Mr. Speaker, it is a pleasure for me to rise today to speak at second reading of Bill , which would further and severely restrict the availability of one of the most innovative but certainly controversial elements of our sentencing law, the conditional sentence of imprisonment.
Before describing the key provisions of the bill, please allow me to take a few moments to discuss the origin, history and rationale for conditional sentencing.
In June 1994, Bill C-41, Canada's first comprehensive reform and modernization of sentencing law and procedures since 1892 was introduced into this very House of Commons. Among its many elements was the creation of the conditional sentence of imprisonment. What this meant was that for a sentence of imprisonment of less than two years a court could and may order that it be served in the community under certain conditions and under supervision. It could only be done under the statutory conditions, such as the court being satisfied that the offender could serve the sentence in the community without endangering the population at large.
In other words, the conditional sentence was aimed at low-risk offenders sentenced to a provincial reformatory for a period of time of two years or less.
When Bill C-41 was tabled, Canada was in the midst of an unprecedented increase in the growth of prison populations, both provincially and federally. The federal inmate population, that is those serving periods of sentences of two years or more, was growing at twice the average long-term rate, with a 21.5% increase in the number of federal prisoners from 1990 to 1995. During that time, federal correctional costs exceeded $1 billion for the first time.
Canada's incarceration rate of 130 prisoners per 100,000 citizens was the fourth highest in the western world, which was quite alarming. Therefore, in the 1995 budget the then minister of finance for the then Liberal government had urged federal and provincial ministers responsible for justice to develop strategies to “for containing the growth of the inmate population and the associated corrections cost therewith”.
The Speech from the Throne in 1996 promised that the federal government would develop alternatives to incarceration for low-risk offenders, while focusing the more expensive “correctional resources” on the high-risk offenders.
This direction resulted in the establishment of a multi-year federal-provincial-territorial process called “The Corrections Population Growth Exercise”. Bill C-41, as it was introduced in that Parliament, and the conditional sentences in particular were seen as key to Canada's response to the significant growth in the number of prisoners.
A special study of the impact of conditional sentencing on prison populations was conducted by the Canadian Centre for Justice Statistics in 2001. In the words of highly noted and renowned Professors Julian Roberts and Thomas Gabor of the University of Ottawa, in a 2002 article in the Canadian Criminal Law Review, the results reveal:
||—that conditional sentencing has had a significant impact on the rates of admission to custody, which have declined by 13% since its introduction. This represents a reduction of approximately 55,000 offenders who otherwise would have been admitted to custody.
In a subsequent article published in the British Journal of Criminology, Professor Roberts, by this time at Oxford University, described conditional sentences as leading to the most successful decarceration exercise in the history of common law sentencing reform.
While the availability of conditional sentences arguably achieved the policy of restraint in the use of incarceration, it did so at considerable cost to the public faith in sentencing and the sentencing process.
Controversy has surrounded the conditional sentencing regime since its introduction. The sentence is seen by some as being too soft a disposition for offenders who are custody bound because it is no more severe or intrusive than a sentence of probation. As the legislation reads, the differences between probation and a conditional sentence are barely noticeable. The courts, moreover, may be unwilling to hand down conditional sentences in most cases because of that very perception, that if probation would be an appropriate sentence then the conditional sentence is probably inappropriate.
Some critics of conditional sentencing go so far as to say that the stated goal of conditional sentences, which was to reduce incarceration rates, had failed due to the problems it presented to the judiciary in properly applying conditional sentences. In fact, there is a series of appellate jurisprudence on conditional sentencing, and I will not give a law lecture today, but I invite any hon. members who are interested in the courts struggling with conditional sentences to read the Supreme Court of Canada's decision of 2000 in R. v. Proulx.
However, conditional sentences have been appropriately used in many cases, but there have been too many examples of a failure by the courts to balance the objectives of denunciation and general deterrence with the desire to rehabilitate an offender.
Due to legislation that allowed for those individuals convicted of serious offences to receive conditional sentences such as house arrest, judges have been handing down sentences all too frequently. This practice has caused an enormous loss of confidence in the judicial system by the public. We are here to serve the public and when the public loses confidence in the administration of justice, all hon. members ought to be concerned. The answer to this problem is to give judges guidance in sentencing matters.
There has been more than one legislative attempt to do so and to provide greater guidance to judges who are considering a conditional sentence. Members who have been here longer than I will recall Bill introduced by this Conservative government on May 4, 2006, which ultimately passed on May 31, 2007. However, sadly, it did not pass unamended.
The bill, as it was originally written, would have ensured that conditional sentences like house arrest would not be allowed for serious and violent crimes. However, sadly the bill was amended by the opposition parties in the justice and human rights committee. The amendments preserved conditional sentences for crimes such as possession of weapons for dangerous purposes, kidnapping, arson and impaired driving causing bodily harm and death.
Criminals who commit these crimes should be punished appropriately and, in my view, serve their time in prison. By restricting these crimes from conditional sentencing eligibility, Canadians will have a justice system that imposes sentences that fit the severity of the offence, properly deters serious offences and helps keep our streets safe.
With that history lesson, it brings me to Bill , the bill which under consideration before the House this afternoon. The bill would add new, clear provisions to the conditional sentencing sections of the Criminal Code to ensure once and for all that conditional sentences would not be available to individuals who committed serious violent and serious property crimes.
The proposed reforms would ban the use of conditional sentences for the following: offences for which the law prescribes a maximum sentence of 14 years or life; offences prosecuted by indictment and for which the law prescribes a maximum sentence of imprisonment of 10 years that result in bodily harm, involve the import/export, trafficking and production of drugs or involve the use of weapons.
It would also ban the use of conditional sentences for the following offences when prosecuted by indictment: prison breach; luring a child; criminal harassment; sexual assault; kidnapping and forceable confinement; trafficking in persons for material benefit; abduction; theft over $5,000; auto theft; breaking; entering with intent; being unlawfully in a dwelling house; and arson for fraudulent purpose.
It is expectation of our government that when this legislation comes into force the conditional sentencing regime will provide the correct equilibrium between the punitive and rehabilitative objectives of sentencing of low risk and less serious offenders.
In doing so, it should provide improved public confidence in the sanction and in the criminal justice system generally. It will send the correct message to both criminals and the law-abiding public at large that those who commit serious and violent crimes will no longer be entitled to conditional sentences such as house arrest.
Imagine an individual being convicted of arson and being able to serve the time in the comfort of that person's own home. It is barely imaginable. However, after the passage of this bill, this misguided sentencing practice will no longer occur in Canada.
On this side of the House we do not believe that house arrest is a suitable punishment for serious crime. Canadians I have spoken to do not believe so, either. Too many criminals, in my view, should never have been given conditional sentences in the first place. Moreover, too many convicts have breached the terms of those conditional sentences.
The solicitor general of Saskatchewan reports that 39% of criminals sentenced to house arrest were returned to jail for breaching the conditions of their sentences. Statistics Canada reported in 2006 that over 11,150 criminals were serving conditional sentences, 2,791 of whom were convicted of violent crimes, crimes against a person, 3,619 were convicted of property crimes and 2,062 were convicted of drug trafficking.
In my view and in the view of my colleagues on this side of the House, there are too many cases where individuals convicted of serious and violent crimes are serving conditional sentences. Criminals who commit these crimes should be punished appropriately and serve time in prison. By restricting these crimes from conditional sentencing eligibility, Canadians will have a justice system that imposes sentences that fit the severity of the crime, that properly deter others from committing serious offences and, most important, promotes safe streets and safe communities.
As I conclude my comments, I would like to remind all members of the House that they have a choice. A previous Liberal government introduced conditional sentencing that allowed serious and violent crimes to be eligible. In the last Parliament, the Liberal, New Democrat and Bloc opposition opposed previous legislation to end the practice of allowing serious and violent criminals to serve their sentences in the comfort of their own homes. However, this Conservative government is trying to ensure that serious criminals spend time where they belong: in jail.
Our government believes that the justice system should put the rights of law-abiders before the rights of lawbreakers. Whatever the leader of the official opposition may say when the cameras are on him, the record shows that the Liberal opposition members are soft on crime.
We call on the Liberals, both in this House and in the Senate, and all parliamentarians of all political stripes to listen to Canadians, to listen to their constituents and to walk the walk, not just talk the talk when it comes to being tough on crime. It is time for all parliamentarians to get behind the government's urgently needed safe street and safe community agenda, and for that reason I urge all hon. members to support Bill .
Mr. Speaker, I am happy to participate in the debate today in the House on Bill . It is at second reading. It is the beginning of what I hope will be an expeditious process to study this important change to sentencing provisions of the Criminal Code.
I can say at the outset that the Liberal Party will be supporting the bill at second reading, to send it to the committee. We obviously want to hear from experts and those involved in the criminal justice system as to what the effects of restricting conditional sentences will be.
However, certainly at first blush, we think that there is a lot of merit in restricting the use of conditional sentences, particularly for the most serious crimes. That is why when it comes to a vote at second reading, hopefully expeditiously, we will be supporting the legislation.
Bill amends section 742.1 of the Criminal Code to eliminate the reference to serious personal injury offences and restricts the availability of conditional sentences, colloquially known as house arrest, for offences for which the maximum term of imprisonment is 14 years or life imprisonment, and for other specific offences prosecuted by way of indictment for which the maximum term of imprisonment is 10 years.
The member for , the and others often refer to conditional sentences as house arrest. There can be a great deal of misleading information about in fact what the imposition of such a sentence represents. Defence lawyers have told me that frequently a conditional sentence or a term of imprisonment in the community, a house arrest as it is colloquially known, may be for a longer period of time than would be a sentence in closed custody, a sentence of incarceration in a correctional facility.
As the House will know, when somebody breaches the terms of a conditional sentence and is brought back before the court, for example for breaching the terms of house arrest, for leaving their property except during certain hours as deemed allowable by the judge, or for a breach of whatever nature, even a minor breach of a conditional sentence, the presumption is then that the person will finish the remainder of that sentence in closed custody.
I accept that as a reasonable presumption. If the court decides to give someone a break on a conditional sentence because, in the opinion of the court, the person does not represent a threat or a risk to the community and because rehabilitation can be better served in the community, then if one chooses to breach the terms of that conditional sentence it seems reasonable one should then face the rest of that sentence term in closed custody. However, as I said, that can often represent a longer period of time.
Therefore the idea that conditional sentences are handed out to serious offenders by courts that then allow people to go home and serve their time on their sofa is a mass simplification of a necessary tool for the justice system.
That being said, I think all members of the House can acknowledge, and other members who have spoken on this issue have correctly pointed out, that the judicial system falls into a loss of public confidence when the imposition of conditional sentences applies in cases that appear to be unreasonable, in cases where for example we have serious white-collar crime, serious fraud involving in many cases millions of dollars or as I said earlier, cases involving violence or personal injury.
I think we all accept that those who commit the most serious crimes should face serious consequences. To restrict the ability of courts to use conditional sentences in those circumstances can in fact be very reasonable.
As I said a moment ago, there is a mass simplification of conditional sentencing, particularly by this government which contends that various types of offenders sentenced to imprisonment are simply sent home, in their communities.
Things are not that simple. I was somewhat surprised to hear the member for say that, in the vast majority of cases or at least many cases, judicial discretion had not worked.
We are not as demanding of judges as the Conservative Party seems to be.
The time has come, and I accept responsibility for that, to tell our courts that, as many media have reported recently, those who commit some of the most serious crimes, often economic crimes, and white-collar criminals are not facing severe enough sentences. We believe that it would be appropriate for Parliament to decide to send our courts a very clear message by curtailing or limiting the judges' ability to impose conditional sentences for such crimes.
Limiting judicial discretion is something the government is really fond of. I was amazed to hear about the recognizing that his strategy was to build new prisons and expand existing ones. The vast majority of inmates serve their sentences in prisons under the purview of the provincial governments.
I would like to point out a grave concern I have with respect to Bill . Should the number of offenders facing sentences of imprisonment in correctional establishments rise, then we as a Parliament, and certainly the government, have a duty to make better programs available in these establishments, and I would go as far as to say a duty to share with the provincial governments the costs associated with these changes to the Criminal Code.
The government likes to increase the number of people, convicted persons, who will face prison in closed custody and correctional facilities. At the same time I do not think the government has taken sufficient responsibility with provincial authorities to share the burden that these changes represent to provincial correctional systems.
I can use something from my own province of New Brunswick that happened last week as an example. The Government of New Brunswick had to send a memo to judges in the provinces indicating that they could no longer incarcerate people on intermittent sentences, those serving time for example traditionally on weekends, because the provincial jails were full.
A lot of this has to do with those waiting in correctional facilities pending their trial, those on remand, as it is known, which is also in many cases a situation that needs changes. That is why we have supported changes to restrict the ability to grant double time in remand circumstances. However it is not good enough to simply change the Criminal Code and tell the provinces to deal with it or tell the Correctional Service of Canada to deal with it.
Last week I had the opportunity to talk with people from the Correctional Service of Canada who work at the Dorchester Penitentiary in my constituency, at the Shepody Healing Centre, which is the psychiatric hospital in that medium-security federal institution and which looks after federally incarcerated inmates from all over Atlantic Canada as well as from some provinces such as Quebec. They tell me they do not have sufficient resources now to look after the seriously mentally ill inmates who are incarcerated or even those who are found not criminally responsible but are incarcerated for security reasons at a hospital like the Shepody Centre in Dorchester.
To make changes to sentencing provisions is part of the solution, and the government likes to focus on tougher sentences. Where it falls down and where Bill in our view does not do enough is in dealing with some of the factors that lead to a criminal activity or to criminal conduct. A government that cuts, as the government has, the crime prevention funding and at the same time talks about building larger prisons I think has missed the important balance that is necessary in an effective criminal justice policy.
My colleague from Ajax—Pickering, our critic on public safety issues, has done a lot of work and has recently published a number of interesting articles that highlight the government's failure to have crime prevention policies and its obsessive focus on punishing offenders once a victim has already been created.
To conclude, on behalf of the Liberal Party, I have to say, as I said already, that we will support Bill C-42. We have concerns about the lack of resources available in the federal prison system, as well as at the provincial level. We believe that the government will have to accept the responsibility of sharing these additional costs with its provincial partners.
We do, however, believe and agree that, in some cases, conditional sentencing has brought some unfair criticism upon the judicial system. For that reason, we recognize the need to further restrict the instances where such sentences are deemed appropriate.
The Liberal Party does not think, as the Conservatives do, that judicial discretion has not worked. We think that Parliament has a role to say to judges that these are the kinds of circumstances that should be eligible for terms of conditional imprisonment, conditional sentences or imprisonment in the community. In many cases for first-time offenders and non-violent offences involving minor crimes, this is precisely the way to improve the chance of rehabilitation and to prevent that person from reoffending once he or she completes his or her sentence.
We believe there is an important role for conditional sentences, but we believe in the case of very serious fraud, in the case of serious repeat property offences, in the case of sexual offences, in the case of offences involving bodily harm, Parliament has a role to say to the judiciary that those are not the kinds of offences for which a convicted person should be eligible for a conditional sentence. That is why we think there is considerable merit in adopting Bill .
Mr. Speaker, I remain convinced that conditional sentences are an extremely important tool that should be given to judges to use in many cases of a first offence. Conditional sentences have practically replaced what used to be known as suspended sentences, even though suspended sentences still exist in the Criminal Code. I seem to remember that judges were starting to hand down suspended sentences when I began practising law. In 1966 at least, suspended sentences already existed, and judges were very happy to have such a tool, because it meant that they could dangle a sword of Damocles over the heads of people they set free.
I remember that I used to explain to my convicted clients that the term “suspended sentence” was very appropriate. The judge had suspended the sentence he could have handed down. He had suspended it on certain conditions: if the convicted offender met those conditions, the judge would not have the right to hand down the sentence he had suspended, but if the offender did not meet one of those conditions or committed another offence, he would be brought before the same judge, who would quite often impose a sentence of up to 14 years in prison. Quite often, too, it would be a life sentence.
But from an administrative standpoint, if I had been a judge, I would have used this tool like some judges I knew well. In Quebec, people of my generation will remember Judge O'Meara, who was a judge of great integrity. He was remarkable. But when people were brought before him, he always sentenced them to prison. In the vast majority of cases, that was enough. It was a warning from the court and it scared the offender, who did not come back. I never had any statistics, but it was said at the time that 90% of offenders never came back. The remaining 10% were the ones we had trouble with, the ones who were back in court repeatedly. So the system worked.
For it to work, once the individual was arrested, he had to be brought before the same judge, who was already playing another role or might be going to another jurisdiction. Things got so complicated that, in the end, this requirement was not enforced. Since most of the time, people were brought before the judge because they had committed another offence, it was actually the second judge who took into account the fact that they had received a suspended sentence and who handed down a stiffer sentence for the second offence.
When conditional sentences were first being handed out—I was reminded of this again recently in Montreal, where there was a case involving a young man—I said that this would replace suspended sentences. And that is what happened. The advantage of conditional sentences is that the sentence is already determined.
I cannot get over what I heard the saying this afternoon in this House. He talked about these white-collar criminals who defrauded people by extorting exorbitant amounts of money and who will be serving their sentence in the comfort of their own living room. Let us get real. Conditional sentences can only apply to sentences under two years and therefore to less serious cases.
I am somewhat familiar with the prison system and I know that the majority of people there are unfortunate souls. I can assure you that the comfort of their living room would seem like a rather uncomfortable cell to us and quite often even more uncomfortable than the totally sanitized and controlled cells found in the prisons. When I hear about people in the comfort of their own living room, with their CD collection and their big screen television and so on, we are not talking about the type of people you find in prison.
I was saying that again this morning in another case.
The hon. member for must also know that recently in Ontario, 39% of inmates were diagnosed with mental illness. This corresponds to what someone was saying before about the intellectual level of the majority of these offenders who commit petty crimes. The advantage of conditional sentences is that the length of the sentence is known. When an offence is committed, the offender goes to prison. It is simple. He finishes his sentence there.
There is not a single study out there to show that conditional sentences did not achieve the intentions of the legislation. In the Criminal Code, 33 pages deal with sentences in general. The government seems to forget that the first sections set out the major objectives and principles. I will read section 718 to illustrate that the goal is for a sentence to strike a balance, which will vary according to the offence and according to the people who are convicted:
|| 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
||(a) to denounce unlawful conduct;
||(b) to deter the offender and other persons from committing offences;
||( c) to separate offenders from society, where necessary;
||(d) to assist in rehabilitating offenders;
||(e) to provide reparations for harm done to victims or to the community; and
||(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
A lot of crimes are committed by first-time offenders, people who will never be arrested again. Is the solution really to forego the conditional sentence and to send them to crime school? Is it really to separate them from their communities? Is it really to prevent them from having a job? Is it really to interrupt their schooling, if that is the case? Do we not want to “promote a sense of responsibility...and acknowledgment of the harm done to victims and to the community”? It is not a good idea to send offenders to prison in order to rehabilitate them. That is like sending someone who is not sick to a place filled with germs or contagious diseases.
These examples are nothing I have ever heard of before. When judges give a conditional sentence, they take into account the fact that the individual will be at home. They do not give that option to people they feel should go to prison to be separated from society. Judges have good reasons for imposing a conditional sentence. For example, they may want to allow an individual to continue to work. Interrupting work or causing first-time offenders to lose their jobs will encourage them even more to get involved with the wrong people and will increase their chances of re-offending. That is one of the things that judges look at.
Very often, the offender needs to continue to work in order to support his family. Separating the offender from his family would punish the entire family, but the judge could impose conditions that would be difficult enough for the offender. In some cases, we want to give offenders a chance to make reparation for the crime they committed. We want to take them out of crime school.
These sentences allow for some form of punishment to be imposed. Those who believe that it is not punishment could perhaps try spending a week in their homes without going out. I have read articles about people who tried it and, in general, they did not really like it.
In general, when judges allow these people to leave their homes, it is so they can keep a job or continue their studies, which will ultimately ensure that they are rehabilitated and provide them with the opportunity to make restitution. It is a tool that enables judges to ensure the rehabilitation of first-time offenders in thousands of cases.
I heard the beginning of the speech by the member from , which was remarkable. In my opinion, he gave an excellent explanation of the rationale for establishing conditional sentences. When he went on to say that these sentences should be abolished, he initially spoke of the public's loss of confidence in the justice system.
It seems to me that when we find out that the majority of people unfortunately have a poor opinion of the justice system, and that this opinion is not warranted, it is up to the government to provide the information to change people's minds. I understand how people feel about the justice system although it is never as radical as what we hear in this place. I have the impression that, in this regard, there is truly a huge cultural difference between Quebec and the rest of Canada. We often see articles about rehabilitation and excessive incarceration.
The media, by their very nature, tend to focus on exceptional cases. Articles in that regard appear from time to time in magazines like L'Actualité in French, or Maclean's in English, for example. Generally speaking, the news we get presents the exceptional cases. Success in rehabilitation is not exceptional. On the contrary, it is the norm, but it is made up of many, tiresome, little cases or those involving people who do not want to see their names in the paper in connection with examples of rehabilitation. Instead, the media are full of exceptional sentences. Most of the time, when we see sentences that appear impossibly or unbelievably lenient, if we dig a little deeper, we will often see any number of reasons to justify the judge's sentence, but the people who talk about lenient sentences do not give us those reasons.
So, newspapers do not generally keep us very well informed about what is happening. I am not surprised that the government has not brought forward any objective studies to show that conditional sentences can lead to problems and that they have not resulted in the advantages we hoped to see when they were created, as so eloquently described by the hon. member for .
Judging the seriousness of crimes by the maximum sentence that is attached to them is rather dangerous, because it can apply to cases that are extremely different, for instance, breaking and entering into a private home. Of course, in principle, our homes are our castles, and should be impenetrable. It is extremely traumatic to come home and realize that thieves have broken in.
Sometimes it is even worse. They have turned everything upside down or raided our liquor cabinet or defaced the walls. It is a very traumatic experience. But in most cases, things do not go nearly as far. I have noticed that if there is someone at home, thieves will not enter. Petty thieves, those who are pushed by their peers, do not want to enter a house if someone is there. Some will throw a party at an unoccupied cottage. I am not condoning that. On the contrary, I would not want to find out that my son has been involved in that type of behaviour. Nonetheless, I have noticed that quite often petty thieves are influenced by a group.
They are liable to life imprisonment. It seems to me that these are cases where, to make the offenders realize what they have done, a judge can tell them that the maximum sentence for such an offence is life imprisonment, but given that this is their first offence, that they were influenced by others, he will give them a two-year prison sentence. What is more, since it is their first conviction, they could serve their sentence at home, but under certain conditions. They will have to continue their studies, be home every night of the week, with permission to go out just once, and so on. The judge establishes a certain number of conditions. In the vast majority of cases, these people will never appear before the court again.
However, if they are sent to prison they will end up in an environment that is completely different than their family life. That is no place to learn how to live an honest life. I know very few people who left prison a better person than when they entered. Prisons are full of thugs and people learn that behaviour there.
I just want to point out one thing here. Quebeckers were recently floored by charges brought against a big star, one of the biggest stars in hockey history, as big a star as Maurice Richard. Guy Lafleur was found guilty of perjury. He was accused of having made two contradictory statements while under oath. There is no telling which of the two was true, but one of them had to be false. That constitutes perjury. Perjury is punishable by up to 14 years in prison. Guy Lafleur would not be eligible for a conditional sentence. That is not what he got. He got a big fine and a suspended sentence. Frankly, can the member for tell me one more time why it would have been so scandalous for him to get a conditional sentence? The sentence he ended up with was just one level lower, a suspended sentence.
I mentioned comfortable living rooms. I can confirm that they might not be desirable. I was surprised to hear the member for suggest that, given his experience with criminal law. Most of the people receiving these sentences do not have comfortable living rooms with big-screen TVs. In fact, I am almost certain that there are more TVs in prison, and better ones than these people have at home, and probably more CDs to choose from. It is not a nice place to be. In many cases, these people get into trouble in public places because they live on the streets, and they live on the streets because home is not a very comfortable place to be.
I think it is a bad idea to take this essential tool away from judges because it can help rehabilitate those who have just committed their first crime. That is why, unlike the member for , we agree with the arguments expressed by the member for at the beginning of his speech and we will vote against this bill. This is yet another bill introduced for ideological and perhaps even electoral reasons. It has nothing to do with science.
Mr. Speaker, I am very pleased to rise to speak to Bill . This is a bill that I think evokes the kinds of opinions and emotions of Canadians and members of the House that cause us all to really be careful, cautious and thoughtful in how we approach it.
Crime is a serious issue in this country. The victims of crime in this country are an important group of people who have a particular vested interest in seeing that our society moves forward in a positive, progressive manner. Crime is a nuanced issue. It is a complicated issue and it is a simple issue at the same time.
What is simple is what Canadians agree on. We all want crime rates in our country to be reduced as much as humanly possible. We all want people who commit acts of crime and who deviate from the path of acceptable conduct to cease doing so. We all want our cities, our schools and our workplaces to be safe, where women can walk the streets in safety, where our children can play in playgrounds safely, and where all Canadians can be safe and secure at all times.
What is complicated about this issue is that there are no necessarily simple answers. I fear that this bill is one such example of a Conservative approach to crime that on the surface seems superficially appropriate, but when we delve deeper actually is ineffective and will not achieve the goals that we all have.
The bill would remove conditional sentencing in this country from our courtrooms for any person convicted of a crime that has a maximum sentence of 14 years or more or a crime that is proceeded with by way of indictment that has a penalty of at least 10 years.
That does not mean that the people convicted of those offences necessarily get those sentences. What it means is simply, by the definition of that crime, it would remove the ability of judges to impose a conditional sentence, even when they thought that that was the appropriate way to go.
I will give a little history. Conditional sentencing was introduced in September 1996. Essentially it allows for sentences of imprisonment to be served in the community rather than in a correctional facility. It is a midway point between incarceration and sanctions such as probation or fines.
The conditional sentence was not introduced in isolation but as part of a thoughtful renewal sentencing process that reviewed the Criminal Code. These provisions included the fundamental purpose and principles of sentencing.
The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the defendant. The renewed sentencing provisions set out sentencing principles including a list of aggravating and mitigating circumstances that should guide sentences imposed.
The primary goal of conditional sentences is to reduce the reliance upon incarceration by providing the courts with an alternate sentencing mechanism. In addition, conditional sentences provide an opportunity to further incorporate restorative justice concepts into the sentencing process by encouraging those who have caused harm to acknowledge this fact and be in a position to make reparation.
At the time of their introduction conditional sentences were generally seen as an appropriate mechanism to divert minor offences and offenders away from the prison system. Overuse of incarceration was recognized by many as problematic while restorative justice concepts were seen as beneficial.
However, in practice, conditional sentences are sometimes viewed in a negative light when used in cases of a very serious crime. Concern has been expressed that some offenders are receiving conditional sentences of imprisonment for crimes that are inappropriate. While it may be beneficial to allow persons who are not dangerous to a community, who otherwise would be incarcerated and who have not committed a serious or violent crime to serve their sentence in the community, certain commentators have argued that sometimes the very nature of the offence and the offender require incarceration.
In this respect an intelligent debate can be had in the House about which particular crimes may not be appropriate for conditional sentences and which ones would be so appropriate.
The problem with the bill before the House is that it eliminates all discretion in this regard. It says that 75 separate offences that are over 14 years are simply taken out of the picture when it comes to being a candidate for conditional sentencing, without any regard to the person being sentenced, to the crime that was committed, to the circumstances of the case. That is the complete opposite of a functioning and well thought out approach to justice.
The present Criminal Code says that these are the kinds of offences that presently do not qualify for conditional sentences. These are offences for which the person has been convicted that must not be a serious personal injury offence. It cannot include high treason, first degree murder or second degree murder. It cannot involve the use or attempted use of violence against another person, or conduct endangering or likely to endanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage to another person.
Conditional sentences are not available to people who have committed sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm or aggravated sexual assault. The offence cannot be a terrorism offence. It cannot be an offence that involves a criminal organization. None of those offences qualify for conditional sentencing.
In a case where a conditional sentence is being considered, a judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. I want to pause there.
When the Conservatives say that everything is about public safety, they do not tell the Canadian public that built right into our Criminal Code is that a conditional sentence cannot be imposed when it would endanger the safety of the community. We should think about that. Obviously a conditional sentence will not endanger the community so eliminating it will not have any appreciable effect on the safety of the community because it will not be imposed when it does so in the first place.
A sentencing judge must also be satisfied that the conditional sentence would be consistent with the fundamental purposes and principles of sentencing. Insofar as this criterion is concerned, I do not hear my friends on the opposite side of the House ever talk about the legal framework of sentencing. They talk about rhetoric and they talk about fear. They do not talk about the real law that is going on
This is what sentencing objectives include: the denunciation of unlawful conduct; the deterrence of the offender and others from committing offences; the separation of the offender from the community where necessary; the rehabilitation of the offender; the provision of reparation to victims and the community; and the promotion of a sense of responsibility in the offender.
These guidelines are guiding our judges and our judicial system, our prosecutors and our defence lawyers when they are deciding an appropriate sentence in the community. This is not a thoughtless process. It is not a process that anybody takes lightly, and conditional sentences are an important tool in the toolbox. I will get into some interesting and important statistics and numbers to show why that is so.
Conditional sentences are not simply a free pass for an offender to have a free vacation in the community. They are, by their very definition, a sentence of incarceration that is simply served in the community as opposed to a penal institution, and they are always attached with conditions, hence the name. The conditions include the following: to keep the peace and be of good behaviour; to appear before the court when required to do so; to report to a supervisor, as required; to remain within the jurisdiction of the court, unless written permission to go outside that jurisdiction is obtained by the court or the person's supervisor; to notify the court or the supervisor in advance of any change of name or address; and to promptly notify the court or the supervisor of any change of employment or occupation.
Furthermore, optional conditions are designed to respond to the conditions of the individual offender. This is something that my friends on the side opposite do not talk about. They think that one size fits all. A person breaks the law and there is one penalty. In a few minutes I will speak to why that is a blunt, an inaccurate and ineffective approach to punishment.
Conditions that are optional include an order that the offender abstain from consumption of alcohol or drugs, that they attend a drug or alcohol treatment program, that they abstain from owning, possessing or carrying a weapon, that they perform up to 240 hours of community service and any other reasonable condition that the court considers desirable for securing the good conduct of the offender and for preventing the offender's repetition of the same offence or commission of another offence. These are conditions that may not be, often are not, and most of the time are not available to an offender in a penal institution.
Unlike probation, a conditional sentence is a tool that is intended to address both punitive and rehabilitation objectives. As I said earlier, safety of the community is one of the paramount criteria considered by a sentencing judge in imposing a conditional sentence.
The gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances. A conditional sentence can also provide a significant deterrence if significant and sufficient punitive conditions are imposed.
When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence.
In sum, conditional sentencing was enacted in our country both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice and effectiveness in sentence. Has it worked? The sentences have been in place since 1996. Here we are, 13 years later. Let us look at the numbers and the facts, as opposed to the rhetoric.
Statistics Canada reports that conditional sentences still represent a small proportion of all sentences in Canada. Again, it is nice for the Conservatives to look like they are tough on crime, but what do they do? They attack the certain portion of our sentencing that is a minuscule amount of the sentencing in the country. In addition, the tendency in recent years has been to use conditional sentences less frequently.
Instead of attacking some of the major issues that are causing crime in our country, which I will talk about, like poverty, like lack of opportunities for our youth and young people, like cutting down on education and skills training, what do the Conservatives do? They bring in a bill that attacks conditional sentences, which is a tiny amount of the sentences and is being less frequently used every year. It is a good way to look tough without actually doing anything.
In 2003 conditional sentences accounted for 5.3% of all admissions to adult correctional services. By 2008, this figure had declined to 4.7%.
In 2007-08 of the 107,000 offenders being supervised in the community, the vast majority, 75%, were people on probation, that is people who were serving sentences in penal institutions who had been paroled into the community, 16% were on conditional sentences and 9% were on parole or statutory release.
Once again, Canada's incarceration rate, which my friends opposite like to whip up in the Canadian public that it is increasing, which it actually is not, rose only by 2% from the previous year, notwithstanding that the rate of crime had been dropping. The gain was driven by the growing number of adults being held in remand in provincial/territorial jails while awaiting trial or sentence.
Recent increases in the incarceration rate follow a period of relatively steady decline from 1996. On any given day in 2008, an average of 36,000 adults and 2,000 youth aged 12 to 17 years were in custody in Canada.
Canada's incarceration rate tends to be higher than those of most western European countries, yet lower than that of the United States, by a long shot. By contrast, in 2007 Sweden had a rate of 74 people in custody per 100,000. By contrast, the rate in the United States for adults alone was 762, and that does not include youth. Canada's incarceration rate was 117 for every 100,000 people.
The imposition of conditional sentences should not only reduce the rate of incarceration, it should also reduce expenditures in the correctional system. This is due to the fact that the average annual inmate cost for persons in provincial/territorial custody, including remand, in 2005-06 was $52,000 and was over $90,000 for a federal inmate.
An earlier survey found that the successful completion of conditional rate of conditional sentence orders fell from 78% to 63% in 2000-01. This of course marks the fact that we are putting an increasing number of conditions on offenders rather than allegations of fresh offenders.
This is the key point. Statistics Canada has found that adult offenders who spent their sentences under supervision in the community were far less likely to become re-involved with correctional authorities within 12 months of their release than those who had been placed in a correctional institution.
The study found that in four provinces 11% of people who were under community supervision became re-involved with correctional authorities within 12 months and among those in custody 30% became re-involved, more than double the proportion of those under community supervision.
Why is this? This is because in a study that concentrated upon the victims of crime and their attitudes toward conditional sentencing, the benefits of conditional sentencing were viewed by them to include the fact that most rehabilitation programs could be more effectively implemented when the offender was in the community rather than in custody, that prison was no more effective a deterrent than more severe intermediate punishments, such as enhanced conditions on home confinement, that keeping offenders in custody was significantly more expensive than supervising them in the community and that the public had become more supportive of community-based sentencing particularly restorative justice measures, except for serious crimes of violence.
The government is following an out-moded, U.S.-style George Bush approach to prisons that does not work. Even Arnold Schwarzenegger, who cannot be accused of being soft on crime in the state of California, is moving in a completely opposite path than the Conservative government. Why? Instead of building more prisons and sending people to prison for longer periods of time in more harsh conditions, many states have realized that this is costing them unbelievable amounts of money. In some cases, state budgets are facing bankruptcy. Most important, it is not even effective.
After some states have spent billions of dollars on increasing incarceration, what have they found? They are out billions of dollars and it is not even effective because crime rates in their communities are not falling. What a double waste. They spend more taxpayer money and do not even have safer communities.
I will talk about some things the government is doing that is the compete opposite of making our communities safe. It is closing single-member RCMP detachments in communities under 5,000 in British Columbia. It is closing the western Canada duty office in the home city of my friend, the hon. member for , and concentrating that office in Ottawa.
I visited Kent, a maximum security institution, last week. The CORCAN section of the prison, which is the section that consists of large, open areas where prisoners are supposed to make things, build equipment and learn employment skills, was empty. It was closed. What do we do with inmates when they are in custody? We lock them in their cells and we do not give them the educational or skills training they need that might give them a chance not to reoffend when they come out of prison.
There is a complete shortage of all kinds of programs in our prison system, from programs that would help offenders learn employment skills to getting education, to simply getting the kind of social, emotional and psychological treatment they need. Eighty per cent of prisoners in our prison system suffer from mental illness and most of those people do not get anywhere near the treatment they need to adequately deal with their problems.
Why is this important? Because the New Democrats believe in one thing. The best way to keep our communities safe is to ensure that offenders do not reoffend when they come out of prison. That is an obvious statement. We do not believe that because we are bleeding heart, compassionate people. We believe that because of self-interest.
This means people in prison ought to get the kinds of programs they need. It means that every person coming in contact with our justice system ought to have a judge, a prosecutor and a defence lawyer adequately look at sentencing alternatives that are tailored to the person, to ensure the person does not reoffend. Taking away the tool of conditional sentencing not only does not accomplish that but will make our communities less safe.
The most important people in this whole debate are the victims of crime in our country. Victims of crime in are not served when we adopt policies that make it more likely that offenders will reoffend when they come out of our justice system. It is not good policy. It is not being smart on crime.
Mr. Speaker, I am honoured to participate in this debate on Bill . This is a bill that proposes to eliminate the use of conditional sentencing for virtually all serious crimes.
What is more, this bill allows our Conservative government to finish a job that, sadly, the opposition parties had prevented us from finishing during the previous Parliament. I note that at least one of those parties has now flipped on the issue. It is actually supporting our bill this time around when it opposed it in the previous Parliament.
It would surprise Canadians to know that, under current conditional sentencing practices, serious criminals are allowed to serve their sentences in the comfort of their homes, in front of their big screen TVs and in front of their computers rather than in a prison. That is why these sentences are often referred to as house arrest.
Canada's Criminal Code allows for house arrest to be imposed when a number of conditions are met, including the following: The crime is not punishable by a mandatory minimum sentence; the court sentences the offender to less than two years in prison; the court is convinced that having the criminal serve the sentence in his own home and community would not endanger the safety of that community, and the court is satisfied that the conditional sentence would be consistent with the fundamental purposes and principles of sentencing, one of which, incidentally, is deterrence and denunciation.
There is one additional proviso. The offence must meet the following criteria. It must not be a terrorism offence. It cannot be a crime that is committed on behalf of or as part of a criminal organization or enterprise. Additionally, and I want members to listen very carefully to this, it must not be a serious personal injury offence as defined in the Criminal Code.
That is where the rub lies. The term “serious personal injury offence” is very narrowly defined in the Code. What is more, there are many other crimes that, though not involving direct physical injury to the person, hurt and damage people in very serious and often life-altering ways. These are crimes that are very clearly not legitimate for issuing a sentence that would be served at home, but in fact do qualify for house arrest under our present law. Canadians are rightly angry with such a state of affairs.
Let me give some examples. Although arson does not necessarily involve direct physical injury to another person, it is a very serious offence that most right-thinking Canadians would agree should attract prison time. Imagine a family losing all of their earthly possessions and being unable to return to their home for many months, if ever. Yet, under the current law, the arsonist gets to go back to the comfort of his own home.
Imagine sexual predators attempting to prey on and lure our vulnerable children over the Internet for sexual purposes. Should those offenders not serve some hard time in jail rather than enjoying the comforts of house arrest? Of course they should, yet many of them do in fact spend their sentences at home.
I just responded to a statement made by the member for and he responded that there is no proof that these offenders are actually serving their time at home. In fact, if he looks at the case law and sentences, those convicted of luring children are actually spending their sentences in the comfort of their homes.
It goes on. What about those drug lords and traffickers who get rich by selling misery, violence and ultimately death to our children? Why should they be able to qualify, as the law presently provides, to serve their punishment back in the comfort of a home often purchased from the proceeds of crime?
Canadians demand more. With Bill , our Conservative government is further restricting the use of conditional sentences and ending the use of house arrests for all indictable offences for which the maximum term of imprisonment is 14 years or more, regardless of whether serious personal injury is involved. The same will apply to indictable offences for which the maximum prison term is 10 years, where these offences involve the use of a weapon, result in bodily harm or involve the importation, exportation, trafficking or production of drugs.
What is more, Canadians will be pleased to hear that Bill would finally eliminate the use of house arrest for the following crimes: criminal harassment; sexual assault; kidnapping; human trafficking; theft over $5,000; breaking and entering a place other than a dwelling place; being unlawfully in a dwelling house with intent; arson for fraudulent purpose; and, as I mentioned earlier, luring a child over the Internet for sexual purposes.
I am well aware that some of my colleagues in the House might remind me that our government amended the conditional sentencing regime in Canada once before. That was in December 2007. However, the sad truth is that during the last Parliament, the Liberals, the NDP and the Bloc used the notion of serious personal injury to water down our Conservative government's efforts to limit conditional sentences. In so doing, the Liberals and the NDP again reinforced the public's perception that they are truly soft on crime.
The opposition parties felt that serious crimes such as robbery should continue to qualify for conditional sentences since they are not defined as a serious personal injury offence. This is all the more surprising to me given that the offence of robbery under section 343 of the Criminal Code includes elements of violence.