The Association québécoise des avocats et avocates de la défense is a not-for-profit association composed of 600 criminal defence lawyers practising throughout all regions of Quebec. Our members include private practice lawyers as well as those working for the Commission des services juridiques. I have had the honour of serving as president of the association since June 2005. I have been practising mainly in the field of criminal law for almost 15 years now.
First off, the AQAAD would like to thank the committee for this invitation to appear. I hope my remarks will be useful to you in the course of your deliberations.
It seems troubling to read the May 1, 2006, press release that states the objective of these new dispositions. It says that mandatory minimum penalties will ensure that sentencing is proportionate to the seriousness of the offence that involves guns and gang violence.
The aim is obviously a direct attack on judicial discretion. It is my belief and experience that judges in Canada are currently imposing just and proportional sentences. Furthermore, the concern with gang-related offences is already the object of a specific sentencing provision of the Criminal Code, namely subparagraph 718.2(a)(iv). It is considered an aggravating factor on sentence that an offence is committed for the benefit of, or under the direction or association with, a criminal organization.
The AQAAD is in agreement with the statement found in the legislative summary of : “Mandatory minimum terms of imprisonment are generally inconsistent with the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, as they do not allow a judge to make any exception in an appropriate case.” It is generally recognized as a principle, and is borne out by my experience as a defence attorney, that the deterrent effect is triggered by the fear of being apprehended rather than by the existence of harsh sentences.
The Canadian crime rate does not require these legislative changes. The American example has served as an eloquent example of the ineffectiveness of such measures.
Moreover, the new wave of bills your committee has dealt with and those it will be considering, such as Bill , and reverse onus for dangerous offenders, to name but two, may have a domino effect. We would like to draw this to your attention because we believe it is a possibility you should consider. Allow me to explain: the combined effect of these measures will have a direct impact on the justice system's ability to deal with cases within a reasonable timeframe, as provided under the charter.
These provisions will also effectively short-circuit the case settlement process. At the moment, as a general rule, approximately 90% of criminal charges are resolved through guilty pleas, and a number of these guilty pleas are accompanied by joint submissions. These figures may drastically change as a result of so many legislative amendments. Consequently, the number of individuals in pre-trial detention will increase, thereby increasing the burden on provincial resources.
We must remember that under sentencing in Canada, if the crown finds a sentence too lenient, it is always at liberty to appeal. Conversely, this same right would be denied under mandatory minimum sentences when the defence believed that given the circumstances of the offence and the offender, a sentence was clearly too harsh.
We consider that these legislative amendments are not necessary, and feel that they will have a significant negative effect on the criminal justice system. Finally, as an alternative—and I repeat, as an alternative—if the committee were to come to the conclusion that the proposed sentences may be useful as guidelines, we would suggest an amendment to section 718.3 of the Criminal Code, an amendment calling for residual judicial discretion. Under special circumstances and when it is in the interest of the community and of the accused, judges could exercise their discretion at the time of sentencing.
I thank you and I am now prepared to answer any questions you may have.
Hello. I thank the committee for having invited me to appear.
My name is Jean-Paul Brodeur and I am a professor at the University of Montreal. I am also director of the International Centre of Comparative Criminology. From 1984 to 1987, I was the director of research for the Canadian Sentencing Commission.
I'll just say a few words about myself. I am a teacher at the University of Montreal, the director of a research centre, and I was director of research for the Canadian Sentencing Commission, which issued its report in 1987. So I have an abiding interest in sentencing.
You will be hearing arguments from many people. For one, you just heard representations from a lawyer. Some witnesses may also provide you with very detailed statistical analyses. That is not what I intend to do here today.
I want to address one question. I'll make some general comments, but my question is the following. One rationale for having a harsher penalty is to deter people from committing violent offences and offences with weapons. The question I'm going to address is whether people are susceptible to being deterred by such measures. That will be my main argument. Before saying so, I will make some general comments.
I have two general comments.
Take, for example, the studies that have been done on the deterrence effect. Do harsher penalties usually act as a deterrent? We might say that these studies cancel one another; in some cases, the outcome is positive, while other studies say that it is not. The results over time have been consistent. The deterrence effect, as observed for the past 30 years, has been modest and not everyone agrees with the theory that a harsher sentence will lead to a lower crime rate. The best example is, of course, the death penalty. American states that apply the death penalty don't necessarily have a lower murder rate.
Here is my second point. When the Canadian Sentencing Commission tabled its report, in 1987, it spoke out quite vigorously against minimum sentences. There were few remaining at that time; one of them was important: the seven-year minimum sentence for importing or exporting drugs. In 1987 the Supreme Court, in Smith v. R., overturned the seven-year minimum sentence citing various reasons and likening a seven-year minimum sentence, to cruel and unusual punishment.
This bill provides for minimum sentences of 7 and 10 years, respectively, for repeat offenders. Will these sentences meet the Charter and Supreme Court test? I am not at all sure of that.
I want to move to my main argument. Number one, is this bill of law necessary? It states that its objective is to increase the safety of Canadians. And here I just want to remind you that in December 2005 there was actually a paper--it was a whole book published by StatsCan--and it was a survey of Canadians, asking them whether they felt safe in Canada. There were four kinds of answers: very much so; I feel safe; not so much; and I do not feel at all safe.
I want to stress the fact that from 1988 to 2004, the number of people who answered that they felt very safe or safe grew from 88% to a fairly astonishing 94% in 2004. So that's a very high level of safety that is enjoyed by our citizens. Of course, one can always point to a shooting or to these incidents which are more than regrettable, and which should be denounced, and so forth and so on, but is it necessary to make legislation on the basis of the single scandalous incidents that are given a lot of spin by the media? I'm not sure.
I will now move on to my main point. Basically, the bill is about punishment and deterrence.
Will the people for whom this bill is intended, namely, those who use firearms or who commit violent crimes, be deterred from committing those offences?
I would like to advance three arguments to demonstrate that any deterrent effect would be slight.
At our centre we have research specialists who study the use of narcotics and drugs. They have found that 57% of murders are committed by people who are under the influence of drugs or alcohol consumed just before, or sometimes while committing the crime. The rate for attempted murder is 58%; for assault, 69%; for abduction, 54%; for sex-related offences, 44%. The statistics are the same for robbery. About 60% of those who commit these offences do so under the influence of alcohol or narcotics. Therefore, increasing the minimum sentence by one year will not act as much of a deterrent for them.
I myself have studied homicides; I have a data bank of about 153 homicide cases. Of the 153 cases, 71% were solved in less than 24 hours. I would like to stress that fact, because it means that many homicides are the result of a spontaneous criminal act, something done on the spur of the moment by way of, as we call it in our jargon, acting out. Once again, the bill would do little to deter this type of crime.
I would like to bring one final thing to your attention, something that surprised us. We questioned some young people who occasionally dealt drugs. We asked them if they were armed when engaging in such activities. We found that 32% of the drop-outs carried a weapon. Moreover, 55% of those who were charged under the Young Offenders Act carried either a firearm, a knife or some type of weapon. For those who were younger, the rate was 17%.
This is what it all means. The act may apply to youth, but it is more significant for gang members and those who engage in organized crime. These people find themselves, to a certain extent, between two types of threat: on the one hand, there is the law which tells them that if they commit the crime, they will be arrested and charged, and given a minimum sentence which, in some cases, can be rather long; on the other hand, the type of activity in which they are engaged requires that they carry a weapon.
These people are involved in dangerous transactions and often feel that they need a gun to protect themselves from assault. I am not saying that they are justified in doing so; I simply want to point out that the deterrent effect of these sentences is, to a great extent, neutralized by what they consider to be a necessity: the fact that they must be armed in order to conduct their business.
In closing, with respect to the security that Canadians enjoy, even though sensational incidents do occur, I see no real reason for this legislation. I don't think that it will reduce the rate of violent crimes or offences committed with weapons.
Rather, it could aggravate the situation in three ways.
First, by facilitating the arbitrary nature of plea bargaining, since, in many cases, the Crown has a choice between a summary conviction or invoking an indictable offence.
Secondly, as has already been mentioned, if we avoid the arbitrary and enforce the law in a mechanical way, then in all likelihood, proportionality will not be respected and the discretion of the judges will be unduly restricted.
Finally, one thing is certain, this act will lead to an increase in the prison population. We know that increasing the number of inmates is always a given, but is never part of the solution.
While the criminal justice section supports measures to address violent crime rates, such a call to action must be acted upon using only measures that are both fair and effective. This section opposes the use of mandatory minimum penalties. Any action must proceed only if it is likely to achieve the goal of public safety and is at the same time consistent with what I'll call the three Cs: charter, common law, and Criminal Code--specifically, the principles of sentencing. We oppose the use of mandatory minimum sentences because they limit a judge's ability to fashion an appropriate sentence and they distort sentencing principles established by the Criminal Code.
Now, let me start with the judge's ability to craft a just sentence. You've had, I think, criticism in the past before this committee about the “one size fits all” approach. As someone who is 6'8", I can tell you that's not always the case.
Our section has faith in the judiciary, who are charged with the often difficult task of weighing a number of considerations when imposing a just sentence. They are guided by both common law principles, the charter, and again, the principles of sentence as outlined in the code. But let me go further. They're in the unique position of being able to address the just punishment not only based on the principles of sentence, but also taking into account the specific circumstances of an offender, the circumstances of the offence, and the particular community of the offender and the victim.
In addition, given Canada's track record of over-incarceration of aboriginal peoples, section 718.2 was a tool put in place to require judges to look at such options when sentencing aboriginal offenders. The bill would have the effect of taking away such a requirement and would amplify the current problems of over-incarceration of aboriginals. If a particular offence warrants a lengthy penalty, the sentencing judge already has the tools to impose the appropriate sentence. It is our section's experience that gun crimes already receive lengthy sentences.
has the potential to distort a number of sentencing principles. One of those principles is proportionality--that is, that a sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. Bill C-10 would set the floor of sentencing for all offenders, even those whose degree of responsibility is towards the lower end of the spectrum.
The Criminal Code also recognizes the principle of restraint--that is, that we restrain ourselves from jailing an offender unless it's necessary to protect the public. As outlined in our written submission, and as I present to you today, the criminal justice section believes that mandatory minimum sentences do not advance the goal of deterrence.
Other goals of sentencing, particularly denunciation and rehabilitation, are also principles a judge must consider. In the indiscriminate application of mandatory minimum sentences for all offenders, a judge is limited in fashioning a rehabilitative sentence for an offender who would benefit from such a disposition.
Now, it's also our opinion that would not improve justice efficiencies and would most likely lead to lengthy delays within the criminal justice system; more trials, given the higher stakes; higher incarceration rates; and more jails. This obviously all comes at a higher cost to the public.
Clause 9 of the bill would create two new offences: breaking and entering to steal a firearm, and robbery to steal a firearm. While theft of firearms already constitutes an aggravating factor on sentence, what the proposed amendment would likely do is create another hurdle for crown prosecutors to prove. To prove that the accused specifically intended to steal firearms would require very compelling evidence of intent, which often isn't the case unless there is an admissible statement by the accused or co-accused.
Now, another aspect of the bill that our section submits is a problem is the sheer complexity of its provisions in calculating the applicable sentence. I have read with great interest background information before appearing in front of you today. The debates have, I believe, illustrated this point. It is not just my inherent inability at doing simple math that is the source of the confusion, but the scheme itself, which in our opinion lacks cohesion and is just outright complex. If our section had difficulty in winding through the maze, imagine what it would be for those individuals we want to send a message to.
Now, our section wants to also bring to your attention a very real phenomenon that is actually occurring already, whereby sentencing discretion is being transferred to the Crown. When an accused is facing a mandatory minimum sentence, the negotiations between Crown and defence cease to become plea bargains; rather, they're charge bargains.
Let's say an individual is charged with discharging a firearm with intent. The Crown will agree to reduce the charge in exchange for the accused's pleading guilty, thus securing a conviction, while at the same time allowing the accused to avoid jail time. However, the charge bargaining process relies on Crown discretion. While meaning no disrespect to prosecutors, an accused is more likely to buy into a process that has as its pillar an independent arbiter exercising discretion rather than a representative of Her Majesty.
The second problem is that such a process dilutes the intention of things like the present legislation, instead of being tough on crime, as an accused comes out of the process with not only a potential lesser sentence, but a lesser offence. Eliminating mandatory minimums may very well have the effect of such an accused receiving the appropriate sentence, but still within the framework of the charge as originally laid.
Our section urges this committee to reject this bill. While the bill strives to achieve the goal of protection of society, a goal we share, it does so in a manner that won't have the intended effect and will lead to injustices.
Thank you very much.
We'll both be presenting, but I'll lead off.
The Mennonite Central Committee of Canada is the relief, development, and peace-building arm of the Mennonite and Brethren in Christ churches in Canada. In the area of justice, we have a long history of programs that work with victims, programs that work with offenders, and programs that bring the two together in dialogue. We thank you for inviting us here today.
MCC envisions a criminal justice system where human realities are taken into account. Communities play a strong role in addressing justice, and a variety of alternatives exist to ensure that victim needs are met, that offenders take responsibility and have the opportunity for rehabilitation, and that harm is repaired.
This vision conflicts in several ways with . Taking into account the human realities of guns and gangs calls for a much broader response than the sentencing provisions proposed here; however, even these provisions cause us some concern. As we have already heard today, mandatory minimums reduce judicial discretion, which is important for responding to human realities and creating community alternatives.
Additionally, the increased use of incarceration has undesirable affects. It limits opportunities for victims to receive restitution and other forms of restoration. As crowding becomes a problem, incarceration limits opportunities for offenders to leave jail with more life skills than they went in with.
Longer sentences create greater difficulties for successful integration into community life. Increased use of incarceration leads to these negative effects, while at the same time it has no positive effect on reducing the crime rate.
Today we'd like to speak to you of our own experience with deterrence and community safety, both strong themes in the justification of . In previous appearances before this committee, we have talked to you about our program of circles of support and accountability; today we're going to elaborate on that experience.
Sooner or later, the majority of incarcerated individuals return to our communities. Many offenders are returning to communities in which there are few, if any, community supports in place, or are resuming community contacts that are part of their offending history. Both of these scenarios escalate the risk of reoffending. Past victims feel unsafe, and the potential for new victims is escalated.
The challenge for governments, police, and the community is how to integrate people into society while at the same time managing the risk of reoffence. We're all affected by crime. We've handed over our safety to our police services and other government agencies. We've come to believe that there's nothing we can do to protect ourselves and that our best option is to lock people up for as long as possible. Our communities are living in fear but have not been given the tools to help them address their fears in helpful and safe ways.
We at MCC believe that communities need and have the ability to participate in keeping themselves safe. Circles of support and accountability originated as a faith-based response to a crisis. Twelve years ago, a high-profile, high-needs sexual offender deemed at 99% risk to reoffend within the first year was released into the city of Hamilton. Small groups of individuals formed a circle around him, to both support him and hold him accountable for choices and behaviours. Fully aware of his offending history and his offence cycle, this group of men and women were committed to the concept of “no more victims”. Shortly after that, another individual was released to Toronto, and the concept of circles began to take shape.
Each released offender or core member in our circles project is encircled by three to four community members and a designated staff person. Each circle meets weekly as a group, and each volunteer is committed to at least one in-depth contact with the core member outside of the circle meeting. The circle does not do surveillance, nor is it custodial in nature. It is, however, a group of community members who are committed to community safety through inclusion, rather than exclusion of offenders.
Each circle member is very aware of offending histories, patterns of behaviour, and risk factors. Each is committed to both supporting the core member, while at the same time holding the person accountable for the choices they're making. Circle staff and volunteers work with other professionals in the community, including the police, and are committed to calling the appropriate authorities if community safety is at risk. Although the initial thought was that a circle was needed only for the first year post-incarceration, the reality is that many individuals need this intentional community for many years, if not a lifetime.
In the past 12 years, this project has worked with over 100 men, and the circles concept has been replicated in almost every province across Canada and a number of the states, including Colorado and Vermont, and in Great Britain. The success of this approach has been verified in the statistical study conducted by Dr. Robin Wilson under the auspices of the Correctional Service of Canada. This study has also been replicated using data from other circles' initiatives from across the country, and has come to basically the same conclusions: that this kind of approach works.
Charlie Taylor, the first circle member, died on December 25, 2005. For 12 years, aside from having one shoplifting charge, Charlie lived in the community, participated in community activities where appropriate, lived in his own apartment for the first time in his life, looked for ways to give back to the community, was in contact every single day with one of his circle members, and did not reoffend sexually.
Don, presently living in the GTA, was released four years ago with a community notification by police services. Also designated at a high risk to reoffend within the first year, he was unable to find and maintain housing for the first four months after his release, due to public reaction. Don has actively participated in the circle, in conjunction with the circle has become a valued volunteer with a partner organization, and is looking for ways to give back to the community.
We do not believe that sexual offending can be cured. But we do believe that with appropriate support and accountability structures in place, and hard work on the part of the individual core members, sexual offenders can live safely in the community. Volunteers who work with circles feel empowered by their involvement. They model community standards, challenge ways of thinking by the offender, and engage in a more relational way of monitoring behaviour: security that is dynamic rather than static.
A keen need for victims is the need for safety. Victims report that they want to know that there will be no other victims. Circles are committed to no more victims, and although we cannot undo the past, volunteers and staff work diligently with the core member to ensure that the offending behaviour does not occur again. The goal of circles of support and accountability is to ease the fear of victims and to prevent further victimization.
Although the circles model has been primarily used with sexual offenders post-sentencing, it has also been utilized with other kinds of offending histories--drugs, arson, theft--and has been replicated with women moving from transitional to permanent housing, primarily those returning to the community from federal institutions.
We believe that the circles model has potential for use earlier in the justice process. It has been used already as part of a bail condition and has been considered in other situations where security and public safety are high priorities. We believe that using a circles model earlier would allow for a more effective response to victims' needs, would open up greater possibilities for their experience of justice, and would allow communities to be engaged in providing safety and accountability.
Yes, you have a certain number of effects. Let's take a first shot at least three.
Number one, it's very difficult to reconcile minimum sentences with the principle of proportionality, because the principle of proportionality basically is guided by several factors, harm and guilt. For instance, the determination of guilt is not automatic. In some cases you have crimes that are caused by certain circumstances. In some other cases, some of these crimes are, at first blush, motivated by pure evil and some things like that. So you have to look into these different circumstances. So that's one effect.
So if you have one formula fits all, it supplants the principle of proportionality, and of course, secondly, justice doesn't appear to be done either in the eyes of the public or in the eyes of the person who is subjected to this penalty.
The second thing is that it curbs the discretion of the judges, and here let me be even more precise than this. I think one has to alienate judges only if there's an overwhelming public interest in doing so. My example would be this. When we submitted our report, the Canadian Sentencing Commission report, we had some guidelines that we wanted to submit to judges, and these were presumptive advisory guidelines and there was no coercion whatsoever in the guidelines. The response of judges, I have to say, was fairly negative, meaning that they didn't want to have any kind of constriction on their discretion, excepting the one that exists right now. Basically, you have two lawyers, you can have an appeal, you have the charter, so sentencing is not done in a vacuum. Basically, they felt that guidelines were an imposition upon them.
If that is true with guidelines, multiply...sorry?
Thank you. If I may, Mr. Chairman, I have a few questions for Professor Brodeur.
This summer, I read the Archambault Commission report. I would not go so far as to say that it was an enriching experience, but I did enjoy reading it. Nevertheless, I'm sure you will agree that it is a scientific document.
I am dismayed. First, the clerk gives us a document—which I can forward to you—from your colleague, Mr. Doob, from the University of Toronto's Centre of Criminology; this document lists everything that has ever been written about deterrence and minimum sentences. He suggests that there is no real relationship between the two. He said that some variables may account for a small difference, but on the whole, it would be scientifically wrong to relate a deterrent effect caused by minimum sentences to the drop in the crime rate.
I would like you to expand on the subject of murder. You said that you have a data bank of homicide cases and that, 75% of the time, these murders are the result of a crime of expression. That leads me to wonder if we, as legislators, are not mistaken when we try to reduce the crime rate by advocating a public firearms registry or by trying to reduce the number of firearms in circulation or by turning our attention to contraband, street gangs and criminality. Are we not approaching the problem from the wrong angle?
I would like you to help us to understand the conclusions that you have drawn from your second point relating to your data bank.
In my study, I found that people are influenced by detective novels and generally think it takes around 365 pages to solve a murder.
Actually, I can only give you examples of crimes. Take the case of an individual who is harassed at work for a long time, gets mad and suddenly kills someone. Another example might be a mother who kills her child who is very sick, or young people who point their weapons at one another and fire them in plain sight.
For the first type of crime, to some extent, deterrence isn't really an issue, because they are crimes committed on impulse. As for other crimes, crimes committed by organized crime, their rate of solution is generally quite low. When you hire a hitman to knock someone off... Take the Auger case; the guy who tried to kill that reporter was never found.
He says he knows who did it.
Mr. Jean-Paul Brodeur: The police say they know too, but can't prove it.
So there's a bit of a split: on one hand, you have people who act on impulse, who are impervious to the deterrence, and on the other, you have pros who think they've got a good chance of getting away with it.
In closing, one of the things the commission was trying to say was that you need to have an integrated and consistent approach to justice.
One thing struck me when I read these provisions. When you referred to the firearms registry, you said two new offences were being created: breaking and entering to steal of a firearm, and robbery to steal a firearm. For someone who wants to steal firearms, a weapon is far more desirable if it's unregistered. When the weapon is registered, it's a less attractive target for theft.
So it's hard to see the logic in "deregistering" firearms and creating new offences for individuals who break and enter to steal these weapons. These are contradictory efforts.
—recently published a book in Quebec.
Yes, I'm aware of that, sir. Don't take it as flattery. The phenomenon, which is attracting a lot of attention, is relatively recent.
I'm just going to repeat something I probably went over too quickly in my presentation. Young people who join street gangs are arming themselves, and arming themselves heavily. It's a spiral. They arm themselves because their opponents are armed, and the third guy arms himself because the first two are armed, and so on.
In this case, increasing the sentences or imposing minimum sentences has little deterrent effect because to some extent, they are more afraid of the young men in the other gang, their rivals, than the law. That's why, if you want to solve the problem of street gangs, you have to deal with the root causes of the problem rather than piling on relatively useless penalties.
The reason a young person decides not to enter into a drug transaction unarmed is to avoid the risk of getting stabbed or shot by the other person. I'm not saying I agree with that; it's unfortunate that that's the way it is. However, that shows once again that the deterrent effect is really minimal.
What I can say, for obvious reasons, is that I don't know what a lot of judges are feeling, because there are certain constraints on what they're able to tell us. I think there's no doubt there are lawyers who have been in situations where a judge has made a comment during a sentencing that their hands are tied.
But I can maybe comment more in terms of the prosecutors. When they're trying to resolve a matter, you would think that maybe some prosecutors would find it efficient that they at least have the floor set, but it does create problems.
I will give you an example of a very real problem that I have dealt with, where a farmer shot down a crop-duster that had flown too close to his farm. The person wasn't injured, but there was no doubt that there were effects psychologically. At the end of the day, what the victim wanted was restitution, restitution for the cost of the plane, the lost business. Now, if that person were incarcerated for four years—and that's for having discharged a firearm with intent—and they had a farm and were trying to make money, they would have little or no ability to pay the restitution. To the crown, recognizing what the real goals of everyone were, of the victim to be in the situation they were in before, in terms of reparations, and of the offender obviously to be allowed to be out in order to be able to make the money to pay back the victim, that charge then becomes a careless use of a firearm.
So you have those constraints. And I've mentioned that there's an out that's been played. But again, it relies on that crown attorney to exercise that discretion; it may not happen in every case. But if you put that situation before a judge with no constraints in terms of minimums, and you say, what we're presenting to you today is that the victim wants to be in a situation they were in before and have their money paid back to repair the damage, and in doing so, we ask that you consider a conditional sentence, so that the offender will be out in the community and make regular restitution payments, that is then achieved within the framework of the charges that were originally dealt with. But you can't, obviously, because there's a mandatory minimum for discharging a firearm with intent.
That is the example of a potentially lesser sentence and a lesser offence to achieve the goals of sentencing.
It has been studied. There's some sort of Nobel prize in criminology that has been awarded for two years. Professor Alfred Blumstein was awarded this prize. He actually studied the phenomenon you are mentioning.
What you're saying is something like, let's move out of deterrence rehabilitation and talk about incapacitation; that's what you're saying. If you incapacitate or neutralize these people by sending them to jail for a long period of time, does it have an effect? Professor Blumstein found two things. It has a modest effect; however, the price you pay to have this effect is that you have to do what the U.S. is doing right now, which is mass incarceration.
The sentencing process is an instrument that is not very precise. In order to have these career criminals—these highly dangerous offenders—in prison for a long period of time, you have to pay the price that you're going to cast a wide net and catch all kinds of fish. Of course, you will eventually catch some highly productive criminals, but I want to remind you that mass incarceration in the U.S. has produced one of the highest rates of incarceration known to the western world. It is probably, as of now, at least six or seven times the rate of incarceration in Canada.
So to answer your question, yes, that kind of effect has been spotted. It is modest, but the price to obtain the effect is mass incarceration, and I'm not sure that this is in line with our Canadian values.
Thank you, Professor, and I appreciate that point. That's certainly not what we are proposing, any mass incarceration.
That is precisely why this bill, Bill , is narrowly targeted at those involved in gang activities and using guns to commit crimes. Not wanting to cast the net too wide, we're focusing very much on what Canadians are telling us are the most serious offences.
I've heard quite a bit of talk about this discretion of judges, but I'd like some comment from the Canadian Bar Association or others. For many of the offences we've listed, and I'll talk about some of the primary offences where it's an escalating five, seven, or ten years, what we're dealing with in the second and third cases, of seven and ten years, is someone who has used a firearm in attempted murder, discharged a firearm with intent, committed sexual or aggravated assault, and so on—what we've found to be the most serious offences—and has done it not only once but twice.
Many people feel that when there's been a recidivist activity, obviously we have to bring in safeguards and start to err on the side of protection of society. When someone has done this once, that's one thing. When they're out and have done it again, it's quite another, in the public's view.
Just so I know what we're really talking about, isn't it the case with many of these offences that there's already a four-year mandatory minimum? What Bill does, instead of making it a four-year mandatory minimum, is make it a five-year mandatory minimum. We're talking about taking discretion away from judges.
It's been presented, I know, by the opposition—in some cases very alarmingly—as that we're narrowing the discretion of judges. But what we're doing with this bill is saying that on these most serious offences, on a first offence, instead of four years, it's five. Is that not the case?
That's fine, and I appreciate that sometimes judges do sentence what people feel is appropriate. Many times it's appropriate.
But I feel there has to be an acknowledgement that this is not entirely new. Our Criminal Code contains mandatory minimums and it contains maximums, both of which limit the discretion of a judge somewhat. The argument has to go both ways, I would think. If one is against all minimums, presumably we'd be against all maximums too, because those also limit the discretion of a judge.
But I guess what this bill does—and I'll use your example—is that right now if you shoot down a crop-duster, the mandatory minimum, if you're charged under some offences, would be four years. Under our bill, if you shoot down a crop-duster, it would be five years, and all the same principles apply regarding any bargaining that could take place with the prosecutor.
Now, if you show yourself to be a recidivist, either after getting a lesser charge or serving your time, and you are back in your field and shoot down another crop-duster, what society is saying, and what we're saying, is that you've shown you're dangerous to society. We want to limit that discretion; we want to send a message. We want to ensure that the public is protected. We want to take dangerous repeat offenders off the streets. That's what this bill does.
Also there are some new things: robbery where a firearm is stolen, and break and enter where a firearm is stolen. We feel those are new provisions that need to be in place, because that's a real problem too.
Thank you, Mr. Chairman.
Thank you for coming. This is very interesting. Needless to say, I appreciated you statements. I have practised criminal law as a defence attorney for 25 years and I oppose this bill. I think that my position is clear.
As I have practised criminal law for a long time, I carefully read the brief from the Canadian Bar Association. I had the same question and I want you to explain something to me. Perhaps, Ms. Joncas, you could confirm it for me as well.
As we analyze Bill , it would almost be fair to say that it contains some heresies. In fact, I do not know what came over the minister or his assistants when they drafted this bill, but if we knew, it might help us to understand this. I would like some clarifications on section 1, which amends section 84 of the Criminal Code. If I understand correctly, time spent in custody awaiting trial would not be taken into account for repeat offenders. I do not know whether you are following me.
As you studied this very closely, could you tell me whether I am right in saying that one must be entirely disconnected from reality to take no account of the time spent in custody awaiting trial? I refer specifically to section 1 of the bill, which amends section 84 of the Criminal Code.
I would like to hear what you have to say about this. I would also like to hear what you have to say about time spent in custody pursuant to subsection 719(3) of the Criminal Code and of course about the Supreme Court's Wust decision, whereby the time spent in custody must be taken into account. The legislator has decided to go against a decision made by the Supreme Court! I would like to hear what you have to say about this because to me, it seems entirely divorced from reality.
I would like to hear your opinion on this, Ms. Joncas or Mr. Weinstein; I do not know which one of you two has read this attentively.
I have a couple of questions. Number one, I'd like to speak to the Mennonite ladies who are here. Thanks for coming.
I don't know if you've heard of Linden, Alberta, and Didsbury, Alberta. There's a huge community of Mennonites in that area, and that's the area I represent. I've played a lot of baseball against those guys. I could never beat them. They were always a little better than we were. I don't know how they had all that time to practise in the middle of their farming, but they were tough to beat.
Talking to these people, the very people I talk to, we talk about these kinds of issues and these kinds of things that we intend to do. I've asked them what we should do with a person who does this with a gun. Do you know what the response is? “Well, you have jails. That's what they're for. That's where they belong.”
They also believe heavily in going into the penitentiaries and doing the very fine work they do in rehabilitation, and I can appreciate that, because I went there with them on a couple of occasions before I got into politics.
So I don't really understand why you people would come here and oppose this, when I can guarantee you that I know a whole group in my riding who would support it heavily. That would be a question. I'll give you a minute to think about it, because now I'm going to go to the Bar Association.
Shooting down a crop-duster, I thought, was a very poor example of what we're getting at here. Number one, I know that there's self-defence, but I can't really find any root cause of anything that would cause a person to pick up a gun and shoot a crop-duster down. You shot a crop-duster down? You took a gun out and shot a plane? And you think you're justified in doing that because he flew too close to your house?
In my riding I've seen people who accidentally got on private land--who thought they were on crown land hunting--and the owner came out and shot them. Are you justified in shooting somebody who got on your land? Maybe they were trespassing, but maybe they unintentionally trespassed. Nevertheless, do you think you should pull out a gun and shoot them? You can find examples like that, and I just can't find any root cause or any excuse for taking up a gun and trying to take someone's life, other than self-defence.
As far as the Bar Association goes, I'm really confused about you people, because I have lots of lawyers in my riding who seem to think that this bill is right on, that it's what we should be doing. I've even talked to two lawyers, believe it or not, who are Liberals who believe this is what we need to be doing. And you say you're representing all the lawyers in the country? Well, I don't think you are.
And I want to emphasize this. We had the police come here, and I guarantee you, with their presentation to the committee, that the police out there, everywhere, are supporting their position at this table. Why is that? Other groups of people have come here representing groups like the police, and the support is there. I can guarantee you that coming here against this legislation is not fully supported by your people. That doesn't make sense to me.
The last question will be on the New York City experience. Are you familiar with that, with the “broken window” theory and what that has caused? They hired a whole bunch more police and built more jails to try to curb crime, and you went to jail regardless of the offence. I understand that it's one of the safest cities to be in now.
If you have any comment on that, I'd like to hear it. Thank you.
I have a query for Professor Brodeur.
I'm searching for good reasons, really cogent reasons, to proceed with legislation of this type. To be honest, I'm having some difficulty. There is a lot of conflicting opinion.
If I speak to the police, they say we have to get “these guys” off the street—whoever “these guys” are. I'm pretty sure they're not referring to everybody in the criminal system but whoever they've brought in on charges. They want to get those guys off the streets so they won't have to deal with them next week and next year and the year after. That's a natural position they have.
If I speak to the public generally, they'd like to see more denunciation built into a sentence. They like that. They would like to see more deterrence built into a sentence. They like that.
I don't see a lot of deterrence, based on the opinion we're getting from our experts. I do understand the denunciation piece. If we told our public that we were going to put everybody in jail for 10 years minimum for anything in the Criminal Code, there would probably be some members of the public who would say yes, that will do it, that's denunciation; they will get the message. But I know it won't make much of a difference in our criminal law system. It might even hurt it.
Can you help me? Can you help me on the denunciation message? Is there any component of this legislation that you think would assist in both the political message of denunciation to the public and the denunciation message to the existing or potential criminal?
My first question relates to judicial discretion. I've heard some reference made to judicial discretion by a few of the witnesses today and I want to see where you're coming from on this.
I believe in some cases, in the cases of maximums and in the cases of minimums, that if judicial discretion is given some guidance it's helpful. We've seen that with the maximums in the code and with the minimums in the code.
I certainly support this legislation, because I believe in some cases we need minimums. So for those who have spoken against any curbing of judicial discretion, I want to see what your opinions are on other cases where we inhibit judicial discretion in the code.
For example, would you be in favour of removing the current maximums in the code? And I want to get your opinion on this because I want to understand if it is this specific legislation that tackles criminals--and if it's that, then I can appreciate where you're coming from--or is it really judicial discretion that you're concerned about, because both those are incongruent. You can't come from both positions. You can't be in favour of limiting judicial discretion in one case but not in the other.
So we could start off with Lucie, and I know you're the first one who mentioned judicial discretion in your comments.