position.
    Whoever would like to comment, please go ahead. I will probably only have a real five minutes, so please contain your answer in that time.

  (1715)  

     There's just one point I'd like to make. Serious crime—violent crime—produces two reactions. One is fear and the other's anger. Mandatory minimums address anger very well, and to the degree to which people want the justice system to address the frustration and anger they feel, arbitrary and harsh penalties work well. But if we're looking beyond that and want to do something that actually reduces the risks to the community, we have to be more dispassionate about it.
    We're all concerned about reducing crime. The question is, what is the best way to use the resources we have as a country to minimize the potential for people to be victimized? To do that, I think we have to be analytical; we have to look at the research. Subjective experience isn't really worth very much, because you just can't put it into perspective.
    In that sense, that's our view. We don't want to see more crime. We don't want to see offenders commit more crime, partly because we don't want to see victims, and secondly, because we don't want to see offenders ruin their lives. There are no winners with crime. It's in everybody's interest that the measures we take be effective.
    I know we're short on time, so I will be brief.
    Like you, I would like to see some evidence that these measures were actually effective. It would be nice to know that in all the states that have passed these laws they were actually doing something positive. But the evidence just isn't there. Like you, I have spent most of this summer researching, and my team under me has been researching, trying to go through the information provided.
    The first thing we did was go to the states that were mentioned by the Minister of Justice. As I said before, despite contact with his office.... We wrote to him and we said, “Can you tell us what studies you're talking about, because we can't find them. If you have studies that show the other way, sir, I would love to see them.”
    I've spent months trying to find them and wrote to the Minister of Justice asking him to show me these studies. The ones we have been able to find clearly support what you are saying: that mandatory minimums do not, in and of themselves, actually reduce crime.
    They seem as if they would be a nice answer. They seem easy in a way, but they're not actually doing anything to reduce crime.
    When I hear the reasons of people who are saying, “This is why we want to introduce mandatory minimums: we want to have mandatory minimums to prevent crime, to protect victims, to stop gun violence”, they are great objectives, absolutely. I don't think anyone would stand here and say they are bad objectives.
    I spend a lot of time in high schools teaching as part of my job, and I have three questions that I tell the kids to use whenever they're looking into any rule, whether it's a school rule or a national law. The first question is, why? Okay, we have our why. The second question is, does it work? And here, I'm afraid, no, the evidence I've seen is it doesn't work. And the third question is, what else does it do? And here, as my colleague has said, there are so many other things of what else it does. We'd have that officer locked up for five years, which I'm sure nobody would support.
    In addition, it seems almost that it would be an excuse: “We've passed these mandatory minimums; we've done what we need to do.” No. The mandatory minimums are not going to reduce crimes. The evidence just simply isn't there that they're going to be reducing crimes.
    In addition, my final point, if we look at the whys you have presented; if we look at why you want to pass these bills, I can find absolutely no reason why our suggestion of a presumptive mandatory minimum doesn't achieve your objective. If your objective is to do all of the things you've said, then I can't understand why a presumptive mandatory minimum suggestion wouldn't fly, because it would achieve what you've been saying, and then it would also alleviate some of the bad effects that have happened, such as the Latimer case, such as this case that we have found with this one officer. Yes, they may be few and far between, but they exist.
    Thank you.
    Mr. Kramp, you have five minutes.

  (1720)  

    Could I just correct—
    It'd be very tough to get something in now—
    It's technical.
    —with Mr. Kramp waiting to ask his questions.
    Well, Mr. Kramp had seven extra minutes to my real five minutes, so I think he should be a little sharing here.
    I just wanted to address this “presumptive” recommendation, because we also got recommendations from the Criminal Lawyers' Association about ways to narrow this. I want to put on the record that it is very difficult, when a bill comes to us after second reading and there's not an element of discretion in it, to introduce another element in any recommendation.
    Essentially, even if the government were prone to accept it, they would have to go back to their cabinet and their process, get their cabinet to agree, and then bring it in as a government amendment. I doubt that this is going to happen, and for us as an opposition party to be able to amend it.... It's going to be ruled out of order.
    I just want to lay that on the record so that people don't take away any false sense, because that's the black and white situation.
     It's okay with us if they go back to the drawing board.
    Oh, sure. That would be fine with me.
    Okay. We'll go to Mr. Kramp, who probably has his own set of questions.
    Thank you, Mr. Chair.
    Just referring to the information, I would be delighted to share it with you. The simplest point, of course, would be that it is available in the records of the minutes here, in the 38th Parliament before this justice committee. I think there were four or five different, separate studies that were put in that were conclusive, from their perspective. I probably have copies of those in my office, so I would be delighted to share them with you.
    I can envision a lengthy correspondence being precipitated.
    That would be fine.
    I would like to dispel a perception from my guests, if there appeared to be a hostility toward your position versus the government's position of defending the rights of the victims among the Canadian population.
    It goes through to what I perceive as minimum mandatory penalties serving a real purpose. The purpose was not for an incarcerating, “hang 'em high” kind of approach. There are two reasons that are absolutely clear and crystal, and they have been demonstrated to deliver results.
    One of course is for those nefarious individuals, and there are some bad characters—and this is certainly not the entire population of criminals, because there are criminals by happenstance as well.... Those who are nefarious need to be put away for a longer period of time for the public safety and the public protection. This absolutely does guarantee that kind of public protection.
    But the other main point—the main purpose—of minimum mandatory sentences is to act as an effective deterrent. This goes back to the point of presumption. While I recognize your point of presumption, and I think it is a very valid and good argument, my point would be this. Would it serve as that effective deterrent if it were presumptive rather than mandatory? I am asking for your opinion on that.
    I think the answer to that has to be sure it would, because you would know—assuming that potential criminals would know about it, and of course I have great doubts about whether they know any of this, but assuming they did—that the presumptive minimum signals to the judge that he or she is to apply that minimum unless there are special circumstances.
    You see, you immediately envelop it, if you like, with the aura of something different.
    Fine, and I can recognize that. But on the other hand, from the criminal's perspective, all of a sudden it opens up that door to “maybe...”, “what if...?”, “where can I go with the legal argument on this?” It does not make it clearly defined, so it possibly does not serve as a deterrent under that form.
    I can tell you, as a former police officer, many times on many occasions I have dealt with many people like this. To suggest that they are not aware of the law; to suggest that criminals don't care what kind of penalty they get...I don't buy that. I don't buy it for one moment.
    There are many occasions when criminals would be very cautious as to what they do and how they will do it for fear of embracing—
    Mr. Kramp, there have been scientific surveys in which people were polled and asked, and they found that the overwhelming majority of the public did not know. The fact that you may have some anecdotal evidence here or there that somebody knew doesn't reply to the comprehensive surveys that were done that showed that hardly any of them knew.

  (1725)  

    Thank you; you're making my argument. My argument can be that we haven't done it well, haven't done it properly. If we're going to impose minimum mandatories, it has to be done with a massive public awareness, public knowledge, so that it can effectively act as a deterrent. Otherwise it simply serves the purpose of protection.
     We at least have to give you full marks for an ingenious, if not a valid, argument.
    May I speak to that?
    Even when the penalties are well known, there is very little reason to believe there is deterrence. This is one point where I may disagree with my friend Alan Borovoy, and no doubt I'll pay for it afterwards, but I don't believe that whether there is an exemption or not will make the slightest bit of difference to whether it's a deterrent.
    We are not talking about a circumstance where either there's a penalty or there's not a penalty. We're talking about variations in severe penalties.
    I can tell you, two weeks in jail is a pretty good deterrent from my perspective. I've spent enough time in prisons to know that I don't want to be there overnight. Two years is a good reason. Four years is a good reason. The loss of your life and your income in your community.... There are all sorts of good reasons not to commit crime.
     Okay, I understand your argument and where you're going with this, but might I just offer one thing—
    Mr. Kramp, the style here is sort of evolving into a debate, and it's a very interesting debate, but the format we usually try to stick to is the question and answer.
    Okay, my apologies. I'm not trying to be argumentative, by any means. I'm just trying to make a point.
    And I don't want to cast aspersions on anybody's style around here, because we all have different styles. Everything's been going fine; I'm just trying to keep us to the five-minute windows, and we're—
    Mr. Kramp: Could I have 30 seconds?
    The Vice-Chair (Mr. Derek Lee): No, we're at six minutes now. Out of that time I used up 30 seconds of your time.
    I have indications from Mr. Bagnell and Mr. Moore, so given that we're pretty close to the end of our time period, I'm going to allow Mr. Bagnell to ask one question, and he will probably....
    Well, you can make a point or ask a question, probably not both. The same holds for Mr. Moore.
     Mr. Bagnell. I'll terminate this in about two minutes.
    Thank you.
    I would just like to say, so that you don't get the wrong impression about the police, that the Toronto policeman was very comprehensive. He talked about the root causes of crime on the front page of the Toronto paper, and all sorts of other things that need to be done.
    And I'd be happy to get Mr. Kramp's evidence, but just for the record, we've not had any evidence to date to this committee except Levitt, which you have refuted, that suggests that they work at all; that there's any deterrent—any scientific evidence, which is what we have to base....
    So the position the witnesses and the opposition are taking is much more protection for the victims, much more protection for society, based on the evidence to date, and I'll look forward to your refutation of Levitt. What we all want is safety for society.
    Just to conclude, Mr. Stewart, you said that recidivism is not decreased by mandatory minimums; in fact, it could be increased. Therefore—all these people are going to get out—there is going to be a less safe society for victims, and for the rest of Canadians. That's a conclusion from all these hearings, and I just want to get your opinion on it.
    To the degree to which there's evidence—it's not very strong evidence, but it is significant evidence—it would be reduced by....
     Professor Paul Gendreau of St. Thomas University shows the degree to which there's a correlation. The correlation is that longer time spent in prison increases recidivism. The notion is that prison is a school for crime. It tends to reinforce anti-social values. It tends to disengage the person from community supports and responsibilities that actually support making them more likely to succeed.
    But I could also say that we spent last week—“we” being those in criminal justice—at a major conference here in Ottawa sponsored by Public Safety and Emergency Preparedness Canada on what works with the reintegration of high-risk offenders. And we're talking about high risk here; we're not talking about the average federal prisoner, even.
    I would just say that in the two days of that conference there was no one who ever suggested that sentencing was a solution. There's no one who ever suggested that imprisonment had achieved anything.
    At the same time, there was all sorts of evidence presented, time and again, of studies and programs that had actually reduced reoffending by very serious offenders by 50%.
    We have the potential to do things that make a real difference and have a real impact on real people. My whole argument is, we have to make a choice. Let's put our resources into the things for which there's solid evidence that something works.

  (1730)  

    Okay, that's two and a half minutes.
    I'll go to Mr. Moore for a question or a comment.
    That's fine.
    Well, then, seeing no further, I want to thank the witnesses very much—Mr. Champagne, Mr. Stewart, Ms. Wood, and Mr. Borovoy—for your evidence here today. It's been very helpful to us in our deliberations. Thank you for attending.
    Colleagues, we're adjourned into next week.