I'm a professor at the Centre for Criminology at the University of Toronto. My research on various topics in criminology has been published in a number of peer review journals during the last 35 years. Recently, a colleague at the University of Ottawa, Professor Cheryl Webster, and I wrote a detailed review of the research literature on deterrent impact of sentencing for Crime and Justice: A Review of the Research, which is one of the major publication series in this field. A summary of my CV has been given to the clerk.
I'd like to make three rather straightforward points. First, contrary to what various people have said in the House of Commons and elsewhere, the research evidence does not support the conclusion that sentencing enhancements such as those contained in Bill will reduce crime. The best research on this is quite consistent. Mandatory minimum sentences will not reduce crime.
Second, you should be very cautious about accepting some of the evidence that is sometimes cited as demonstrating that mandatory minimum sentences can reduce crime. Much of the evidence contains obvious artifacts that can be easily demonstrated.
Third, you do the Canadian people a serious disservice when you imply or state that serious crime can be controlled, even in part, by imposing increasingly harsh mandatory minimum sentences. This disservice is easy to describe by focusing on approaches we know are not going to work; you fail to consider approaches to crime that would make our community safer.
At least one previous witness urged you to consider comparisons with the United States. He concluded these comparisons demonstrated harsh sentences would reduce crime in Canada. Simply put, I found his analysis to be astonishingly inadequate. Though I don't think these are the best data available for either side of this debate, I would like to spend a couple of minutes giving you a more adequate description of some of the differences across these two countries.
This is a graph of total crime and violent crime, as recorded by the Canadian police over the last forty years. I've multiplied the violent rate by ten to be able to see the shape of the curve. It is the shape rather than the absolute value that's important. Reported crime obviously went up rather steadily until the early to mid-1990s, and then it started to drift slowly downwards.
Crime is reported differently in the United States, hence you cannot legitimately compare the absolute values from these two graphs. This is the United States. What you see is a remarkably similar trend to what you saw in Canada; increases up to the early 1990s and then decreases since then.
Turning to homicide, because homicide figures can be made comparable, I've plotted the actual homicide rates of the two countries on this slide. American homicide rates are typically about three times those of Canada, but if you look carefully, you can see the overall trends in Canada and the United States are similar. Homicide rates peaked in the mid-1970s and then drifted downwards, heading up a little bit in the late 1980s and then downwards in the 1990s.
To be able to compare these trends visually, I've put the two countries' homicide rates on the same scale by setting the 1961 rate for each country to one and then plotting the change from that rate. What you see, again, is similarity. Increases from the 1960s to the mid-1970s, then a gradual and uneven decline, most notably in the 1990s.
What does this have to do with punishment?
This is the picture of Canadian imprisonment levels for the past 45 years. For various reasons, largely because we found ways of punishing those offenders who committed less serious offences in the community rather than by sending them to prison, we have had a rather steady level of imprisonment over the last 45 years.
In contrast, this is what the American imprisonment rates look like. U.S. imprisonment rates were rather constant for 50 years, ending in the mid 1970s, and then increased dramatically. U.S. imprisonment rates went from being slightly higher than ours in the early 1970s to about seven times that of Canada now. In the last few years we have jail data, which for various reasons weren't available until then, but what you see is an imprisonment rate that is about seven times Canada's rate.
Most criminologists would agree that the levels of imprisonment do not predict the crime rate. In this case, we have two countries, the United States and Canada, with patterns of crime that are fairly similar. Yet the two countries have dramatically different patterns of imprisonment. Therefore, when you're told that high levels of imprisonment will make Canadians safe, you should ask yourself why the shape of our trends are so similar to those of a country that has had very different levels of imprisonment.
I do not consider these to be the best evidence on the subject. I raise it only because apparently you've been urged to follow the American model of attempting to deal with crime by increasing imprisonment levels.
The conclusion from the actual data, if you want to think this way, would be that we have accomplished similar crime trends without having to spend billions of dollars imprisoning people.
To understand whether increased penalties affect crime, I would suggest that you look at the overall weight of the evidence. The conclusion that Professor Webster and I came to—
To understand whether increased penalties affect crime, I would suggest that you have to look at the overall weight of evidence. The conclusion that Professor Webster and I came to, based on a thorough survey of the evidence, especially that which was carried out in the last fifteen years, was that variation in the severity of sentences does not affect crime rates.
The reviews that come to different conclusions have generally looked selectively only at the occasional paper that finds some evidence that harsh sentences deter. In other words, for more than 25 years, the overwhelming weight of evidence has been consistent with the conclusions that harsh sentences, in legislation or in practice, will not have any consistent or appreciable impact on levels of crime in the community.
I would now like to turn to two sets of data that have received a lot of prominence here in Ottawa. Each of these has been used to demonstrate that harsh sentences deter. The first example comes from an analysis of a paper that has been referred to in the context of the current bill. It seems that when the deterrent impact of harsh sentences is raised, the name Steven Levitt, one of the authors of the best-selling book, Freakonomics, is mentioned, and his paper with Daniel Kessler, published in 1999, is cited.
On the basis of their evidence of the effects of the June 1982 California initiative, Proposition 8, these two economists concluded that the increase in sentence severity that came into effect in June 1982 was responsible for the reduction in crime in California. As a result of this 1982 change in sentencing laws in California, sentences for certain crimes committed by repeat offenders were made considerably longer. From a deterrence perspective, the change in sentencing laws was seen as a good opportunity to test the deterrence theory, since the change in the sentencing was dramatic, sudden, and well publicized. The typical finding is what's shown here, and it is also shown in the translated document.
These are data from Kessler and Levitt's original paper, and what you see is the timing of the law changes marked by the vertical line. From this graph one could easily conclude that crime was going up until the time the sentencing law in California became dramatically harsher. Crime then dropped dramatically, immediately after the law, one could conclude, and these would obviously be quite impressive results.
The findings are similar for four other crimes that were covered by the change in law. Crime went up before the change in the law, Kessler and Levitt's data would show, and then dropped dramatically afterwards. It's no wonder that the supporters of the current bill have repeatedly cited this single study by a quite famous economist, but I'd like you to look again at these data.
Look at this curve carefully and what you'll see is something that's quite peculiar. Levitt, in the published paper, presented data only for the odd-numbered years. That's what's in the figure; that's what was in his paper.
Let's look at the full set of data that were never publicized and never presented in this very highly cited paper on deterrence. This slide simply adds the even-numbered years. The data for the odd-numbered years is identical to what you saw before. Again, the vertical line is when the law change occurred. Unlike the partial set of data, which Kessler and Levitt relied on, what you see is that crime was going down, and started going down before the law changed. The other offences examined by Kessler and Levitt, which were subject to these especially new harsh sentences, show the same kind of pattern.
On the left of these panels, I've presented the data as published by Kessler and Levitt. On the right panel, all I've done--all, in fact, Cheryl Webster, from the University of Ottawa, and Frank Zimring, from California, and I did--was to add the data for the even-numbered years. By choosing, as Kessler and Levitt did, to present the data only for the odd-numbered years, they gave you a picture of the trends that is completely different from the picture you see when all of the crime rates for all of the years are included.
If you wish, you can look at the monthly data to get a more exact estimate of when the crime drop occurred. We did this as well. Here's one example of it. Again, we marked the time when the law changed by the vertical line, and what you see is that the crime drop started before the law changed, not after, as you would expect if it were the law that was responsible for the change in crime rates.
These graphs are part of a paper that I co-authored with Professor Webster, and Professor Franklin Zimring, from the law school at the University of California, Berkeley. Professor Zimring is one of the world's experts on deterrence, having written extensively on deterrence, beginning with his classic book on the topic in 1972.
As you can imagine, Professor Levitt is not very pleased with our analysis. The best one can conclude I think from Levitt's very interesting, very selective use of data is that it would be risky to base any policy on a study such as this.
About a year ago, in the last session of Parliament, when you were examining Bill , you had a witness before you who indicated that sentence enhancements had helped to drive down the rate of violent crime in Florida. His evidence, like that of your local witness last week, concluded that Florida's 10-20-life law may have sounded convincing. The implication of their statements is clear: tough sentencing regimes drive down crime.
I'm old-fashioned. I think you should look carefully at the data. From the data I presented to you at the outset, you should already be skeptical about such assertions. Crime was already on the downward trend in the United States. Violent crime peaked in the United States and Canada in the early 1990s and then drifted downward.
So let's look at this trend in California. The next two figures show total index crime, which is a measure of the total more serious kinds of crime, and index violent crime for Florida in the 1990s. The timing of the implementation of the so-called 10-20-life law in Florida is marked again by the vertical line.
If you look at this figure, or the next one, which deals with violent crime, the problem with the inference that the law created a change is immediately evident. Crime was going down anyway. If these two figures didn't have a vertical line in them showing where the law change took place, you wouldn't have any idea that anything special was happening. Crime was going down in Florida, just the way it was going down in other parts of the United States and in Canada. There is no evidence that the change in law changed anything.
There are obviously many more studies on this topic. The best research examines more than one jurisdiction and attempts to control for other factors known to correlate with crime rates. Considerably more sophisticated studies have been carried out.
In the United States in the 1990s, largely as a result of the popularity of the so-called three strikes laws, many U.S. jurisdictions brought in very harsh sentencing regimes for at least some offences. Some studies have looked, overall, at the impact of these sentencing changes. One set of investigators, for example, examined the impact of the sentencing changes on seven different crimes in 21 states, using the data from states where no changes were made as a form of a control.
This slide shows you a summary of their findings. The authors report that there were as many increases in crime as there were decreases that followed the imposition of three-strikes sentencing laws. Clearly, it is just as inappropriate to focus on only those changes in the law where crime decreased as it would be to focus on those instances where crime increased after sentencing got tougher. But these findings do show you the dangers of taking isolated findings out of context.
There are two other sets of problems with mandatory minimum sentences that I would like to mention. It is almost inevitable that mandatory minimum sentences will result in disproportionate sentences for at least some offenders. We already have a requirement in the Criminal Code that sentences must be proportionate to the severity of the offence and the offender's responsibility for that offence. It is my impression that most Canadians endorse proportionality in sentencing.
Clearly, Parliament, in attempting to constrain judges with mandatory minimum sentences, is purposefully sending the message that it does not trust judges to judge the severity of offences. But in addition, mandatory minimum sentences almost certainly force judges to hand down sentences that violate section 718.1, the proportionality principle in sentencing.
If the proportionality principle needs strengthening in the Criminal Code--and I, for one, believe it does--then there are ways in which this can be done. But mandatory minimum sentences have been shown repeatedly not to be an appropriate tool to accomplish this goal. There are other harms that can come from proposals such as this one. If the Parliament of Canada were to approve , it would be telling Canadians that Parliament can make our communities safer by increasing mandatory minimum sentences. This is, quite simply, a false promise. If you were to vote in favour of this bill, therefore, you would be, in my opinion, making a promise to Canadians that is known to be false. But it is worse than that. Focusing on such matters as mandatory minimum sentences also distracts you, the Parliament of Canada, from considering approaches to crime prevention that might actually make our communities safer. In other words, by convincing yourselves and others that the proposals such as this one will improve our communities, you necessarily do not adequately consider approaches to crime prevention that would improve our communities.
Thank you very much.
Thank you very much for the opportunity to appear before the committee today. My name is Royland Moriah. I'm the policy research lawyer at the African Canadian Legal Clinic. With me today is Charlene Theodore.
I'd like to apologize at the outset for not having our written submissions. I know there obviously was an issue with Mr. Doob's submission, at least with respect to his slide not being available or translated. Unfortunately, ours isn't translated yet, but I have spoken to the clerk and she has assured me that it will be done and will be available to the members of the committee as soon as possible. I would urge you to contact me if you do have any specific questions with respect to those submissions after you have received them.
I'll give you a little bit of information about the African Canadian Legal Clinic, which I'll refer to as the ACLC throughout the course of my submission. We're a specialty legal clinic funded by the Ontario legal aid system. We conduct legal work aimed at addressing systemic racism and racial discrimination in the province of Ontario. We engage in our work using a test case litigation strategy. To that end, we've represented litigants at tribunals and all levels of courts, up to and including the Supreme Court of Canada. We also monitor legislation—that is why I'm here today—and engage in advocacy and legal education in eliminating racism, and anti-black racism in particular.
Criminal law issues and issues of racism and discrimination in the justice system, of course, are central to our mandate. As noted in our brief, which you will hopefully have an opportunity to read, we've been involved in a number of interventions at all levels of court. For example, we were involved at the Supreme Court of Canada, in Regina v. Spence and Regina v. Williams, which dealt with addressing issues of race in jury challenges for cause; and Regina v. Golden, wherein the Supreme Court outlined strip search procedures for police. At the Court of Appeal, we were involved in some of the seminal racial profiling cases, including Regina v. Brown and Regina v. Richards. More recently, we've been involved in a lot of policy work, particularly with respect to Justice Patrick Lesage's review of the Ontario police complaints system. And this past summer we had part II standing in the Ipperwash inquiry, wherein we provided the inquiry with a report on police use of force.
We're very pleased to have an opportunity to present submissions on , as criminal justice issues are obviously very important to the community we serve. As already noted, numerous reports from jurisdictions across Canada and from all levels of court have raised concerns about the impact of race on the Canadian criminal justice system.
It probably comes as no surprise to many of the people on the committee, because the information is out there, that African Canadians are particularly overrepresented in the criminal justice system. For example, in the recent 2001 census, African Canadians represented approximately 4.5% of the population. However, the federal offender management system, as of this past April, indicated that African Canadians right now comprise 16.1% of federally incarcerated individuals.
Many reports have noted that the overrepresentation of the African Canadian community is due to systematic over-policing. Research by criminologists such as Scot Wortley, from the University of Toronto, have confirmed that African Canadians are targeted by police, and African Canadian males, particularly young males, generally are at greater risk of being stopped and harassed, and thus more likely to be charged with an offence.
The issues that are raised by are of particular importance to our community, especially the community in Toronto. As most of you have probably seen from the media reports that have been out there over the past year and a half, there has been a rash of gun violence in Toronto over the past year and a half, and it has particularly impacted our community. Given this reality, we submit that there's a clear need to develop effective strategies for addressing this problem.
As noted in our brief, since the outbreak of gun violence, our community has in fact called for strategies that address the root causes of gun crime, with a focus on preventing gun crime from happening rather than punishing its effects. I would submit that most Canadians would agree with us that it's not good enough for us to react to the issue of gun crime and put people in jail after people are maimed and killed, but to prevent it where possible, to prevent the loss of life.
Part of the approach that we had recommended, recognizing that this is a complex issue that will require a multi-faceted approach, was the need to increase funding for services in at-risk communities. It was the need to re-establish many of the social programs that had been cut by the successive governments over the past decade or so. These are governments at all levels, too--both the provincial level and the federal level through transfer payments.
However, our concern with respect to Bill 's approach to dealing with gun violence is that at best it is simplistic and at worst it is a reckless response to gun violence. Instead of considering the causes of gun crime and implementing effective strategies, we are essentially relying on rhetoric and ideology, giving the appearance of action while doing little to truly address the problem. It is the ACLC's submission that the proposed Criminal Code amendments won't be effective because they fail to address the complexity of the problem of illegal guns. Unless we commit to recognizing and addressing these underlying causes, we cannot have effective strategies for addressing the problem.
While there are numerous problems that arise out of the proposed mandatory minimums—Professor Doob has raised some of them, and I'm sure you've heard quite a few over the course of the hearings into Bill —my submissions for the ACLC will focus on three main issues: the impact of mandatory minima on the fundamental principle of proportionality—to which Professor Doob has alluded somewhat; the recognized ineffectiveness of mandatory minima—as Professor Doob and I'm sure many others have raised again and again before this committee; and particularly important to the people we serve, the impact of mandatory minima on African Canadians and African Canadian communities, and I would also say communities at large across Canada.
With respect to the principle of proportionality, as Professor Doob noted, sentences under section 718.1 of the Criminal Code should be proportionate to the gravity of the offence and the degree of responsibility of the offender. Mandatory minima distort this principle by removing judges' ability to consider other relevant factors, including aggravating and mitigating circumstances. As noted in an article by Julian Roberts:
||A mandatory sentence prevents judges from modulating the severity of the sentence to reflect the seriousness of the offence and the degree of blameworthiness of the offender.
An example given by Ms. Sue Barnes in her speech to the House, which is actually referenced in our written submissions--and again, I'm sorry that you don't have those available to you--highlights the importance of judicial discretion in the sentencing process. What she talked about was a situation where somebody without a criminal record who's carrying an unloaded gun would actually, under the proposed amendments, get a higher sentence than somebody with a criminal record with a loaded long gun. I think right there that raises some issues with respect to the issue of proportionality.
This is only a very limited example; there are many examples. This is something we really have to consider, how this will impact the criminal justice system and the way our sentencing procedures work under the system.
That's why it's important to consider the role that judges do have. They are uniquely situated to assess all the circumstances of an offence to fashion a suitable sentence that takes into account all the relevant factors, including the need for deterrence, rehabilitation, and protection of society where it's demonstrably necessary. Mandatory minimum sentences usurp this critical role of judges, and they will result in disproportionate sentences. The evidence is clear. They will not adequately consider all the circumstances that are necessary for the proper functioning of proportionate sentencing under the criminal justice system.
In terms of effectiveness, I know I'm probably beating a dead horse, because this is something that has been talked about again and again by probably many of the people who have appeared before this committee and the many people who have a lot of expertise, more expertise than I do in this area. There's just no doubt that mandatory minima do not work. This debate isn't new in Canada. It has been going on for quite some time. The last sentencing commission looked at sentencing commissions and law commissions over the course, I believe, of 40 or 50 years and noted that none of them endorsed mandatory minimum sentences as an appropriate response in the criminal justice system. They were quite clear that they simply do not serve their stated purpose of deterrence or incapacitation.
Recent research done by academics or even commissioned by government departments also concludes that mandatory minimums are not effective. Reports from other jurisdictions--primarily a lot of research in the States and also research in Australia, because they followed some of the mandatory minimum sentences provisions in their country--also confirmed that mandatory minimum provisions do not lower crime rates, do not serve as a deterrent, do not have an incapacitation effect, do not work. In fact, jurisdictions in the States are now moving away from mandatory minimums as lawmakers are starting to understand that they have gone down the wrong path, that these are not effective, and they have a very detrimental impact on the functioning of their criminal justice system.
Even the legislative summary for Bill noted the questionable effectiveness of such provisions. Yet, under the guise of being tough on crime, the government has introduced amendments that, given the available research, you should be well aware, will do little to address the problem of gun violence.
I'm just going to raise a couple of issues with respect, obviously, to the impact on the African Canadian community. It's going to take a couple of minutes, and then I'll conclude.
It's our submission that given the widespread acknowledgement of the ineffectiveness of mandatory minimums, the government should not move forward with these amendments. As rightly noted by Thomas Gabor and Nicole Crutcher in their research for the Department of Justice:
|The severity and inflexibility of some mandatory sentencing policies is such as to place a special onus on proponents to demonstrate that their economic and human costs, as well as their incursion upon the judicial role in sentencing, is warranted by their preventative and other benefits.
We're particularly concerned about the human costs to the African Canadian community as well. As I have already stated, these are costs that are going to impact not only our community but communities across the country. There is ample research that highlights a disproportionate impact of mandatory minimum sentences on African Canadians and on aboriginal accused.
There is no doubt that racism affects our criminal justice system. We have numerous reports from jurisdictions across Canada. I won't mention them. They are mentioned in our report, and you can certainly take a look at them yourselves. A major factor in the overrepresentation of groups in the criminal justice system is the reliance on discriminatory stereotypes. Often these stereotypes come into play in discretionary decision-making. This is particularly important in a situation that involves mandatory minimums, because mandatory minimums remove the discretion from an accountable process before an impartial judge and place it with police and prosecutors who have no accountability, whose decisions cannot be reviewed, and who, because of that, have even greater leverage over accused persons.
This occurs because accused, in certain situations in which they are faced with mandatory minimums, are willing, whether or not they are culpable of a crime, to take a lesser sentence to avoid the possibility of a longer mandatory minimum term. For African Canadians and for all Canadians, it is vitally important that critically important criminal justice concerns such as sentencing occur in an open and transparent process that's open to challenge where necessary.
Mandatory minimums are also problematic because people have the idea that they will increase safety within the community. Our concern is that mandatory minimums do not have a long-term impact on safety in communities. While they certainly will help in having people incarcerated, there is a concern, particularly for marginalized communities into which many of these people will return, that they are invoked without other available options being considered, which might be more useful.
We know that in terms of some of the gun violence that's happened in Toronto over the past year and a half, a lot of the people involved in these issues were young males. Our concern is that there are other options available, whether they are community-based or whether they are extra-judicial sanctions, which should be considered to help prevent these people from becoming more involved in the criminal justice system through incarceration among more hardened offenders.
Thank you, Mr. Chairman.
Thank you for inviting us here to give testimony regarding .
I believe you all have received the French and English versions of our presentation.
This afternoon, I would like to give you a brief summary of what has already been presented. I hope you don't mind.
I am the Executive Director of the Canadian Criminal Justice Association. Before assuming this position, I worked for the Correctional Service of Canada for 35 years. For most of those years, I held senior positions.
The Canadian Criminal Justice Association is one of the longest-serving, non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada. The CCJA began its work in 1919, and it has testified before this committee on numerous occasions.
Our association consists of over 700 members. It publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the Canadian Congress on Criminal Justice every two years.
We are not an advocacy group for offenders. Our mission is to promote a humane, equitable, and effective criminal justice system. We support research-based and reasoned policies that lead to such an effective criminal justice system for Canada.
Mr. Chairman, our association welcomes the initiative of this government in putting forward a proposal designed to deal with the problem of gun crime. Our concern with needless deaths of Canadians as a result of gun crimes goes back decades. Indeed, our organization provided testimony to the subcommittee on firearms control, on then Bill C-17, in August 1991. In that brief, we hoped that our recommendations would lead to a reduction in criminal activity involving firearms, a reduction of unnecessary deaths, and better control of firearms.
In May 1995, we provided evidence to the justice and legal affairs committee concerning Bill C-68, an act respecting firearms and other weapons. We supported the passage of that bill, with the exception of mandatory prison terms. I quote:
||Our association has a long history of opposing mandatory sentences. Of course, the sanctions fail to take into consideration individual characteristics of the offence as well as that of the offender. They tend to shift discretion away from judicial officers toward the police and prosecutors. They increase populations in overcrowded penitentiaries. They are often the subject of plea negotiations. They undermine the totality rule in sentencing and they often increase both the costs and time of litigation in our courts.
||Finally, the evidence isn't clear that mandatory prison sentences deter those planning to use a weapon in the commission of a crime.
It would appear that certain problems and deemed solutions are intractable.
Today I'm here to tell you that, with respect, our association has some grave reservations concerning . I will outline them briefly and look forward to your questions and comments.
First we need to ask ourselves what we are trying to accomplish with new legislation. Obviously, the government is attempting to implement new measures in order to ensure greater safety for Canadians. Every Canadian should agree with this intent. As a citizen, as a father, and as a husband, I want to be sure that my family and my neighbours are as safe as can be. How safe? Based upon what we read in the newspapers, probably safer. I want to be sure that they can go about freely wherever they need to be—be it in school, shopping, or at work--without fearing assault or injury.
So how does intend to do this? By increasing the criminal sanctions for offences involving firearms. We already have mandatory minimum sentences for about 40 criminal offences, including a number for gun crimes, that were instituted in 1995. How well are they working? Are they not harsh enough and thus potentially leading to the commission of more crimes?
I can tell you that in 12 years of direct daily contact with inmates, I never met one who indicated that he would not have committed a crime had the potential sentence been longer. Few ever remarked that they used complex decision-making models, dependent upon the length of sanction, before committing a crime.
Evidence presented here today by us and others, and that we cited in our paper, demonstrates that there is no relationship between the length of a sentence, in particular a mandatory sentence, and deterrence of crime. If anything, it is a certainty of apprehension and rapid sanction that may deter a criminal act.
What then is left but greater harshness of punishment? If that is the case and the intent of the legislation, we need to turn to an enormous meta analysis that reviewed 111 studies, involving 442,000 offenders, which was carried out by Paul Gendreau and his correctional research colleagues in 2002, on behalf of the Solicitor General of Canada. This study seemed to indicate that, if anything, harsher punishment may have led to a 3% increase in recidivism. Again, as has been cited, many of the jurisdictions that evoke the harshest punishment, including the death penalty, have the highest rates of violent crime.
Bill will further blur the lines between police, prosecutors, and judiciary. By further moving judicial discretion and sentence determination, discretion will be enhanced for police in charging and for crown counsel in prosecuting offences. The impact will be more plea bargains for those who are less guilty but fearful of mandatory minimum sentences--as has been stated a moment ago by my colleague--and as well, curiously, lengthy trials for those who might normally admit their guilt were it not for a lengthier mandatory sentence.
We need to reiterate the impact this will have on the correctional side of criminal justice as well. Obviously, the number of inmates will increase. At the provincial and federal levels, it will lead to even greater burdens on overcrowded facilities, more double-bunking, and increased risk to staff and defenders.
Programs that have a positive impact in safely reintegrating offenders will become even harder to obtain in a timely fashion, because mandatory sentences have a negatively differential impact on the disadvantaged. We can expect a further increase in the number of offenders who would best be served by the mental health system rather than the correctional one. The proportion of aboriginal offenders will grow further, even though they're already overrepresented by a factor of six or seven in penitentiaries relative to the Canadian population at large. The number of incarcerated aboriginal women in particular will continue to expand beyond all reason.
Finally, Mr. Chairman, we need to consider the cost of more inmates serving longer sentences. Certainly one could say that no cost to ensure public safety is too great. However, if the measures adopted do not work or, worse, have the opposite effect, then the expenses incurred are wasted money and wasted resources that can better be used for Canadians' health care, educational opportunities, and other social needs, which will also in fact assist those communities that suffer daily from the effects of crime. It's by investing in these causes that we can indeed have a positive impact in reducing crime and assuring public safety.
Thank you, Mr. Chairman. Although I made most of my presentation in English, I will be very pleased to answer any questions in French.
First, empirical research has demonstrated that mandatory minimum sentencing fails to achieve the intended goal of a reduction in criminal offending.
Secondly, this twenty-year experiment with mandatory sentencing has had catastrophic consequences for law enforcement in the criminal court system. We strongly recommend that this committee look to the United States as a cautionary example of the perils of resorting to mandatory minimum sentences to address criminal conduct.
In the interest of time, I would like to focus my oral remarks upon the second conclusion. In August 2003, the United States Supreme Court Justice Anthony Kennedy called for wholesale reform in the American system of criminal sentencing. He stated that our “resources are misspent, our punishments too severe, our sentences too long”.
Justice Kennedy, referring to the mechanisms of conviction and sentencing as “the hidden world of punishment”, was particularly critical of mandatory minimums as a primary catalyst for fundamental inequities and flaws in the American federal court system. He said that he “can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In too many cases, mandatory minimum sentences are unwise and unjust.” Justice Kennedy was referring both to the ineffectiveness of mandatory minimum sentences, as well as to the impact they have had on the criminal justice system and the community.
The consequences of mandatory minimum sentencing on criminal case processing have been significant, often in unintended ways. Legislatively mandated sentences undermine the independence of judiciary and shift the authority of crafting appropriate sentences from judges to legislators.
Judges are trained to consider the accumulated facts and circumstances of a criminal event, the characteristics of the defendant, and to use their institutional wisdom to develop a suitable sentence. The independence of the judiciary is a hallmark of the American system of checks and balances among the three branches of government. The discretion reserved to judges permits the consideration of such relevant factors as a defendant's personal and criminal history and his or her role in the offence, which can help an independent arbitrator determine just culpability.
However, mandatory minimums, in which legislators take on the role of judges and determine culpability largely by single factors, such as the weight of a drug or the presence of a handgun, usurp this independence and threaten the carefully orchestrated balance between the governing branches. Moreover, mandatory sentences frequently expose defendants to punishments substantially disproportionate to the charged conduct.
Mandatory minimum sentences also threaten the independence of the United States Sentencing Commission, an agency in the executive branch. In the Sentencing Reform Act of 1984, the legislature created and charged the commission with developing a comprehensive set of federal sentencing guidelines, using evidence-based analysis to calibrate a punishment adequately reflecting the seriousness of the criminal event.
However, the passage of numerous mandatory minimum sentencing laws has created a situation in which the more punitive statutory punishment trumps the suggested guideline range. Thus, defendants of lesser culpability, who might have faced a shorter guideline sentence, are subjected to the statutory minimum.
By exposing less serious offenders to punishments equal to more serious offenders, mandatory sentencing creates disproportionality that subverts the commission's underlying goal to craft just and fair sentences that accurately reflect the seriousness of the offence. Moreover, the commission has been compelled to adjust the guideline ranges upward to link the lower bound of the guideline range to any applicable mandatory minimum sentences. In doing so, the commission is adjusting sentence length, not according to evidence-based research but to the political will of the legislative branch.
The quintessential example of mandatory sentences resulting in disproportionate punishment is the recent case of Weldon Angelos. Mr. Angelos was arrested in 2002 after undercover agents made two controlled purchases of one-half pound of marijuana. An informant reported that during each of these purchases, Angelos had a firearm present. Although he never brandished the weapon, it was reported to be present in the automobile during the first purchase and in an ankle holster during the second purchase. When agents searched Angelos’ home, a handgun was found in a bag containing cash.
The presence of the handgun at the two controlled buys and at the house exposed Angelos to federal mandatory minimum sentence enhancements that are triggered when guns are present during a drug transaction, whether or not they're used. Each instance in which a firearm is present is counted separately. Consequently, Angelos faced a five-year mandatory sentence for the first controlled purchase and then two consecutive 25-year mandatory minimum sentences as a result of the second purchase and the firearm found during the search of the house. Bound by law to apply the 55-year sentence, the judge called the punishment “unjust, cruel, and even irrational”.
The Angelos case highlights fundamental flaws in mandatory sentencing, as defendants frequently are exposed to severe sentences out of proportion to the conduct with which they have been charged, while judges sit powerless to consider the circumstances of the offence and amend the punishment accordingly.
Mandatory minimum sentences are generally triggered automatically by a single element of a criminal act. For example, drug mandatory sentences are triggered solely by the weight of the substance. Potentially mitigating evidence addressing the sophistication of the role the defendant plays in the drug enterprise cannot be considered in determining whether a mandatory minimum sentence applies. In the case of a handgun enhancement, the mere presence of a weapon is sufficient to warrant a mandatory sentence. In cases such as these, the prosecutor's determination of what conduct to charge and how to charge that conduct is the single most important element in a criminal proceeding. Prosecutors, in making a charging decision, have the discretion to alter the outcome before the proceedings begin. This is an unconscionable tilting of power in an adversarial system that functions on the premise that equally situated parties are necessary to adjudicate a case fairly.
An additional problem raised by mandatory minimum sentencing is evidenced by prosecutors' arguments that these sentences are an important tool in pretrial negotiations with a defendant's counsel. A prosecutor has significant leverage in conducting negotiations and eliciting a plea bargain if the defendant is facing a statutorily mandated five-year sentence. This permits a prosecutor to use the proverbial carrot-and-stick approach: offering a plea deal to a lesser charge associated with less serious conduct, or threatening a mandatory minimum sentence should the defendant choose to exercise his or her right to trial.
This inequity in negotiating posture, exacerbated by the potential exposure to a mandatory sentence, perverts criminal case processing in two ways. First, defendants frequently do not face sentences that are reflective of their actual conduct. This is tragic in a criminal court system that is supposed to be premised on rationality and predictability. Instead, mandatory sentences create uncertainty and disparity in outcomes. A governing principle behind the Sentencing Reform Act of 1984 was to institute fairness in sentencing and equality between two similarly situated defendants. This goal is undermined by mandatory sentences.
Secondly, approximately 95% of the 70,000 annual federal cases are handled via plea bargain. However, the likelihood of being offered a plea is dependent on where a case is adjudicated and the type of offence with which a defendant has been charged. Moreover, the race of the defendant has been demonstrated as a significant factor in determining whether an individual receives a mandatory minimum or is offered a plea bargain. African American defendants are more likely to receive a mandatory minimum sentence and less likely to benefit from a substantial assistance or safety valve departure. The unchallenged discretion of the prosecutor makes it increasingly difficult to combat these inequities in sentencing, and mandatory minimums have only complicated matters.
Plea bargaining also reduces the likelihood that issues of innocence or misconduct by law enforcement during arrest will receive an airing before the court. Tactics of investigation and apprehension by law enforcement officers raise critical issues of constitutional protections regarding arrest, interrogation, and the procurement of evidence. Determining the legality of one’s arrest requires skilled representation of counsel and can often result in prolonged pretrial proceedings. Moreover, it is at this point where a defendant’s innocence may face its test before a judge. However, in order to litigate any of the aforementioned issues, a defendant frequently must decide to forgo an offer of a plea bargain and face a potentially more severe mandatory sentence in order to pursue his or her constitutional right to trial. A defendant seeking to pursue a court decision as to the validity of an arrest faces a trial penalty, in which the spectre of a longer mandatory minimum sentence will be the result of exercising this right. This fact often leads defence counsel to advise clients to accept the plea deal rather than challenge their arrest—yet another situation in which mandatory sentences thwart the guiding principles of fairness and equity in the criminal court system.
Mandatory minimum sentences have been shown to have a disproportionate impact on African American defendants. A study by the United States Sentencing Commission found that African Americans were 21% more likely to receive a mandatory minimum sentence than white defendants facing an eligible charge. The most egregious example of the racially disparate impact of mandatory sentences is federal cocaine sentencing, in which the possession of five grams of crack cocaine, about the weight of two sugar packets, can result in a five-year mandatory sentence, while possession of the same quantity of powder cocaine, a pharmacological equivalent, amounts to misdemeanour possession and no sentence to incarceration. Despite the fact that approximately two-thirds of regular crack cocaine users are white or Latino, 81% of persons sentenced in the federal system for a crack cocaine offence were African American.
These disturbing trends reflect differential patterns of law enforcement in which the war on drugs has been pursued disproportionately in communities of colour. As if this fact was not pernicious enough, the imposition of mandatory minimum sentencing exacerbates the impact of these practices by codifying racially disparate arrest patterns in federal statutory law.
I'd like to conclude by saying mandatory minimum sentences are a counter-productive approach to combatting criminal offending. They have been demonstrated to have little impact on rates of crime while having detrimental consequences to the operation and fairness of the American criminal justice system.
Moreover, with stiff penalties already residing within statute as well as within the federal--and state, where appropriate--guidelines, there is little need for the additional enhancement of a mandatory sentence.
Regarding firearm offences, the United States Sentencing Commission reports that the average time served for firearm trafficking and possession has doubled since the implementation of the sentencing guidelines in the mid-1980s. This increase in punitiveness has resulted independently of mandatory minimums. Thus, it is clear that a legislature can respond firmly to criminal offending and levy stiff sentences via sentencing guidelines while also preserving the independence of the judiciary and the integrity of the criminal court process.
On a personal note, I have lived and worked in the United States all my life, and I have worked on this issue. I do find it very disturbing to see a lot of the criminal justice practices that we have adopted over the last thirty years, despite the really extensive documentation of the failures and the costs...to see other countries picking up this language and picking up these practices. As if it's not tragic enough, the consequence to the American public, being responsible for exporting these practices internationally would add an additional burden, and it would be something that I really hope you take into very strong consideration.
Mr. Kulik, I appreciate what you said on aboriginal people. I'm not going to ask about it, though, because we've heard it before and we all agree, at least on this side.
The Liberals' basic goal in all this is to make Canada safer for the victims, so they're not reoffended against, or for other citizens. And we're making our decisions based on facts, not on people's misconceptions or rumours or emotion.
We've had a great deal of evidence. It's been wonderful.
And it's great, Mr. Doob, to have you here because I know you're one of the acknowledged experts. And you're not just talking about one paper because you have done a review of all the recent literature, so it's much more broad. There were only two pieces of fact-based evidence that we had that suggested this law might be helpful and you have debunked them both.
I just want to put on the record that this committee now has no scientific, fact-based evidence suggesting that any MP should vote for this bill.
I have a question on something you didn't address at all. Mr. Kulik, Mr. Doob, and maybe even Mr. King could answer this.
A lot of witnesses have suggested, including the police, that when you put a person in prison, the longer they're in prison, the more criminal tricks they learn, the more they get socialized to criminal life, the less hope there is for a normal lifestyle, the less socialization they get with their family, and indeed, generally, they become more dangerous as opposed to less dangerous. But I don't know, once again, if we're going on fact-based evidence. No one has mentioned that topic at all. I wonder if there have been any studies done on that.
My first comments are for Mr. King.
Thank you for being here today. I carefully read your briefs. Mr. King, I was a defence lawyer for 25 years, practising criminal law, and I completely agree with you.
I am tempted to ask you a question. How do you go about reintegrating into society an individual sentenced to 55 years in prison? If he is 25 years old when he enters prison, he will leave prison at the age of 80. When I think of that happening in Canada, my reaction is that this is completely irrational and unreal.
I read your brief carefully, and I paid particular attention to comments about sentencing made by Justice Anthony M. Kennedy at a meeting of the American Bar Association, which you quote. This is an issue of great concern to us in Canada.
Our colleagues opposite tabled this bill, and you will hear them talk about street gangs and repeat offenders who get out of prison. People in the party which is currently in office claim that nobody here ever talks about the victims. I have read all of your briefs and I have just one question for you. If each of you could quickly answer my question, that would most appreciated.
We have evidence beyond a reasonable doubt that long prison terms just don't work. I don't see how we could have more evidence of that.
What can we do or recommend as legislators? How do we go about reducing the crime rate? I have read and reread Mr. Doob's statistics, and I read the brief: there is a drop in the crime rate. There seem to be peaks: the rate goes up, and then suddenly, it goes down again. We know that there will always be crime in society. That has been a reality since the beginning of time. But how can we prevent sharp rises in crime?
The example of street gangs is the most obvious, because that sort of thing is in fashion now. In Quebec, we have criminal biker gangs, and we still have them.
Do you have any idea what we should be doing to try and bring down the crime rate?
I realize I took a lot of time, but I tried to leave you one minute each to answer the question.
My starting point would be to say that if we're willing to do mandatory minimums, that means we have money on the table to deal with crime. Let's talk about that money.
It seems to me that if we're talking about an extra 1,000 prisoners in this country, we're talking about $80 million. Where are we going to put $80 million? That's the question that I think you should be asking yourselves. My answer to that would be that there are lots of places, and previous speakers have mentioned these. One of them would be schools. A school is not something just in terms of learning. The school is an institution in which people can thrive and can move on to other things. I'd look at it in terms of housing. One of the things that we know is that instability of housing in young kids and in adolescent kids is likely to lead to increased offending. And I would look at it in terms of various kinds of very fundamental public health issues that would deal with this.
The problem is that we tend to look for quick fixes, something that's going to fix the problem by tomorrow. I was recently reading an overview of the American experience in gangs, because a lot of what's driving the discussion at this table today is gangs. What this pair of authors, who are really experts in this area, were saying is that the United States, with all of the problems of gangs historically, has squandered the opportunity, because both the programs and the evaluations have focused on quick-fix kinds of things, where essentially the model is to suppress rather than to deal with the problems.
There are some areas that are very difficult. I don't have the answers on what to do, for example, in the area of gangs. But things like housing, like the communities, like schools, like public health, like opportunities and real jobs are the kinds of things that have benefits in addition to the crime prevention benefits.
So my answer on the $80 million is that I would want to have those folks sitting at the table, perhaps including the police, for example, because there are things they can do. I would ask them where we are going to get the most effect. One of the things that we know from the research is that we would almost certainly get the least effect from programs such as mandatory minimum sentences.
Thank you, Mr. Chair, and thank you to all the witnesses for appearing. I've listened with interest to all of your testimony.
I want to read something from Statistics Canada this past year that says that the national homicide rate rose for the second straight year in 2005, reaching its highest point in nearly a decade. Firearms-related killings increased for the third year in a row. There were 658 homicides last year, 34 more than in 2004. Of these, 222 were committed with a firearm, up from 173. They report that 107 homicides were believed to be gang-related in 2005, 35 more than in 2004. Two-thirds of gang-related homicides involved a firearm, most often a handgun.
What all that tells me is that it's beyond dispute, in my opinion, that what we're doing currently is working. That's what it tells me. I'm not satisfied with those statistics, and I think we can do a lot better.
Mr. Moriah, I listened with interest to what you had to say, and some other witnesses have made the same point. A piece of legislation can't be the be-all and end-all. We have to work from all angles to tackle the problem. I agree with you.
I think Mr. Doob or someone mentioned jobs, opportunities. No one is against those things. We're all in favour of jobs, opportunities, and resources. Some of the things we've done have been to put more law enforcement officers on the streets and at the border, dedicate resources to help prevent crime, and focus specifically on preventing at-risk youth from getting involved in street gangs and drugs.
We can do all those things, but I haven't heard from any of the witnesses that there's any place at all for the Criminal Code. I didn't hear any suggestions of how we can make this bill better. You say you're against the bill, but we do in fact have a Criminal Code that deals with a situation when, despite all our best efforts, someone has taken a gun and shot someone.
We can talk about root causes all we like and we can go back as far as we like, but at that moment that someone has taken a gun and shot someone, I don't think we should make excuses for that person. At that point, there's a role for the criminal justice system, I believe. Some of you may disagree, but I'd like to hear what you propose. What role do you see for criminal justice?
I'll give you all an opportunity to speak to that.
I do have to mention something. Concerning Dr. Levitt, we've heard testimony that mandatory minimums do deter, and we've heard testimony that they don't. Dr. Levitt, of course, is not here to defend himself. He was one of Time Magazine's 100 people who shape our world, for 2006. He is a senior fellow for the American Bar Foundation. Without him here to defend his own work, I don't quite take what my colleague Mr. Bagnell said, that all evidence that this would work has been debunked. I think you've made arguments on one side. There's other work on the other side. I would like some comment on that.
Mr. Kulik, you said your organization supported , and you oppose this Bill . Bill C-68 was, overall, misguided. I think history now, after ten years, has looked at it as a total failure. The problem with Bill C-68 is that it went after law-abiding citizens and said you have to line up and register your duck gun, and it ignored gangs that use handguns on the streets. Those people did not register their gun. The evidence that I just cited from Statistics Canada says people continue to get handguns.
We talk about resources and what this bill will cost. has cost over $1 billion. Imagine what we could have done with $1 billion wasted registering people's legal firearms. I have to say, on the cost associated with Bill , firearm cases are, I think we'd all agree, very serious incidents, but they represent less than 1% of the national caseload. So what we're talking about overall, globally, in cost, we have to put in perspective.
I've touched on a number of bits of your testimony, I think all of you, except Mr. King.
I do want to mention one thing. This is not an American three-strikes rule. I appreciate hearing the American perspective, but this bill is focused on specific crimes. Gangs committing crimes with handguns--that's where the problem is. It's not a broad three-strikes rule. We don't have broad application of mandatory minimum sentences. It's very focused. And we've seen evidence that says when you have very focused use of mandatory minimums, it works, because it takes those who continue to commit crimes off the street.
So I'd appreciate all your comments on your testimony.
If I could start, I'd like to respond to each of those.
Obviously, I see a role for the criminal justice system when somebody has done a serious crime. I have no difficulty. It seems to me that we have to realize that the overall criminal justice system is a very important institution. It seems to me that what we are doing with the criminal justice system, when somebody has committed a crime, is we are looking for a fair way of apprehending and punishing that person. I have no problems whatsoever in doing that, and I believe very strongly that the sentences handed down should be proportionate to the harm that's done.
What I think we should realize, though, is that having the criminal justice system and criminalizing certain behaviours is important. The possibility that somebody is apprehended is important. The size of the sentence that's handed down appears from an enormous amount of research not to affect the levels of crime. So what we're talking about is not in any sense to say that the criminal justice system shouldn't exist, or that we shouldn't punish people, or that when they do serious things, we shouldn't punish them severely. What we're saying is don't look to changing the sentencing structure in the Criminal Code as a good way of solving the problem of crime.
The second thing I would like to do is talk about Steven Levitt. In the formal brief that's before you and that has been translated, I quote the responses Steven Levitt gave to the fact that he suppressed data. I quote it in its complete form. It's there available to you. So is his complete article. I'd invite you to read that as well as the other responses to it.
The difficulty, in any case, is that my argument is that if everything hinges on a favourable assessment of Steven Levitt's article, we're barking up the wrong tree. What we should be looking at is the overall impact of this kind of sentencing regime, and that impact has been studied in a number of places.
The final point I want to make is that everything has costs. I agree that there are other ways, and that this could be seen as part of the mix. But what we have to say is whether this is a good investment and the best investment in terms of the impact it's going to have on public safety. I think the evidence is in that it will not be.
In terms of the deterrent issue, he focused largely on Steven Levitt's work. Steven Levitt is, as I said, in large part because of the book Freakonomics
, a very well-known person. There are very serious concerns above and beyond this particular study that Professors Webster and Zimring and I did. There are very serious problems that have been raised about a number of different things that Steven Levitt has done, including things like simply not presenting the results of analyses, which are in fact the ones that he describes. Conveniently, certain variables are left out of the equation, which changes dramatically what his findings are.
Mr. Lee, in terms of deterrence, depended largely on two things. One was Steven Levitt's assessment, which I'm saying is fundamentally flawed in large part because of the rather cavalier fashion in which he deals with data, and the second one is the issue of Florida. I couldn't tell from the PowerPoint when it was, and I wasn't able to find on the web the transcription of this committee, so I wasn't able to see when it was Mr. Lee indicated that the change in the law in Florida happened.
The two figures I have here are from a much more detailed study than Mr. Lee's study, because what it did is not only just plot the crime during the 1990s, but it also did quite a sophisticated statistical analysis on overall crime, on violent crime, on homicides, on homicides with firearms, and, again, found no evidence whatsoever.
To answer your question, I go back to Mr. Lee's testimony before you, and I wonder what it was he was saying. These are all public domain articles in refereed journals that are available on the web. These are not in obscure places; they are in the major journals in criminology. He presented information to you that was accurate in the sense that he and I are talking about the same overall trend in Florida crime. The figure I presented from a research piece happened to have in it when the law changed, and it also went back further. My feeling is that what you have to do is look at the overall figure. I think when you do that you see very different things.
Similarly, for example, saying crime is higher than it was in 1962, we do know that. There is no question of that. The question is, what's the relevance of that to ? It seems to me that one has to say not whether crime is going up or crime is going down. I would be making exactly the same arguments to you about mandatory minimums whether crime was going up or down. That's not relevant. They either work or they don't. It doesn't matter whether crime is going up. If it's going up or down, we should be doing something.
To go back to the earlier question that was put to me, it does seem to me that when we have 600-and-something murders a year in Canada, that's too many. I don't care if it's already going down; I'd argue it's too many. So we can have fewer maybe in 2006 than we did in 2005, but that doesn't make me feel any better. We should be looking for effective ways of dealing with crime whichever direction it's going.
Mr. Lee was dependent on, in a sense, saying crime is out of control and we've got to do something. We've got to do something, but let's do it effectively.
Thank you all for being here.
Welcome, Mr. King, from my home country before I emigrated to Canada in the 1960s. Of course, by looking at you I can see I probably spent my 32 years down there when you were but a twinkle in your mom and pop's eyes. But I'd like to welcome you.
I was kind of pleased to see Mr. Doob with his charts. I think it's always interesting to go back to the 1960s. I think it's also good to go back to the 1920s, you know, this steady incline and then sort of leveling and peaking and all that sort of stuff. I find it really interesting.
Most of the witnesses that we have here I think and what we as politicians are trying to do is answer the pleas of the public. Too many people are dying because of guns and gangs. What are you guys going to do about it? We want these people off the street.
If you ask the public what we should do with these people who are shooting people in Toronto, probably almost 100% will say “Put them in jail.” “Are you willing to pay for more jails? Are you willing to pay the extra costs? Absolutely. I want my kids safe.”
Now, we're talking about a very focused thing in this Bill . We're not talking about a broad range of how we should deal with this. The police like what we're doing. The victims are supporting what Bill is doing. And I think the public at large is appreciating what we are doing.
People like yourselves come in, and I understand you want to get to the root cause as well. I've talked about the root causes a hundred times. You don't really want to get to the root causes with these issues, but if you did, then you would do something about alcohol. It's a major cause. They tell me that 80% of the people wouldn't be in prison today if it weren't for booze and drugs. I don't know if any of you can, but I can't think of one root cause that justifies anybody picking up a gun and shooting somebody. I cannot think of a root cause that would justify that.
Through that chart, Mr. Doob, that you've shown, we've already made a lot of decisions that help make that climb. I'm talking about the days in the States when they had 21 years for drinking. It went down to 18 for awhile; all hell broke loose in the schools, and now I think they're back to 21 all across the States. They're trying to do something about root causes. I appreciate that.
I'm trying to point out.... In Warkworth Penitentiary out here, it's full of sexual offenders. The last time I was there--I believe you were here that time with me, Mr. Chairman--there were 745 sexual offenders in this place. I visited with lots of the inmates. Of those who sexually attacked the children, almost to a man, they wouldn't be there had they not got hooked on child pornography. They started overusing it, and they got to the point where they had to act out their fantasies, driven by child pornography.
So you come here and you try to fight child pornography, but the government for the last thirteen years has brought things forward and the courts have decided, “Well, that's not quite good because it might infringe on our freedom of expression. Well, you can't do it that way because there might be some artistic merit. Well, there might be some public good. Well, it might serve a useful purpose.”
I think going to the root causes is a futile exercise in this country because we're forever worried about somebody's rights being infringed on, so we never get the job done. For thirteen years now I've asked the government of the past, and I'm asking this government today, to come up with something and get to the root cause of those kinds of offences. Stamp out child pornography. It's not getting anywhere because somewhere some court will decide, “Wait a minute, that doesn't meet the charter test, or that isn't exactly the right thing to do because you'll infringe on....”
My whole message to you folks is that I appreciate you being here, but I don't think you're really focusing enough on the issue of Bill . The public outcry is, “Do something about gangs and guns”, and it's very focused. I think it certainly is not the answer to all the crime that is happening. It's maybe not going to reduce crime, but those who are in jail are not going to do it again.
It's an effort by the politicians to try to accomplish something that (a) the public wants, because we're the servants of the public, and (b) the victims want, because I happen to have a lot more concern about victims than I do about criminals, and (c) is the right thing to do.
If it can be done better, we've got to work at that as time progresses, but we need an immediate answer to guns and gangs and crime, and I think it has to be found through . We can talk about all the issues that we've talked about, but they will not stop if we don't take some serious, concrete action.
Thank you, Mr. Chairman.
By the way, I'm not the Mr. Lee referred to earlier in the testimony.
Mr. Moore referred to the recent spike in firearm homicides across the country. Those are accurate statistics for 2004 and 2005. We've been through this little exercise before. I do want to let the record show that in Toronto, at least, the firearm homicides for 2006, up to the month of November, had dropped about 44%--a huge drop. Hopefully that shows the previous two years to be a spike, but time will tell.
I want to induce a response, if it were there, perhaps from Mr. King. With regard to the reference to the Kessler-Levitt study, just because this guy Levitt was on the front of some magazine and wrote a book called Freakonomics and was recognized as a very valuable contributor doesn't mean we have additional evidence on the issue of mandatory minimums in sentencing. I was just going to ask...and you may during your answers want to say yes, there is more evidence from Professor Levitt or Kessler or whatever. If there isn't any other evidence that's relevant, that's okay; if there is, we should try to take a look at it.
I have two questions, one to Professor Doob and one to Mr. King. With regard to sentencing rates, we've seen the crime increase from 1960 to 1992, and then it starts going down. Is there any evidence that fluctuations in sentencing rates were a factor in the increasing crime rate? We've heard about a lot of other factors of crime, but were sentencing rates ever seen or studied to be a factor in the increasing crime rates for 1960 to 1992?
Secondly, in your work in sentencing, are there any real benefits seen in legislation like this? Does increased incarceration, in a targeted way, as Mr. Moore refers to it, provide any benefits at all? For example, will it enhance appropriate incapacitation for the really bad guys? Will an extended intervention in an offender's life better assure access to programming that would allow the offender to get things turned around--go straight, as they sometimes say?
Thirdly, would increased incapacitation allow for the extraction of an individual from a crime context? Again, that's a neighbourhood where that's the way you get things done. You extract the individual, you get him convicted, and you put him away for extra time in the hope that programming might be the intervention needed to break the cycle.
I don't believe those things do happen, but if there's any evidence that you've come across in your studies and your extensive work, I would like you to please help us out.
I will take a couple of them. The ones that I think are more appropriate to Professor Doob, I might pass on.
On the Levitt question, I'm actually equally as staunch a critic of Steven Levitt as is Professor Doob. And no, I don't believe any other work exists. In fact, I believe there's really a common thread of disingenuousness through his work, and it's been exposed frequently, by Mr. Doob today, as well as by some others.
On the incapacitation issue--and Professor Doob will probably expand on this--incapacitation has an impact if you take somebody out, but we're talking about already having stiff sentences that exist. That person is already being incapacitated. So the question is, is this a mandatory minimum in some sort of way? Is this going to result in somebody being incapacitated for a longer period of time? In most cases, if you have stiff sentences that exist, that's not going to be the case. In particular, as far as drug crimes are concerned, we've seen that incapacitation really has no effect whatsoever, whether it's for a short period of time or not.
The sentencing issue leading to an increase in crime from 1960 to 1992.... I haven't seen any research leading to that, but I have seen a new strain of research that's emerged since 2000, that's looking at the formation of social control, at informal means of control in social capital within low-income communities where there's high-density incarceration. It has actually been demonstrated in a number of American cities, in a number of different contexts, that there's a tipping point. When incarceration rates reach a certain point within some of these communities--and there are neighbourhoods in American cities where up to one-fifth of the young males in that neighbourhood are incarcerated or in the criminal justice system on any given day--there's a tipping point, and we actually begin to see crime rates increase. It's speculation, and that is as a result of an erosion, really. In any sort of neighbourhood, the constant disruption of people moving in and out of the criminal justice system actually has what would be called statistically a positive effect leading to an increase, which is actually a negative effect.
First of all, on the issue of the Toronto gun crime, for example, which seemed to have galvanized everybody a year ago, again, I don't want to feel like anybody should relax about the seriousness of crime because gun crime might have gone down. My point is that we're not going to fix that. Whether it fixes itself or it is fixed because of some other reason, we're not going to fix it with sentencing. So if Toronto gun crime goes down, we still have a problem with guns and we still have people being killed. We should take that seriously. Again, whether crime is going up or down, we do all hope it obviously is decreasing.
I'll talk very briefly about the issue of incapacitation. The difficulty is, when you're talking about an incapacitation strategy, what you're really saying is something in addition to what is deserved by the crime. These are all serious crimes. These are all going to get very heavy sentences. None of us sitting here is suggesting, ever, that what we're talking about is taking these very serious crimes...and suggesting that they shouldn't lead to imprisonment. Obviously, what we're talking about is that the penalty should fit the crime, and I think there's a general consensus of this.
The final point I want to make is that the criminal justice system is not good at treating people. What we may be able to do with a sensible correctional system is to do the best we possibly can. If we're serious, this is a very expensive, individualistic endeavour of taking somebody who is committing serious kinds of crimes, putting them in prison, and providing them with programs. Again, if you look at it, if we're really interested in providing programs to people, this is probably not the way to do it. As I've said, we have to remember the ones we're talking about are going to be in prison anyway.
The problem that Mr. King has already mentioned is with drugs. The simple imprisonment policy, for example.... What you simply get in these circumstances, particularly with street-level trading of drugs, it seems, is simple replacement. Somebody else comes in and sells the drugs, so we haven't really accomplished anything; at worst, what we may have done is recruit another person into the business. So I think the feeling around all of us is that we're looking for a good solution with our limited resources. Certainly there are some studies published, in addition to Levitt's, that would suggest that harsher sentences will deter, but those are the exceptions. The exceptions tend to be, in effect, ones that are cherry-picked from studies, or cherry-picked examples that would be part of that last study I talked about in my oral remarks today.
So I think we have to understand that the evidence is fairly clear in one direction.
I would certainly support what Professor Doob just said. I have a couple of additional comments.
I don't think Mr. King referred to it, but in American prisons there are major issues with gang membership. In a number of institutions, many institutions, the gangs are running the institution, particularly in the west in the States, in the midwest. We've started seeing in the last number of years in Canada the same kinds of issues starting to grow, though not at the same level.
I'm not suggesting they shouldn't be in prison, but simply imprisoning them, removing them from the community, doesn't solve the gang issue. In fact, I think there is some evidence that would show that some of the gangs are actually born and go back into the community after. I don't know if we're going to solve it in a simple fashion. I don't think one particular mandatory sentence is going to change anything.
The reality, for me, at least, is that being a gang member, the individual, who may not have any other reason...it gives them stature, and it gives them stature in that particular group, which is basically and usually a violent group. We need to somehow focus on replacing that kind of reward situation with a more lawful one, and that is not easy. It's very difficult. Obviously, our friends in the States have been working on this, and Canada has been working on this. It's related to root causes and all kinds of factors. We don't have a silver bullet, to use the old expression, on how to solve these kinds of problems. We have to keep working on it.
I want to thank you for staying so long. We were supposed to conclude the meeting at 5:30 p.m. I have a question for you with respect to judicial discretion — in other words, judicial power. A great many witnesses have come before the Committee to say that we are attacking the power or discretion of judges.
But I would just like to make a few comments by way of introduction. Under the American system, judges are elected, with the exception of federal judges. If I had the power to elect judges, perhaps we would not be here trying to resolve this problem. In Canada, all our municipal, provincial and federal judges are appointed by politicians. When they are appointed, they are given the right to take action under the Criminal Code. If a judge is given the right to take action under the Criminal Code, it is Parliament setting the parameters within which he has to work. For example, we require this or that type of evidence. The principle of evidence being proven beyond a reasonable doubt is a parameter. We tell the Crown prosecutor that he wants to convict someone, he will have to prove beyond a reasonable doubt that the individual in question committed the crime of which he or she is accused. So, we set parameters.
We also give judges certain parameters. We tell them that if they believe, beyond a reasonable doubt, that the accused is guilty, they will have to do certain things. But because judges are appointed for life, they can do whatever they like. The only avenue of appeal is the Appeal Court. I can assure you that in the United States, a judge who decided to do whatever he liked would be removed from his position within two years. I'm not talking about federal judges. There is a big difference between the two systems. That changes the dynamic. In Canada, we are different.
And there is a second point I want to raise with respect to judicial discretion. Mr. Moriah, I related somewhat to your comments. We live in Canada, with a population of 32 million. I am from the province of Quebec. I sometimes feel as though I am a victim of discrimination because there are proportionally more Francophones in prison in Quebec. I see that as a problem. So, in that regard, I am on the same wavelength with you. The fact is that there are more Francophones in prison in Quebec.
People often talk about the different groups there are here in Canada. Mr. Bagnell often talks about the Aboriginal peoples. There are Aboriginal groups in Northern Quebec; there are 200 of them. And when someone commits a crime, we have to get that person out of there. These groups are overrepresented in places where we send people who commit crimes. Because there is no road, we have to go and get that person in an airplane, in order to bring him back to Montreal to put him in prison. It's a bit of a problem. We live in a rather strange country.
I would be interested in hearing your comments, because you are a lawyer. Do you disagree with the idea of limiting the discretionary power of judges? That is our role. In reality, it all comes down to that. Bill C-10 applies to extremely serious crimes committed in serious circumstances. As Mr. Kulik was saying earlier, most of the people these legislative provisions will apply to were initially convicted in youth court, or at the provincial level, and then entered the federal system.
You are a lawyer practising in Toronto, Ontario, and I would like you to tell me whether you disagree with the idea that we can limit judges' discretionary power. That is an extensive power. It may be the most significant power a judge has when handing down a sentence.
It's a broad question in some senses, because when you're talking about discretion under Bill , there are a couple of things. First is the general issue of whether or not people believe judges are using appropriate discretion in dealing with sentencing issues. That's one of the things underlying some of the discussion we're having here about Bill C-10, and certainly about the push to implement mandatory minimums.
What we have to think about first when we're talking about judges' discretion is that they are experts to some extent in the field they're working in. They were appointed through a very good process in Canada in terms of the way we decide who our judges are going to be. So even though they are appointed, it's a very open and transparent process that is not as political as a politician choosing a particular person.
In terms of the actual use of that discretion, we have to realize judges' discretion covers a number of areas, as you've said, and particularly in sentencing you have to realize we're talking about mandatory minimums. But as some of my colleagues have said several times today, judges can always implement a range of sentences. The issue is whether or not we believe they're doing so appropriately and whether mandatory minimums will be the panacea to make sure they do so. From the information we have available, that doesn't happen, because what happens is the discretion judges have in terms of charging and determining sentences merely gets transferred to another player within the judicial system, whether it be the police or the prosecutors. What we have to think about first is that judges have the ability to give at least that mandatory minimum sentence, but they also have the ability to give a larger sentence.
What we have to be concerned about particularly for the African Canadian community, recognizing we have racism within our criminal justice system, is that any exercise of discretion should be done in an open and transparent manner. That's particularly important in sentencing because you have the ability to review sentences, to appeal them, to determine whether or not they are appropriate in any given circumstance. Unfortunately, when you have mandatory minimums that shift the judicial discretion to police and prosecutors, that process is no longer available, and that's particularly problematic for communities such as African Canadians, such as aboriginal communities that have disproportionately borne the brunt of a discriminatory use of discretion within the criminal justice system.
So, yes, we want to make sure judges use their discretion appropriately, but we have to realize they have processes available to do that. They have minimum and maximum sentences they can impose. More importantly, it's important that whoever is exercising that discretion is doing so in an open and transparent way that can reviewed.