Mr. Speaker, I thank the House for this additional opportunity to speak to Bill . When I began my remarks yesterday, I was explaining that this bill will eliminate conditional sentences for all serious criminal offences, not just those that result in serious personal injury.
Presently, the courts are able to sentence offenders to a period of confinement, but allow that sentence to be served at home and in the community. I want to be very clear about this. In some cases where minor offences are involved, conditional sentences might be appropriate to allow the offender to reflect on his actions and rehabilitate himself. However, in most cases, conditional sentences or house arrests, as they are often referred to, are quite inappropriate.
The sad fact is that under the Criminal Code and the Controlled Drugs and Substances Act, there are many very serious offences for which house arrest still remains available as a sentencing option.
Let me give some examples. It will shock Canadians that these kinds offences can still draw a sentence served in the comfort of one's home. They include: criminal harassment; sexual assault; kidnapping; human trafficking, including the trafficking of young children; theft over $5,000; breaking and entering with intent; arson for a fraudulent purpose; and of course luring a child.
I want to briefly touch on that last one: luring a child. Yesterday, I talked about arson. An arsonist could burn down a family's home. The family would not be able to go back for many months if ever at all. The arsonist could return to his home and sit in front of his big screen TV.
Today, I would like to talk about the luring offence. Let me explain what that is. The sexual luring of children is when a sexual predator goes on the Internet and establishes contact with a young child. That child may come from a challenged home. That child may be lonely or have other challenges in his or her life.
The predator starts communicating with that child and develops a level of trust with that child. Of course, the predator does not tell the child how old he is. He communicates that he is perhaps 13 or 14 years of age, so the child has no way of knowing that he or she is actually dealing with an adult. As this conversation continues, it becomes sexual in nature and eventually that child is lured out of the home and exploited sexually.
That is something that Canadians clearly understand should not draw a house arrest type of sentence. I had the opportunity in the previous Parliament to introduce a private member's bill, which doubled the maximum sentence that could be levied against someone who attempted to lure children over the Internet for sexual purposes from five to 10 years. That bill was initially opposed by the Bloc, but thankfully the rest of the House did support it. It went to committee and we eventually did get unanimous support for the bill.
The reason the bill was so necessary is that when this offence was compared to other offences in the Criminal Code at that time, the maximum sentence was five years, yet one could steal a neighbour's cow and be liable to a maximum sentence of 10 years. One could defraud a person of more than $5,000 and be sentenced to 10 years in jail. Yet, if one lured a vulnerable child over the Internet, the maximum one could get was five years in prison. Fortunately, the House did deem that bill to be worthy of support. It did pass and it is now the law of Canada.
Should these child molesters who use the Internet to lure children qualify to serve their sentences in the comforts of their home? Canadians would be shocked to hear that they still do at this time. More shockingly, the NDP still supports house arrest for these kinds of serious crimes. In fact, yesterday I had a dialogue in the House with the member for , who comes from my area of the country. It is an area that has had serious drug-related and violent crime problems.
He should know the challenges that we face trying to get a handle on serious crime. Yet, he suggested that crimes such as luring children over the Internet would not attract a conditional sentence, in other words, a sentence served in the comforts of one's home. In fact, he challenged me specifically to provided him with some cases. That is what I have done.
I want to point out to him a number of cases that have occurred since 2002. The first one is Regina v. Folino. This was a case of luring a child over the Internet. The result was house arrest of 18 months. In other words, the person served the sentence in the comfort of his home.
In Regina v. Pritchard, a 19-year-old man lured a girl he knew to be 13 years of age. What did he get? He got two years less a day to be served in the community, house arrest. In Regina v. Burke, a teacher, who lured a boy over the Internet, received a house arrest sentence and that was in 2007.
Another one was an Edmonton father who got a conditional sentence for Internet luring, Regina v. MacIntyre. That was in June of 2009. An Antigonish man received a conditional sentence for Internet luring. That was this year.
It is true that there are serious crimes that are still qualifying for house arrest and it is something that shocks Canadians. Bill would eliminate the use of house arrest for virtually all serious crimes, including those I specifically mentioned.
That is what Canadians have asked us to do and our Conservative government is listening and acting. What is more, we are finishing the job that the Liberals and the NDP refused to allow us to do during the previous Parliament. Let me explain.
As I mentioned yesterday, during the 39th Parliament our government tabled a bill which would have eliminated house arrest for all serious crimes, as we have done under Bill . Sadly, the Liberal, NDP and Bloc members of the House gutted the bill and removed serious crimes, such as kidnapping, arson, sexual assault and the luring of children for sexual purposes. Shame on them. That is why this bill is before us again.
I am relieved to see that the Liberal Party has finally indicated that it may support the bill this time around. However, my question to Liberal members is this. What miraculous conversion did they undergo between the last Parliament and this one to finally understand that serious crime deserves serious time in jail? Something happened along the way. They certainly did not get it a year and a half ago.
Crimes such as kidnapping, arson, robbery and luring children, although not always involving direct physical injury, usually result in serious trauma for the victim and often change the victim's life forever. Why should these crimes not be punished with time in jail? Canadians are asking that very question.
These are crimes which very clearly should not qualify for a sentence to be served at home. Yet, the NDP and Bloc continue to fight our efforts to protect Canadians and to denounce criminal conduct appropriately. The opposition parties truly are soft on crime. They try to deny it in the House. They pretend that they are standing up for Canadians, but when we put them to the test, they fail it miserably. Canadians, rightfully, are angry with such a state of affairs.
Need I remind the opposition parties of the extent of the fraud cases reported in the media recently? These are some of Canada's largest financial frauds. They have occurred in Quebec, they have occurred in Alberta recently, and they have occurred in British Columbia. They have occurred in virtually every province of this great country of ours and they have been perpetrated against some of the most vulnerable citizens, especially our seniors.
These are swindlers who know exactly who they are swindling and yet under the current law they could very well be sentenced to, guess what, a time out at home. That is what the NDP is asking for. That is what the Bloc is still asking for.
Bill would change that. It is time for change. If the opposition parties do not want to help us protect Canadians, they should get out of the way and let us get the job done.
The long and short of it is this. Bill does exactly what victims across the country have been demanding. It ensures that serious crimes, such as serious fraud, robbery, kidnapping, sexual assault, arson and the sexual luring of children, receive real jail sentences, not time outs at home. No more serious criminals serving their sentences in the comfort of their homes, in front of their big screen TVs and computer sets. If they do serious crime, they will do serious time, not at home but in jail.
Our government is listening to Canadians and we are acting accordingly. I urge my colleagues in the House to put aside the partisanship, put aside the rancour, put aside these ideological straightjackets that confine them to taking positions that are against the interests of Canadians, to do what is right and take notice of some of the challenges we face in our criminal justice system.
Being from the west coast, I know very well some of the recent challenges we have had with violent crime and drug related crime. I want to point out that Bill will actually also remove conditional sentences for the most serious drug trafficking crimes. Why should a convicted drug dealer, who in most cases is a repeat offender and represents a danger to our communities, serve his or her sentence in the comfort of home? Often that home has been purchased from the proceeds of crime. That is even more shocking.
I encourage my colleagues to put aside the partisanship and give the bill unanimous support in order to speed its passage. I can assure the House that as chair of the justice committee, I will do my part to assure swift passage of this very important bill.
Mr. Speaker, I would be pleased to recommence, especially since interpretation is so important. What I am about to say is important for a number of my colleagues in this House to hear. I want to thank you for giving me the floor to speak to this issue.
In 1996, I was a criminal lawyer when the famous conditional sentencing concept was introduced. This concept did not come out of thin air. It was not invented by some gnome who philosophized on the development of criminal law. It came after lengthy studies and an analysis of the situation and upon the realization that many inmates were being given very short prison sentences. Let us be clear. Someone who was sentenced say to one month or six months in prison with eligibility for early parole from the provincial prisons was immediately released.
What happened in a number of cases is that the judge sentenced an individual to two years less a day. I hope the members opposite are listening. The individual would arrive at the provincial prison and because of overcrowding, suddenly a month or so later, that individual would be released without any conditions. Provincial prisons were overcrowded. They are still overcrowded.
I am not saying, and I would never say that everyone should be released or that everyone should have longer sentences. That is not what I am saying. I am saying that when the conditional sentencing concept—that is what we are talking about—was introduced, judges, lawyers, crown attorneys, police officers, and all the correctional services were consulted. Then, contrary to what the hon. member for might think, we very carefully, and in agreement with the RCMP, put in place this conditional sentencing with very strict rules.
What are those rules? I would like my colleagues opposite to listen up. First, the offender has to be sentenced to less than two years. They have to stop trying to take us for a ride like that. The government is trying to make us swallow all kinds of garbage that has nothing to do with reality, like saying that someone convicted of trafficking in narcotics would end up serving time at home, taking it easy. That is not true, and I will say more about it shortly. I know that for purely ideological reasons, they will not do it, but some of my colleagues opposite should maybe read and reread parts of the Criminal Code that deal with conditional sentencing, beginning with section 742, and they should also read and reread sections 718 to 718.2, which address principles of sentencing. I will come back to that.
Before a judge imposes a conditional sentence, the offender must be found guilty of an offence not punishable by a minimum sentence. I wish they would quit harping on about that. The moment an offender gets a minimum prison sentence, it is over. They take him away, and he is not eligible for a conditional sentence. The judge has to find that the offence merits a jail term of less than two years. So what does the judge do? He talks to the offender and tells him that he deserves jail time, and that it can be two years less a day, and that he has decided to impose that sentence, but the offender is going to serve it in the community. I will come back to that.
And that brings us to what our Conservative friends find so exasperating.
The judge must be convinced that serving the sentence in the community would not pose a threat to public safety. Therefore they want to take away from the judge the possibility of saying to an individual before him that he is convinced that he does not and will not pose a threat to public safety. I will come back to this.
The judge must be convinced that the conditional sentence meets the criteria of the principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
Allow me to explain. We will read a few sections. Section 718 was included in the Criminal Code at the request of police forces, crown attorneys, defence lawyers and judges, not just anyone.
|| 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;
I will repeat this because the Conservatives do not understand it:
|| (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.
In 2005—and not a century or more ago—subsections 7.18.01, 7.18.1 and 718.2 were added.
|| 718.2 A court that imposes a sentence shall also take into consideration the following principles:
I did not make this up, it is in the Criminal Code. The Conservatives should amend section 718 of the Criminal Code if they wish to remove it.
||(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
|| (i) evidence that the offence was motivated by bias, prejudice or hate...
What I am trying to show is that there is a fundamental difference between this side of the House and the other side. We believe in rehabilitation, not incarceration and repression by every means possible. Getting tough on crime does not work. We asked the hon. to give us figures, but he did not. All the studies show the benefits of individualized sentencing. This is not something I made up. The Supreme Court said in a ruling that one of the objectives of a sentence was individualization. Individualized sentencing is very important.
Consequently, in addressing the individual before him, a judge must explain the reasons for the sentence.
We asked the minister whether he had any proof that this did not work. There was none. Even the 's own department proved that conditional sentencing worked very well. The program was monitored regularly and worked extremely well.
What is happening? There is a fundamental problem, and it has to do with the vision of society.
I do not know whether anyone has ever argued cases involving conditional sentences, but I have. Some people think that a conditional sentence is easy.
During question period today, in response to clear questions, I heard that someone could serve his sentence sitting with his feet up or relaxing in his living room in front of his 42-inch television, as my colleague said 10 minutes ago. I have bad news for him, because it does not really work that way. My colleague should read the sections of the Criminal Code that have to do with conditional sentences. Section 742 covers the compulsory conditions of a conditional sentence. Let us look at what the court does.
I have argued such cases, and I can explain what the court does. When we request a conditional sentence, the court has the individual appear. We present our arguments and explain the case. We tell the judge that a conditional sentence is warranted. First, is a sentence of more than two years warranted, yes or no? No. Then the individual is eligible for a conditional sentence.
So what does the court do then? All the numbers and all the stats show that if the court has to impose jail time—take, for example, a case involving impaired driving causing bodily harm—the court will generally decide that a prison sentence of less than two years is appropriate.
The court considers the seriousness of the situation, the potential for rehabilitation and the offence. Then it tells the offender that it believes he deserves an eight-month sentence. But because the judge is imposing a conditional sentence, he gives the offender 12 or even 14 months.
The Conservatives have never understood and will never understand why this happens. Judges know that a guy who violates the terms of his conditional sentence when he should be sitting at home all comfy and cozy watching his 42-inch TV will go to jail for the rest of his sentence with no chance of parole.
So what do the Conservatives want? They do not want to talk about rehabilitation. They only want to talk about repression.
Let us talk about the mandatory conditions. Anyone on the other side of the House who thinks that people are sent home to watch their 42-inch TVs is mistaken. Some of the mandatory conditions are keeping the peace—that is clear—being of good behaviour—that is clear—appearing before the court when required to do so and reporting to a supervisor with correctional services.
This is what really happens. The court imposes conditions. For example, if an offender has a drinking problem, he has to go to therapy, fix his alcohol problem and not leave his house between 8 p.m. and 6 a.m. except to go to church. What do corrections officers do? We have seen this happen plenty of times, so I know that they call at one, two or three o'clock in the morning to make sure the offender is complying with the conditions. That is how it works.
Release conditions for conditional sentences are monitored more closely, and I hope that the members opposite will understand that. Offenders are under closer supervision now. That means that right now, they are monitored more closely than offenders in jails that handle sentences of less than two years. That means that parole services officers supervise offenders serving conditional sentences much more closely.
Furthermore, as if that were not enough, a judge can assign volunteer hours or community service, or require an offender to make restitution. Courts will very often do this. One has to have been to court. It is too bad that my colleagues opposite did not do that before introducing this bill. They need to have a look at the document that a person signs when they are released under supervision or receive a conditional sentence. Generally, this document is two 8.5x14 pages. The individual has to sign it. The consequences are that if he does not respect the conditions set out in the document, he will be sent to prison to serve the rest of his sentence.
There is another very serious phenomenon. The figures from 2003 and 2004—and my colleagues across the floor do not dispute this—reveal certain things about crime rates. During those two years, many conditional sentences were imposed, in fact, about 18,000 or 19,000. Statistics from 1996 to 2003 and 2004 were assessed. Whether my Conservative friends like it or not, the crime rate dropped by 2%. They will say that this is a small drop, and I agree, but at least it did not increase. Two percent means a lot of people. That means between 15,000 and 18,000 fewer people before the courts. Yes, we see some mistakes. I know this, because I have argued many cases. I have had to defend clients who did not deserve conditional sentences.
I have told several clients in the past that it would be easier for them to serve a prison sentence than a conditional sentence. The individual will see what it is like to have someone call him at home at 2:00 a.m., someone who checks to make sure he went to the doctor or to his AA meetings, or whether he paid back his debt by paying a set amount every week or every month, and who monitors him even during working hours. That is what people seem to forget.
Perhaps this does not work in western Canada; I am not sure. However, personally, I can say that conditional sentences work very well in Quebec. Yes, some people fail. It is unfortunate that my colleague was unable to give us the figures, but I will give them to him at our next committee meeting.
One thing is certain: the Bloc Québécois members of Parliament think that conditional sentences are a good way to allow someone to be rehabilitated. There is no doubt. I hope they will remember this. These are not career criminals. Not everyone deserves a conditional sentence.
I know for a fact that judges are extremely cautious. That is why we cannot support this bill. It does not respect Quebec's wishes, that is, the possibility of rehabilitation and reintegration, which are two fundamental principles of our criminal justice system.
Mr. Speaker, I am here today to debate Bill , ending conditional sentences for property and other serious crimes act. As the name of the bill indicates, further reforms are needed to ensure that conditional sentences are not imposed for serious crimes.
Conditional sentences of imprisonment came into force over 13 years ago, with the proclamation in 1996 of Bill C-41, Sentencing Reform, Chapter 22 of the Statutes of Canada, 1995.
Bill C-41 created a new sentencing part of the Criminal Code. Among its key elements were the creation of conditional sentences as a new sentencing option, the first ever parliamentary statement of the purpose and principles of sentencing, referred to as section 718 to section 718.2, and increased emphasis on the interest of crime victims, including the recognition that the harm done to victims should be considered at sentencing.
A conditional sentence of imprisonment is a sentence of imprisonment of less than two years that a court may permit an offender to serve in the community under conditions and supervision. Originally a conditional sentence was available to sentencing courts provided that the following prerequisites were present: the sentence was less than two years; the court was satisfied that allowing the offender to serve the sentence of imprisonment in the community would not endanger the safety of the community; and the offence could not be punishable by a mandatory minimum term of imprisonment.
Shortly after implementation, a requirement was added that the court be satisfied that sentencing the offender to serve a conditional sentence of imprisonment was consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code. This was designed to respond to concerns that courts were awarding conditional sentence orders for quite serious offences.
In 2000 the Supreme Court of Canada held, in Regina v. Proulx, that the conditional sentencing regime did not exclude any category of offences other than those with a minimum period of incarceration. Nor was there a presumption for or against its use for any category of offence. The court stated, however, that it was open to Parliament to introduce such limitations.
Conditional sentences were never intended for very violent or serious crimes, but rather for less serious offences. The problem has been that not all sentencing courts have interpreted the availability of conditional sentences in the same manner, no consistency. Consequently many, including some provinces and territories became increasingly concerned with the wide array of offences that resulted in conditional sentences of imprisonment.
Over the years questionable conditional sentencing decisions have contributed to a loss of public confidence in the sanction and therefore in the administration of justice.
This government responded to these concerns when it tabled Bill on May 4, 2006. Bill C-9 was referred to the Standing Committee on Justice and Human Rights on June 6, 2006.
Bill in its original form proposed a new criterion that would have eliminated the availability of conditional sentences for offences punishable by a maximum sentence of 10 years or more and prosecuted by indictment. This would have caught serious crimes, including designated violent and sexual offences, weapons offences, offences committed against children and serious property crimes such as fraud and theft over $5,000.
However, opposition members of the justice committee thought that the scope of Bill was too broad. The opposition voted to amend this legislation to only capture terrorism offences, organized crime offences and serious personal injury offences, as defined in section 752 of the Criminal Code, which are punishable by a maximum sentence of 10 years or more and prosecuted by indictment. This was similar to the approach in Bill , which the previous government had tabled in the fall of 2005, but which died on the order paper with the call of the general election. Our government's attempt at report stage to reinstate Bill C-9 to its original form was defeated by the three opposition parties.
As is the case with other sentencing options, a conditional sentence must be considered in the context of the entire sentencing regime and especially the principles of sentencing.
Section 718 of the code states:
|| 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.
The preconditions for a conditional sentence, along with the deemed aggravating factors added to the Criminal Code by Bill , such as evidence that the offender abused a position of trust, for example, were designed to screen out serious offences committed in circumstances for which denunciation, general deterrence and incapacitation should be considered the primary sentencing objectives.
In addition, the fundamental principal of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I find it hard to believe that this fundamental principle is being properly observed when a conditional sentence is imposed for serious violent or serious property offences.
Accordingly it is my view that the current conditional sentencing regime still fails to categorically make conditional sentences ineligible for many serious crimes. In addition to excluding terrorism and criminal organization offences prosecuted by indictment and punishable by 10 years or more, the Criminal Code also excludes serious personal injury offences from the availability of a conditional sentence.
The term “serious personal injury offence” was designed for dangerous and long-term offenders. It was borrowed to serve as a limit to the availability of conditional sentences by the amendments of the opposition parties to Bill . A serious personal injury offence is defined in section 752 of the Criminal Code as:
||(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
||(i) the use or attempted use of violence against another person, or
||(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
||and for which the offender may be sentenced to imprisonment for ten years or more, or
||(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
Only the sexual assault offences referred to in paragraph 752(b) of the Criminal Code are explicitly ineligible for a conditional sentence order if prosecuted by indictment. A finding that other offences fit the definition of serious personal injury offence will depend on the circumstances of each case.
Up until the coming into force of Bill on December 1, 2007, sentencing courts had only to interpret serious personal injury offence for the purpose of determining whether the threshold for a dangerous or long-term offender application had been met according to part 24 of the Criminal Code, because that term was defined only for the dangerous and long-term offender provisions.
Since Bill came into force, courts have wrestled with the interpretation of serious personal injury offences in the context of conditional sentences. The Alberta Court of Appeal in Ponticorvo, 2009 reviewed its decision in Neve, 1999, where it had considered the definition of serious personal injury offence in the context of dangerous offender provisions.
In that context, the court concluded that section 752 required that the offence considered be objectively serious. However, in the context of conditional sentences, the Court of Appeal found that the use or attempted use of violence sufficed and did not require any overlay of objective seriousness. In other words, it ruled that it should be easier for the Crown to establish that an offence was a serious personal injury offence, or SPIO, in the context of a conditional sentence than it was in the context of a dangerous offender.
The Bill case law only deals with crimes committed after December 1, 2007, when the legislation came into force, so there is really not a large number of reported cases commenting on the serious personal injury offences in the conditional sentencing context.
The decision of the Alberta Court of Appeal should have resulted in a more consistent application of the definition of serious personal injury offence within the conditional sentencing regime, which would have ensured that similar offences be treated as serious personal injury offences and therefore ineligible for house arrest or conditional sentencing.
While this approach has been followed in a majority of cases, unfortunately this has not always been the case. For instance, in both R. v. Becker, 2009, a decision of the Alberta Provincial Court, and in R. v. Thompson, 2009, a decision of the Ontario Court of Justice, courts were asked to determine whether robbery was a serious personal injury offence in the context of the availability of conditional sentences. In both cases, threats were made, yet in only one of the two cases did the court find that robbery met the definition of serious personal injury offences.
I can tell the House from my personal experience, having been involved with victims of robbery, that it is a serious offence every time it occurs to a person who is in the position of victim.
In R. v. Grewal and Grewal, 2009, a decision of the British Columbia Provincial Court, the court sentenced two accused to conditional sentence orders for the offences of assault with a weapon and assault causing bodily harm. The accused ambushed the victim on his front lawn, hitting him with a shovel and a fireplace poker. The victim required 10 to 20 stitches in his head, suffered broken teeth and neck, arm, thigh and hip pain. What happened? We have already seen in that case how it was not consistent with the rest of the sentencing principles.
In R. v. Prakash, 2009, a decision of the Ontario Court of Justice, the offender was convicted of unlawfully being in a dwelling house, uttering a threat, mischief under $5,000, criminal harassment, impaired driving and breach of a probation order. To me these are serious offences. After taking into account credit for pre-sentencing custody at a two-for-one rate, the offender was sentenced to one day in prison for the offences of impaired driving and breach of a probation order. He then got an additional 12 month conditional sentence on the remaining offences.
I cannot even imagine what the victims were thinking upon hearing those kinds of sentences.
Another concern with only barring serious personal injury offences from the conditional sentence option is that serious property crime such as fraud could still be eligible for a conditional sentence. We are well aware of recent examples of the devastating impact of fraud. Victims who have lost their life savings have called very recently for strengthened sentences for these types of crimes. It is hard to disagree with these concerns, especially considering the fact that fraud, which is punishable by a maximum sentence of 14 years, is still technically eligible for a conditional sentence, despite the amendments brought forward by our government's previous Bill .
Our government intends to address this in Bill and in future legislation dealing with sentences for fraud.
Another consequence to the opposition's amendments to Bill , our earlier bill to restrict conditional sentences, is that offences contained in the Controlled Drugs and Substances Act were not excluded unless committed as part of a criminal organization. Consequently, the production, importation and trafficking of a schedule 1 drug such as heroin would not be caught and would be eligible for a conditional sentence of imprisonment.
However, as hon. members would know, the government has proposed mandatory minimum penalties for serious drug offences in Bill . I therefore expect that when that legislation is passed and enacted into law, as I hope will soon be the case, these offences would be ineligible for a conditional sentence.
It is clear to me, and I suggest to many Canadians, that greater clarity and consistency is needed as to the availability of conditional sentences for serious, violent and serious property offences. For these reasons, Bill proposes to eliminate the reference to serious personal injury offences in subsection 742.1 and make all offences punishable by 14 years or life ineligible for a conditional sentence. This would make the offence of fraud and many other crimes ineligible for a conditional sentence.
Bill would also clearly make offences prosecuted by indictment; those punishable by 10 years' imprisonment; those that result in bodily harm; those that involve import, export, trafficking or production of drugs, or those that involve the use of a weapon ineligible for a conditional sentence.
While this element of the legislation will significantly limit the ambit of the conditional sentence regime, the addition of these categories would not capture all serious offences prosecuted by indictment and punishable by a maximum of 10 years. Therefore, Bill also proposes a list of 11 specific offences prosecuted by indictment and punishable by a maximum sentence of 10 years that would be ineligible for a conditional sentence.
These offences are prison breach, luring a child, criminal harassment, sexual assault, kidnapping, trafficking in persons, abduction, theft over $5,000, breaking and entering a place other than a dwelling house, being unlawfully in a dwelling house, and arson for fraudulent purposes.
Conditional sentences are an appropriate sentencing tool in many cases, but they do need to be restricted when it comes to serious property offences and serious violent offences. The prudent use of conditional sentence orders should strengthen confidence in the sanction and in the administration of justice.
I hope that all hon. members in the House will support Bill in its entirety.
Mr. Speaker, I also rise to speak to this legislation from the perspective of the context in which we have to address it and the attempt by the government, in a very undemocratic fashion, to do an end run around a vote that took place in the House approximately three years ago on the precursor bill, Bill , which the government brought in shortly after it was elected in 2006. It was the first crime bill that the Conservatives brought in.
In the 2006 election, both the Conservatives and the NDP ran their platform around the issue of eliminating the use of conditional sentences for serious violent crimes. That was the terminology, and it was almost identical in both party platforms.
Bill came forward, but that was not what it attempted to do. As so often happens with the Conservative Party, it was a huge over-reach.
Bill would have eliminated the use of conditional sentences for 40 or 45 sections of the Criminal Code. Were these sections all dealing with serious violent crime? We have to remember that the Conservatives promised Canadians in their platform to eliminate conditional sentences.
There were sections in there about altering data in a computer. That was an offence and the conditional sentence would no longer be used after that kind of conviction. There were sections about forging a testamentary document. It was the same thing. That is not a violent crime. There was a whole list of these.
Accurately, as was described by some members who spoke earlier, the combined opposition parties moved to bring the bill to committee. We in the NDP told Canadians that we would remove the use of conditional sentences for serious violent crimes, and we did that, and then we eliminated the other sections. We complied with what we had said to Canadians. We were quite happy to do that because it was what we had promised. We accomplished one of the promises we had made to the electorate.
Bill came back to the House and a substantial majority voted for it. I think the Conservatives might even have voted for it, but I cannot remember. I should have checked that. The bill went on to the Senate where it was approved and became law and is law to this day. That was a promise made and a promise kept, as opposed to what the Conservatives would have wanted to do.
Following the way of their straight partisan politics, the Conservatives have now decided to bring Bill forward, along with many other bills, and are attempting to convince the Canadian people that they are tough on crime. I would like to emphasize toughness not smartness.
It was interesting to note the evidence that came out in the course of the debate in committee on Bill and to a lesser degree when it came back to the House. I remember both the justice minister and the minister for public safety and national security appeared before committee. In both cases they were asked if they knew how many more people were going to be incarcerated and if they knew how much that was going to cost.
Let me digress on this point and explain how conditional sentences work. A judge has to determine that he or she would not sentence a person eligible for a conditional sentence to incarceration in an institution for more than two years. In effect, they would be sentenced, if they were going to be incarcerated, to a period of time of two years less a day. If anybody understands the system in this country, all of those sentences of two years less a day are served in provincial prisons.
Let me go back to the two questions of whether they knew how much it was going to cost and did they know how many were going to be put in? In both cases, the ministers did not know.
I and some of my colleagues from the other parties dug out that information regarding that long list of 45 offences that may no longer be eligible for conditional sentences. All those people would then go to jail for two years less a day. I want to be clear on this. This was information that came from within the Department of Justice. Let me repeat that. The source of this information in writing was the Department of Justice. It turns out that 5,000 more people would be put in provincial jails. Of course, the ministers did not have to worry about that, did they? Not a dime of that was coming out of the federal coffers. They were just dumping this problem of 5,000 more inmates on the provincial system.
Knowing how much it costs per year for an inmate, we estimated that those 5,000 additional inmates in our prisons at the provincial level would cost the provinces in the range of $250 million to $500 million a year. There are many provinces that would like to be able to spend that money.
Because there was no way that the provincial systems could accommodate 5,000 additional inmates with their existing number of beds, there would have to be additions built on to the existing provincial institutions or new ones built. The estimate of what it would cost for capital was in the order of $1.5 billion to $2 billion. Is the federal government going to contribute any of that? Were those two ministers going to have to take it out of their budgets? Absolutely not.
It is important to understand that context because we are faced with the same situation with this bill. If I asked the or the , who is responsible for corrections, they would not be able to tell me. They would not be able to give me an answer. I am absolutely convinced of that. In fact, last week in the Globe and Mail we saw the article and the editorial attacking the government for refusing to disclose what information it has and what analysis it has done.
I want to be very clear. The analysis that the has done has not taken into account the drug bill that has gone through the House and is sitting in the other place waiting for passage. If that bill and this one pass, he has not done an analysis of how many more inmates there would be. He has not done that.
In spite of the fact that we hear constantly from the that he keeps being reassured by the that we have lots of space in our federal prisons, it does not matter. He is wrong, by the way, and I am going to come back to that in a second. It does not matter because these people, under Bill , are all going to go into the provincial system.
It was interesting to hear two of my colleagues, one from my party in Quebec and one from the Liberal Party in New Brunswick in the last couple of days tell me that the judges at the provincial level have been told not to send people to jail for weekends because the provincial institutions no longer have space for any of them. They have to put them on probation. That is the reality of what we are faced with at the provincial level and it is true in every single province and territory in this country.
We have signed international protocols that require us to have one inmate per cell. We are breaching that international protocol as much as 50% of the time, particularly at the provincial level but also at the federal level.
Let us go back to the federal system and the assurances—I wanted to use a term that is unparliamentary and I am looking for a synonym—that lack credibility from the .
The head of Correctional Service of Canada, Mr. Don Head, has made it very clear at committee hearings and in the public press in the last month that we do not have the capacity at the federal level, that we are regularly double-bunking, and triple-bunking in some cases, per cell. We are not meeting our international requirements and promises we have made. We do not have that capacity.
Last week the Globe and Mail attacked the minister and the government, because the minister is refusing to disclose the analysis he had done and how much it will cost. That does not take into account these two bills, the one that is before us today and the drug bill that is before the other place right now.
Because of the information we do have up to this point and we will get more, and with the support of the Liberals the bill will obviously go to committee, we will be voting against it. I am quite comfortable in saying that we will see similar numbers, 5,000-plus inmates being incarcerated in our prisons, if this legislation and the drug bill go through. Let me repeat that it will cost the provinces hundreds of millions of dollars a year. It will cost the provinces a huge amount of capital dollars.
It will depend on what our judges do with it. They may say that they cannot send convicts to provincial jails any more, so they may move the sentence up to two years plus a day, or two and a half years or three years and they would then go into the federal system. That would severely impact on the number of inmates at the federal level. It is a realistic possibility, if not a probability, that our judges will start to do that.
I want to make one more point about the cost issue. We always hear from the Conservatives, which is partly why the Liberals run scared on it, that we are soft on crime. I want to use an example in the United States. I think we could argue that most of the states, and Texas and a couple of other southern states in the U.S. may be ahead of them, but California has led the way in throwing people into prison in huge numbers.
Just so we are clear on that, our incarceration rate in Canada is about one-seventh of what it is in the United States. However, it is also the highest of the western democracies after the United States. Japan has an incarceration rate of roughly 60 per 100,000 population. Ours right now is running at about 110 to 120, in those ratios, which is almost double that of Japan. Western democracies in Europe, Australia and New Zealand are running 80 to 90 per 100,000. The United States is running 700-plus per 100,000.
California was one of the states that led the way in getting tough on crime, with the right-wing Reagan-Bush type of agenda, followed very closely by the Conservative Party in this country. In the last few months, Arnold Schwarzenegger, the Governor of California, that person who is really soft on crime, has been compelled to begin to release--he is doing it himself; he has to sign each one of them--thousands of inmates on early parole, including a large number who had been convicted and were serving time for serious violent crime, because the state can no longer afford to pay for it. The prison costs in California exceed what the state spends on post-secondary education. It is part of the bankruptcy with which that state is confronted right now. In order to deal with that, he is having to release thousands of inmates on early parole.
That is a very clear model of what would happen if we follow the agenda followed by the United States and the State of California, which the governing party wants us to follow. I want to juxtapose that with the use of conditional sentences. What came out very clearly in the review of Bill two and a half years ago was that it is working.
The Conservatives come up with these individual cases where our courts clearly can be said to have overused the conditional sentence. We can always find those cases.
I am a great defender of our judiciary. Having practised law all those years, having analyzed our judges and having analyzed judges in a whole bunch of other countries, I firmly believe that we have the best judges in the world. However, they are human. They make mistakes. We should not be deriving from those mistakes principles that guide us on how we are going to pass legislation around convictions, around sentencing. That should not be the way we do it.
What we should do is look at what has happened since we brought in conditional sentences. It was very clear from the evidence that we took in the review of Bill that it is working. The recidivism rate is about one-third what it is versus those we incarcerate, 30-plus per cent of those we incarcerate, down around 10% and in some cases, depending on what the charges are and what the convictions are for, as low as 8% and up to 12%, but on average, around 10% or 11% is the recidivism rate.
We hear the anecdotal stories and we hear people say that they are standing up for the victims. What they are standing up for is a system that is going to victimize more people down the road because 30% of the inmates are going to become recidivists and are going to go back and commit oftentimes more serious crimes than the ones they first went in for. We know that prisons train people to do that. Where are they in terms of defending those victims, the future ones who inevitably are going to be a result of these types of policies?
We are going to be voting against this bill at second reading. If the bill gets through the committee and comes back to the House, we are going to be voting against it at third reading. This legislation is the wrong approach. It is going to victimize a large number of additional Canadians as opposed to the alternative of what we have now. It is very clear that as our violent crime rate continues to drop, a good deal of that is because we began using a number of principles around restorative justice, including conditional sentences. Our system is working.
It is interesting. I sat for a number of years on the public safety and national security committee. People from all over the world came to look at what we were doing because our system was working. They were seeing us drop our violent crime rate. They were seeing that we were moving quite dramatically away from the U.S. experience and that it was working. Conditional sentencing was one of the things they would come to take a close look at to see how it worked. In many cases, I understand, they are beginning to look at implementing it in other countries that were not using it before they saw ours.
It is a system that works. Is it perfect? Absolutely not. Are our judges human? Yes, they are. Do they make mistakes? Absolutely, they make mistakes. However, it is still the best system, and it is far superior to what is being proposed under this legislation.