Mr. Speaker, it is certainly an honour for me to rise today to begin second reading debate on Bill , ending house arrest for property and other serious crimes by serious and violent offenders Act.
This bill, aptly named, proposes to restrict the availability of conditional sentences in the same manner as advanced in the former Bill in the last session of Parliament. Our government is taking further action to crack down on crime and to protect the safety and security of our communities.
A conditional sentence of imprisonment is one that is less than two years and one that a court may permit an offender to serve in the community under conditions and supervision. Bill proposes amendments to the Criminal Code to ensure that conditional sentences are never available for serious and violent offenders, and serious property offences which were never intended to be eligible for a conditional sentence in the first place.
Let me be clear to all members of the House. This government's proposed legislation would ensure that House arrest is no longer used for offences that pose a significant risk to law-abiding citizens.
Conditional sentences of imprisonment came into force over 13 years ago with the proclamation in 1996 of Bill C-41, entitled “Sentencing Reform”, which is found in chapter 22 of the Statutes of Canada, 1995. Among the key elements of that legislation were the following: the creation of conditional sentences as a new sentencing option; the first ever parliamentary statement of the purpose and principles of sentencing, which are contained in sections 718 and 718.2 of the Criminal Code of Canada; and increased emphasis on the interests of crime victims, including the recognition that the harm done to victims should be considered at the time of sentencing.
As originally enacted in 1996, a conditional sentence was available as a sentencing option provided that the following prerequisites were met: first, the sentence must be less than two years in duration; second, the court must be satisfied that allowing the offender to serve the sentence of imprisonment in the community will not endanger the safety of the community; and third, the offence must not be punishable by a mandatory minimum term of imprisonment.
Shortly after the implementation of Bill C-41 and in response to concerns that courts were awarding conditional sentence orders for quite serious offences, a requirement was added that the court be satisfied that sentencing the offender to serve a conditional sentence of imprisonment is consistent with the fundamental purpose and principles of sentencing as set out in the Criminal Code.
The fundamental purpose of sentencing, as described in section 718 of the code, states that a sentence must contribute 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: first, denouncing unlawful conduct; second, deterring the offender and other persons from committing offences; third, separating offenders from society where necessary; fourth, assisting in the rehabilitation of offenders; fifth, providing reparation for harm done to victims or the community; and finally, promoting a sense of responsibility in offenders and acknowledgement 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 C-41, such as evidence that the offender abused a position of trust, 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 principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
In 2000, the Supreme Court of Canada held in Regina v. Proulx that the conditional sentencing regime does not exclude any category of offences other than those with a minimum period of incarceration, nor is there a presumption for or against its use for any category of offence. The court said, however, that it was open for Parliament to introduce such limitations. Unfortunately, sentencing courts have interpreted the availability of conditional sentences in an inconsistent fashion because of the lack of clear parameters, allowing in some instances violent and serious offenders to serve their sentences under a conditional sentence of imprisonment.
This unfortunately has resulted in criticism of the sanction and a loss of public confidence in the administration of justice and, I would submit, in the justice system overall.
The government responded expeditiously to these concerns when it took office by tabling, in May of 2006, Bill . As introduced, Bill C-9 proposed to eliminate the availability of conditional sentences for any offences punishable by a maximum sentence of 10 years or more that were prosecuted by indictment.
This would have caught serious crimes such as sexual offences, weapons offences, offences against children, and also serious property crime such as fraud and theft over $5,000. However, as ultimately passed by Parliament, Bill only further restricted the availability of conditional sentences by excluding terrorism offences, organized crime offences, and serious personal injury offences that were punishable by a maximum sentence of 10 years or more and when they were prosecuted by indictment.
As defined by section 752 of the Criminal Code, a serious personal injury offence has two components. First, it is defined to specifically include the three general sexual assault offences which are contained in sections 271, 272 and 273 of the Criminal Code that are used for adult and some child victims.
However, the second component of a serious personal injury offence does not provide the same certainty because it includes indictable offences other than high treason, treason, first degree murder or second degree murder involving 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 on another person, for which the offender may be sentenced to imprisonment for a term of 10 years or longer.
It is this aspect of the existing conditional sentencing provisions that are so problematic and this is what the bill before us today addresses. Rather than leaving it to the individual courts to determine whether a particular case qualifies as a serious personal injury offence, this bill clearly identifies all offences which will never be eligible for a conditional sentence. It removes the uncertainty and provides clarity to our law.
Up until the coming into force of Bill on December 1, 2007, sentencing courts only interpreted serious personal injury offence for the purposes of determining whether the threshold for a dangerous or long-term offender application had been met under part 24 of the Criminal Code. This is because the term had been enacted and defined for the dangerous and long-term offender provisions only.
Since Bill came into force, courts have had to interpret the definition of serious personal injury offences in the context of conditional sentences, a context which is quite different than that for dangerous and long-term offenders.
For instance, in Regina v. Becker in 2009, a decision of the Alberta Provincial Court, and in Regina v. Thompson, a decision by the Ontario Court of Justice, the courts were asked to determine whether the offence of 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 ultimately find that robbery met the definition of a serious personal injury offence. In other words, the eligibility of the same offence, in this case robbery, for a conditional sentence was interpreted differently by these two courts, with the result that a conditional sentence was available in one case but not in the other. Clearly, that inconsistency needs to be resolved.
In two other cases before the Courts of Appeal in the same two provinces, both courts interpreted the serious personal injury in the conditional sentence context in the same way, but differently from how serious personal injury had been interpreted to date in the dangerous offender context. More specifically, in the 2009 decision by the Alberta Court of Appeal, in Regina v. Ponticorvo, the court held that serious personal injury in the conditional sentence context included the use or attempted use of any violence and was not restricted to only the use of serious violence. In so doing, the court applied a different interpretation than it had to the same term in the dangerous offender context in Regina v. Neve in 1999.
Moreover, the Court of Appeal for Ontario, in Regina v. Lebar, in 2010, confirmed this approach and concluded that for the purpose of the availability of conditional sentences, Parliament created:
--a divide between crimes where violence is or is not used, not between crimes of serious violence and less serious violence.
That is found at paragraph 69 of the Ontario Court of Appeal judgment.
What these cases illustrate is that there is considerable uncertainty about how the existing conditional sentences will be interpreted and applied. However, this bill would provide the needed clarity and the certainty to say which offences are not eligible for a conditional sentence. This would, in turn, prevent the need to wait for these issues to be finally resolved by the appellant courts.
Another concern is that the definition of serious personal injury offences does not cover other serious property crimes which would still be eligible for a conditional sentence.
For instance, fraud, which can have a devastating impact on the lives of its victims, is punishable by a maximum sentence of 14 years. Although this type of offence can be every bit as devastating as a serious personal injury offence, it is still technically eligible for a conditional sentence.
In addition, the current prerequisites of the availability of a conditional sentence do not exclude drug offences unless they are committed as part of a criminal organization and provided that they are punishable by 10 years or more and prosecuted by indictment. Consequently, as a result, a conditional sentence would be available for the production, importation and trafficking in a schedule 1 drug, such as heroin.
I think members would agree with me that most Canadians would not find that result reasonable.
It is my view that the current conditional sentencing regime still fails to categorically make conditional sentences ineligible for many very serious crimes. Greater clarity and greater consistency is needed to limit the availability of conditional sentences and to protect Canadians from serious and violent offenders.
In order to address these concerns, this bill proposes to eliminate the reference to serious personal injury offences in section 742.1 and make all offences punishable by 14 years, or life, ineligible for a conditional sentence. This would make the offences of fraud, robbery and many other crimes ineligible for conditional sentences.
It would also clearly make offences prosecuted by indictment and punishable by 10 years that result in bodily harm, that involve the import or export, trafficking and production of drugs, or that involve the use of a weapon, ineligible for a conditional sentence.
While this element of the legislation would significantly limit the ambit of the conditional sentencing regime, the addition of these categories would not capture all serious offences prosecuted by indictment and punishable by a maximum of 10 years.
To resolve this, this bill also proposes a list of 11 specific offences prosecuted by indictment and punishable by a maximum sentence of 10 years that, upon passage of this legislation, would become ineligible for a conditional sentence. These offences are: prison breach, luring a child, criminal harassment, sexual assault, forcible confinement, 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. However, access to them does need to be restricted when it comes to serious property and serious violent offences.
This government shares the common sense belief of all Canadians, that the punishment should fit the crime, especially when it comes to serious and violent offences, and serious and violent offenders.
This legislation, when passed by this House, would make it clear to the courts that those who commit serious property and violent offences will serve jail time and that house arrest will no longer be an available sentencing option.
I hope that all hon. members will appreciate that and support this legislation.
Mr. Speaker, it is my pleasure to rise and speak to Bill , which, but for prorogation, might be Bill and, but for incessant elections, might be Bill . In any event, this is a proposed law that speaks to a tool the judiciary has in its toolbox called conditional sentencing.
I am struck by the previous speaker and the tone in the House generally when it comes to characterizing bills by names that presumably everyone can understand what they mean. The Conservative government attempts to cut, with a very large swath, colour with a large brush, a whole area of law with a very simply phrase.
For people tuning in to the debate about Bill , they would, because of the way the government labels bills, think this is a debate about ending house arrest for property and other serious crimes by serious and violent offenders. That would be the title of the book or the movie that people would be watching if they were tuning in to this debate.
When we actually peel away the layers of the onion, we realize that we are talking about an enactment of Parliament that was substantially amended in 1995, with some minor amendments in the last Parliament, which is imposing conditional sentence. It does not say imposing house arrest with a big screen TV and extreme television. That is not to be found in the code.
The Criminal Code is a large volume that regulates the laws punishing criminals for proven facts that lead to a sentence or conviction. The Criminal Code does that. It is divided up into many sections, sections involving offences against the state, invasions of privacy, offences against the person, offences against property. Administrative aspects are in there as well. There are some 800 sections in the code and one of those sections deals with imposing a conditional sentence.
Let us be clear. If someone who commits a crime is sentenced to two years less a day, that individual is eligible, in some cases, for conditional sentence. Anybody who is found guilty of an offence that gets a sentence of more than two years is not, will not be, has never been, eligible for conditional sentencing.
Maybe some the people listening today are parents. They realize that if they take away their teenage daughter's cellphone, that is pretty serious punishment. If they banish her to her room for a week, that is really serious punishment. However, if they tell her she has to eat her vegetables, that is not that serious in the realm of possibilities of sentencing.
Conditional sentencing is available to judges. It provides them with the opportunity to say that there is some possible merit in the person. The individual has done a bad thing, but maybe he or she could be rehabilitated, maybe we could get to the root cause of why he or she is acting this way.
This opens up the larger debate of what are we doing as a Parliament about crime prevention.
We have been doing very little lately because we are spending our time watching our own big screen TVs and the saying that this bill would end house arrest for property and other serious offences, when in fact it is trying to curb a tool being used by judges and prosecutors every day.
Let us be clear again. A defence attorney defends a person accused of something. That is not within the realm of this debate here. We are making law that would be used by police officers and prosecutors. Police charge a person with an offence. Prosecutors will look at a whole range of proof possibilities. They will also look at the range of possible sentencing. The prosecutors, the police and eventually the judge will look at the sentence in a holistic fashion and say that there are a number of options available, such as the individual is just a bad person and he or she should be locked away. Unfortunately the Conservative government thinks everybody falls into that category, and there are a number who do.
However, there are also people who, because of addictions to substances or horrendous nurturing child development socio-economic background problems, are driven to crime. A number of people, because of mental illness, which still has not been addressed in our communities, may turn to a life of crime and perhaps, in the first few incidences, are committing crimes that a judge, a prosecutor or a police force official would say that the person could benefit from a conditional sentence. Conditional sentences are often recommended by prosecutors.
This painting of the picture by the Conservatives that all policemen and all prosecutors want the most harsh sentence and want to put the person away is not always the case.
This is why we have debate in the House and why we have committees where we will hear from the people actually doing the work, the prosecutors, the policemen and, hopefully, the judges. They will tell us that this is a tool that exists among all the other tools which include incarceration. If someone commits an offence they can be charged with an offence and incarcerated. If it is a really serious offence, the offender will get a really long jail sentence.
My friend from Edmonton—St. Albert does not want to talk about cases but let us cut it up as to the type of offences that might occur and the sentences that would be incurred.
If someone commits a really serious sexual assault involving bodily harm and it is his fourth offence, he will not get six months or a year. He will get a serious sentence, not a conditional sentence. It is an academic argument. It is a wrong argument to say that we are giving house arrest to the big screen TV watching criminals for the very serious offences on multiple occasions. The evidence will be before us in committee. Contrary to what my friend from Edmonton--St. Albert said, the committee and this Parliament have not heard any evidence about conditional sentencing. We will hear that if the bill goes to committee.
I would remind members of the House that we get the big wheel of the justice committee going and then all of a sudden there is a prorogation and we start all over again. Heavy is the head that wears the crown over there, in that the government keeps stopping Parliament and bringing in legislation and we have to hear evidence all over again.
However, we are looking forward to hearing from the participants in the justice system as to whether the tool is being used and whether it works.
As I was saying, the other tools that a judge, prosecutor and police officials have at their disposal is to work together toward incarcerating criminals. Let us review that one. In many circumstances the best deterrent for future criminal activity is having someone not out and available to do that crime. There is no question about that. The best prospect for public security and public safety with respect to certain individuals is keeping them incarcerated. A little side note is that when they are in our corrections facilities they often commit crimes as well because it is not as controlled as Canadians would like to think. Criminal activities do take place inside our corrections facilities. Therefore, when we remove someone it is not as if we are getting rid of their criminal activity. That is number one.
Number two is that without any rehabilitative programs and without any care for making the person better, the period of incarceration has, in many cases, especially for a first or second offender who might merit a conditional sentence, the opposite effect. The offender does not learn necessarily good things in prison and he or she comes out a worse offender or a worse potential offender.
There is another fallacy in the Conservatives' hide and seek justice philosophy. They think they can convince the Canadian public that by putting people away and removing them from society they will never come back into society, and, in some cases that is true. I do not have the facts in front of me about that but our list of dangerous or long term offenders who will be incarcerated forever, multiple murderers, is in the percentage of 1%, 2% or 3% of our incarcerees now. I think it is that low.
I will be conservative for a moment and say that the vast majority, 80% perhaps, of offenders will get out of prison. When they get out even the Conservative would need to come up with a reason to put them back in. Therefore, they do need to reoffend and thus the victimization reoccurs.
What is in everyone's interest is to know that incarceration happens, which is the first element in the toolkit. Second, if there is a sentence that merits a period of leave or freedom, it can be accomplished with a guilty plea, a sentence and a probation order. In some cases, a probation order would be very acceptable. However, as we heard time and again, probation orders are not as fluid. They are not a useful tool to judges because they do not allow as many conditions attended to the probation order as a conditional sentence. I do not hear the government saying that we should end all probation orders. It must think the probation order works even though it has fewer conditions than a conditional sentence regime.
The conditional sentence is the third element in the toolbox that I would like to discuss. It is found in section 742.1 of the Criminal Code of Canada which, as I have said before, is the best thing a Conservative justice minister ever did by creating the Criminal Code or putting it together. That is some 100 years ago and we are looking for some improvement and some new things from a Conservative justice minister, but near the end of the code it has a tool for judges to say that if a person is convicted of a offence and it is less than two years and, this is a key thing, the judge is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in section 718, the conditional sentence may work and may be used by a judge.
Section 718, which I have referred to a number of times, is probably the most important part of the Criminal Code because it sets out our principles of sentencing and they do not weight one more than the other. It says that if a person has done a crime we should seek to denounce that crime. There also should be an element of deterrence so that it does not happen again. Deterrence is general to the general public. If a person does something, the conviction of that and the sentence attended to it should deter people generally from doing that and it certainly should deter the person specifically.
There are also elements of rehabilitation. Is the person who committed the crime and has been convicted eligible to be rehabilitated? The goal of most of the criminal justice legislation that comes from this place must be to make society safer. Making society safer would occur if there were less crime. There would be less crime if there were a serious crime prevention agenda, a serious attended budget for crime prevention and less bickering between the federal government and the provinces with respect to how to spend resources on crime prevention.
For a moment I will digress and say that there is a bickering by distance. The provinces may get social transfers but they always say that they do not have enough resources to fund probation officers and police officers who intervene in the community. The provinces are doing very little with federal money to get involved in crime prevention. We must remember that everything with the government is storefront. It is not what is behind the storefront, but in the storefront the Conservatives put the Ombudsman of Victims of Crime, Mr. Steve Sullivan. He did an admirable job. He spoke up for victims. However, like Kevin Page, AECL and everyone who gives the government a few problems, speaks up and speaks the truth to power, the Conservatives are not renewing the contract to Mr. Sullivan. How serious are they about victims rights really and how serious are they about a crime prevention agenda?
The provinces would like to do more in this regard.
I do not know if our intergovernmental affairs critic is here but in the old days there were a number of first ministers meetings, attorneys general, justice ministers and even the prime minister might be involved occasionally in the past, but there has been very little dialogue with respect to crime prevention and to changes to the Criminal Code from the current government members.
The Conservatives are not as much interested in finding the root causes of crime and treating them, or in finding out what programs are effective and funding them, or in talking to the provinces on how to better implement their programs on a national scale, province by province and territory by territory, as they are in the 5 p.m., 6 p.m. in the Atlantic provinces and 6:30 p.m. in Newfoundland, national news stories that say, “We have done this today. Look at us. We are going to make the language simple.”
I find nothing wrong with simple language but in this case it is misleading to say that this is about house arrest. This is about the section of the code that gives the judge options. If a judge chooses to employ the conditional sentence for a crime that is less than two years, he or she may, in most cases has to, implement certain conditions, and they are here, that every person convicted of a crime that befits a conditional sentence shall keep the peace and be of good behaviour, shall appear before the court when required to do so, shall report to a supervisor within two working days after making the order, thereafter, when required and at the behest of the supervisor, shall remain within the jurisdiction of the court unless has permission to do otherwise, shall notify the court or the supervisor in advance of any change of name or address and promptly notify the court.
If any of those conditions are broken, and if provinces are adequately funded for officers to enforce these orders, which is a big problem for the provinces, the government throws out legislation, puts it on the books and subsequently has a turf war with the provinces and territories as to how the laws will be implemented and who pays for it. There is a systemic downloading of services to provinces in this regard. However, those are the standard conditions and if they are broken the person goes back.
I think we will hear from witnesses, if this goes to committee, why it is a valuable tool that need not be restricted any more than it is and needs to be a tool of the judicial discretion that exists. We must remember that from the moment the government took office it has attacked judges because it did not like anyone who was not in their caucus, which is getting smaller month by month. In other words, the government would like to have judges like those in the United States who run on political campaigns, on a set of political promises and toe a political party line.
The government has had very little respect for judges since it came to power and now it wants to take away further discretion. It is okay to have that belief, but when it stands and says that it believes in judicial discretion, its actions with respect to legislation does not show that.
Let us talk about a good judge, a good prosecution and good police officer bringing an individual to court who may be saved. These additional conditions are available to a judge for people who have been found guilty of an offence for which a conditional sentence order might apply. They could be ordered to abstain from the consumption of alcohol or other intoxicating substances. There is no such order in our corrections facilities. It is a given that they cannot in corrections facilities but the reality is that it happens.
As I said earlier, and I think we would all agree, many people who commit crimes and are in our prisons have substance abuse issues. It is the root cause of much crime in this country. We should be doing something to allow judges to force people convicted of offences to refrain from consuming alcohol or intoxicating substances.
Another condition could be abstaining from owning, possessing or carrying a weapon. Other conditions are to provide for the support and care of dependents, if the person has them; perform up to 240 hours of community services over a period not exceeding 18 months; attend a treatment program approved by a province; and comply with, and this is the catch-all, such other reasonable conditions as the court considers desirable.
Let us not throw the baby out with the bathwater. Let us keep conditional sentences subject to what the evidence tells us about their efficacy. Let us not completely denigrate the system, which is the whole pith and substance of what the hon. member for , in leading the government in this discussion, said. He said that because conditional sentences are used, so people can watch their big screen TVs, the whole system of justice is brought into disrepute.
What brings the system of justice into disrepute is the agent of the government, the representative of the government who stands here and says that something that is being used every day by good judges, good prosecutors and good policemen is not working. That is what brings it into disrepute.
Mr. Speaker, I am a lawyer. I passed the bar in 1966 and, as luck would have it, my first job was with the provincial government. I was then approached by the federal government, which, at that point, prosecuted almost all lawsuits involving drug-related offences. I was then approached by a large firm that dealt with criminal law. When that firm broke up, I was ready to open my own office. I opened my office and hired lawyers. I was very involved in the bar association. I became vice-president and then president of the Quebec bar. After a short break from my career as a criminal lawyer, I went back to criminal law.
I also taught and was often consulted by the Law Reform Commission, as were many other criminal lawyers. I then went into politics and became the minister of public safety. I had to face the most dangerous criminal gang in the country, the Hells Angels. I appointed the chief of the Sûreté du Québec. I was friends with the Montreal chief of police. We came up with a new method for the police to deal with organized crime. That led to creation of the Carcajou squad. The idea was that police would integrate their data bases containing information about criminals. On the ground, the investigators always worked in pairs—one from Sûreté du Québec, the other from Montreal police. The method worked well enough and the RCMP joined us. We were the first country to break the Hells Angels and arrest the ringleaders of this organization through Opération printemps 2001.
I do not think that anyone can doubt my desire to decrease the number of victims and to find effective ways of fighting crime. I believe that we have already found one. This mixed squad model has spread across Canada and even into the United States. We were the first to use it, in 1997.
To begin with, I must say that of course I am against sentences of house arrest for criminals who commit very serious violent crimes. Would anyone claim to be in favour of such a thing? We can say this so adamantly on our side of the House because we are confident that everyone is against this, as are judges who also probably do not want criminals who commit serious violent crimes to be allowed to return to the comfort of their homes. Thus, judges do not give such sentences to serious, violent criminals. Also, I am entirely convinced, and I think it is obvious, that the best way to protect victims is by reducing crime. In this effort to reduce crime, we need more than just legislation; enforcement techniques must also be considered. And then there is police work, which can sometimes focus as much on prevention as on catching criminals.
I have over 40 years of experience and I was also Quebec's minister of justice. I would point out, however, that the greatest success of the Carcajou squad—an operation that took place over three years and that also led to the loss of some informants who were killed during the operations—was Opération Printemps 2001 during which 322 individuals were arrested. They were all convicted of something and there were never any complaints about how the police had obtained the evidence used in the trials.
Nor do I know anyone who criticized the sentences that were handed down to this group, which included not only the worst offenders and the leaders, but also minor accomplices.
I had not planned on making a career of criminal law, but that experience led me to do some reading and ask some basic questions about why people commit crime. In university, we criticized one another for not being intellectually honest, but it is even worse when dealing with fraud artists and thieves.
I came to believe quite strongly that, although intervention is necessary, sentence length and severity have relatively little effect. Severe sentences are costly, not only in terms of money spent, but also for the individuals destroyed by long periods of incarceration. What is more, some people who should not have been incarcerated for short periods of time are immersed in a criminal environment for months at a time.
Evidence suggests that the most effective approach is rapid intervention and sentencing. Sentence length is relatively unimportant. I quickly became convinced that there is no such thing as a deterrent sentence. Fear of getting caught is what deters people from committing crimes. God knows that I made enough money by helping people avoid a criminal record even when they were not facing the possibility of jail time to know that most people think getting caught and ending up with a record is bad enough.
The best evidence I have seen to suggest that sentence length is not a deterrent is the seven-year minimum sentence for importing marijuana. To be honest, in 1966, I had never even heard of marijuana. That is when it all started. Cannabis can be turned into marijuana and hashish, but the kind of hemp or cannabis grown here was not hallucinogenic at all. Everything was imported. Imports began to soar at that time, despite the threat of seven years in jail. That is the best evidence that sentencing is not an effective deterrent.
All the same, deterrence can work in some circumstances, such as when people know the consequences of an offence and know that they will be subject to those consequences. Here is an example of that.
When I started practising law, judges could choose between a jail sentence and a fine. However, in the 1960s, a new concept from England was added to the Criminal Code: conditional sentences. The judge would tell the offender that he was suspending the sentence subject to certain conditions. In short, rather than imposing a sentence that day, he would suspend it and, if the person abided by the conditions, he would not have the right to impose it. However, if the offender did not abide by the conditions—the judge could set a number of conditions, such as house arrest—he would be brought before the judge and a sentence imposed at that time.
House arrest, by the way, is a common practice in Europe. In all European countries, including England I believe, it is possible to serve a sentence at home. When implemented in Canada, I thought that this might perhaps replace suspended sentences which, in practice, are difficult to administer—so difficult that offenders were not brought back before the judge for sentencing.
The advantage of conditional sentencing is that the judge states that the sentence is 18 months' imprisonment and that it will be served in the community with certain conditions. The conditions can be very harsh. If the offender does not abide by the conditions, the sentence has already been determined and the individual will have to serve the rest of the sentence. If the breach occurs in the second month, he will have to serve 16 months. If the breach occurs in the sixteenth month, he will not have a great deal of time left to serve. However, the deterrent effect is more immediate and, most of the time, the offender quickly understands.
Conditional sentencing also had many other advantages. For example, it made it possible for individuals to keep their jobs and to support their families. It also allowed them, when possible, to make restitution for damages caused by the crime. Because young adults are often the majority of accused people, it allowed them to continue their education or to attend a program to learn a trade and get a job. Moreover, it was less expensive. I believe we have mentioned often enough that it costs $101,000 per year to keep an offender in a federal prison.
It is not televisions or things like that that cost so much. Over 98% of that amount is spent on security. Spending on security is not as high in the provinces, but it is still significant.
The individual is already feeling the immediate consequences of crime. When we send someone to prison, do we realize what kind of environment that is? That person is surrounded by criminals. Too often, the criminals run the prisons and the prisoner organizations inside. For someone who is impressionable, this is not the best environment. Plus, we are causing this person to lose his job, since he cannot report to work, or we are interrupting his schooling, something that could make him a better citizen, a useful citizen. It also trivializes offences. This person is surrounded by plenty of people who did much worse.
The Conservatives always tell us that serious and violent criminals must not be in the comfort of their homes. I do not think that judges give light sentences. This bill is not intended to punish serious and violent criminals—which the law already does—but those who have not committed serious and violent offences, people the judges have decided do not present a danger to public safety. These are the instructions given to judges.
We are always given the example of a case that came up somewhere or another. I notice that most of the time—this time is an exception, but we will look into it—we are talking about sentences imposed in a first instance. Very little is said about these sentences. When a judge hands down a sentence, he or she must take into consideration a number of factors that are mentioned in sections 712 and onward.
Some of these factors push the judge in one direction or another. For example, denouncing the unlawful conduct would be along the lines of indulgence, while deterring offenders or anyone from committing offences would be leaning toward harsher sentences. Separating offenders from society, where necessary, has to do with dangerous offenders. As for providing reparations for harm done to victims or to the community, the judge starts to run into problems because if the person in question is forced to lose their employment, they will not be able to provide the reparation. I believe that true rehabilitation begins with the effort of making restitution to the victim. That is what we should be looking at.
One of these elements, the social reintegration of the offender, takes a different tack. The judge has to consider all of this. Every time hon. members across the way give us an example of a sentence, they only give us one reason. Anthony Doob, the famous criminologist from Toronto, conducted an experiment. He looked at how many reasons the newspapers reported as to why a sentence was handed down. He found that it was one reason and a quarter. He then looked at how many reasons judges gave to justify their sentences and on average they gave 11 to 13 reasons.
If it appears to be so terrible, then why was there no appeal? We are told that two cases are being appealed. I will look into why the appeal courts handed down sentences that were seemingly contradictory. I think, on the contrary, that these sentences might seem contradictory because the facts were quite different and there were some factors that called for harsher measures and others that called for clemency. I do not really like the word clemency, so I will talk about measures to ensure rehabilitation.
This system has been in place for 14 years, and it seems to me that the government should be evaluating how it is applied and the measures it includes before proposing any changes. Nothing in the government's proposals is motivated by danger, poor administration or the disastrous consequences of some action. On the contrary, since this system was put in place, crime has gone down overall. In any case, the government would have to prove to us that house arrests have had negative consequences in enough cases to warrant amending the legislation and wiping out our confidence in the wisdom of judges.
People always talk about the comforts of home and big-screen TV. Although ministers and members may enjoy the comforts of home, when you have had some contact with the criminal world and you have dealt with these people, you know what sort of lives they lead. The main characteristic that people in prison share is that they are socially maladjusted. Sociological studies conducted when I was Minister of Public Safety for Quebec showed that these people are socially maladjusted.
I can guarantee that not one member could spend a week without leaving the basement of most of these people sentenced to house arrest. I would even suggest that they try spending a week in their own home without leaving. They would see whether house arrest is a form of punishment. Just for fun, I once tried to stay home for a whole weekend. House arrest is definitely a form of punishment, especially in the sorts of homes these people live in.
Mention was made of fraud and how it was very different. If it is, then sentences for fraud should be different as well. I do not see why the government is targeting fraud. There is a lot of minor fraud for which short prison sentences or house arrest would not be appropriate. Obviously, this sort of sentence would not do for Earl Jones or Vincent Lacroix, and I believe that all judges would agree.
Mention was also made of the many sentences that would be affected by this measure. Drug trafficking is serious until you look closely at the definitions of trafficking. Trafficking includes giving and offering to give someone drugs. Marijuana is still classified as a drug, so if a guy offers his girlfriend a joint and she says no, he has trafficked in drugs in the eyes of the law. Is he what we would call a dangerous offender?
The government always forgets about less serious cases in its new bills. It talks about the most serious crimes. It eloquently condemns the most serious crimes, but it ignores anything less serious. By focusing on the most serious crimes, it overlooks all of the accomplices who have committed less serious crimes.
Here is another example involving drugs. Parents know that their child is smoking marijuana or hashish. Two or three envelopes arrive from Morocco, but their son tells them not to open the envelopes. What should those parents do? I know what I would do because I know the consequences. However, many parents would keep the envelopes and give the child a lecture. Some parents might throw the envelopes out, which makes them accomplices. What they did was less serious, but if they get caught, they have to suffer the consequences.
I knew one young woman who accepted packages for a friend who was away. In that case, the minimum sentence was applied and she got the same seven years in jail as he did.
Lastly, we have to talk about costs, which are significant. There can be no doubt that costs will go up because of this bill.
This means that they will have to go to provincial jails, but there is no space for them. Double bunking is already happening. Because there is no space for them, they get out sooner. “In and out” treatment is common in cases where it would have been better for individuals to serve their sentences at home with the sword of Damocles hanging over their heads to remind them of the possibility of going back inside.
I do not understand why they have not yet given us the breakdowns, but in this case, the cost alone means that proportionally fewer sentences will be served in their entirety.
Mr. Speaker, with regard to Bill , it is important to set it in its context.
I will try to demolish the myth of the Conservatives being concerned about crime and victims in our country. I wish the person who keeps talking about the revolving door had some knowledge of it. He obviously is fully ignorant of it. The condition that will come from the bill, if it ever gets through the House and into law, will encourage repeat recidivism at a much higher rate than it if does not get through.
Let us go back to the myth. Conservatives stand in the House repeatedly, and in public even much more often, and claim to be tough on crime, but this bill is the classic example of them being not smart on crime at all, but also being highly hypocritical when they take that.
It is one of a series of bills that has not received any attention from the House and not passed through to final debate because of decisions made by the government, whether it called the election in a complete contrary theme to the legislation the Conservatives themselves had passed and which they again had promulgated as a major reform then promptly ignored and breached, but any number of crime bills some of which were in areas that did not need to be dealt with. They just get sloughed off because they call an election or they prorogue the House and we have to start all over again.
We have seen that repeatedly, literally in the range of 10 to 20 bills that are constantly being shoved backwards because the government is much more interested in its political survival than it is in dealing with those issues in our society around crime.
I will make a second point before I go specifically to Bill because Bill C-16 raises this issue. I have been saying repeatedly in the House, at every opportunity I get, that we badly need a systematic, holistic review of our Criminal Code.
We see it in the sections, and I hope, if I have enough time today, I will be able to point some of these out before I finish my speech on Bill . However, we have huge contradictions in the Criminal Code, repeated contradictions, both with regard to the nature of the conduct we are trying to make a crime and with regard to sentencing.
We will see situations where I think the average Canadian would say that obviously this is the range of penalty and punishment that this crime should elicit. Then they will take another section that has more extensive penalties and punishment and the crime itself is of much less serious consequence in the eyes of the average Canadian. That is repeated over and over again. There is huge duplication in the Criminal Code.
We have been, and the government is particularly guilty of this, piecemealing amendments to the code way too long.
It is interesting, if we look at the experience in the United States and to a lesser degree in England, their approaches have been much more systematic in major reform. There are some ideas we could learn from those. I will not go on with my diatribe on that, but we badly need to do something about the Criminal Code.
Let me finish with this in this regard. One of the things where we could have done this was with the Law Commission, which was promptly done away with in the first term of the government. It was the ideal body in the country that could have initiated this. In fact, it was beginning to do some work on what was a crime, what should be a crime. It was beginning to do research on it when all of its funds were cut by the government. I think that happened in the 2007-08 budget.
Had that not happened, we might have finally seen some meaningful movement on getting that major reform to the code, which would make the job of our police officers, our prosecutors and our judiciary a lot easier than it is now.
Going to Bill , to set this in context, roughly 14 years ago, September 1996, we introduced into the code the concept of conditional sentences. What conditional sentences were to do was part of the overall reform we were doing through that period of time, trying to make our criminal justice system not only more fair but more efficient, more effective. Overall we have seen that we have made some significant progress in that regard by reducing the rate of crime, particularly violent crime, in this country.
I fight oftentimes on the justice committee, as I did on the public safety committee when I was there, with my Conservative colleagues about not seeing the numbers right or numbers being manipulated, which I find frankly quite insulting to Statistics Canada, specifically Juristat that does an excellent job with the statistics. But the bottom line when we get into that debate is we cannot argue about the murder rate. In 99% of the cases there is a body or witnesses to say this person was murdered. We cannot argue about that, and the reality is that the murder rate in absolute numbers, not just in percentages but in absolute numbers, has been dropping for the last 20 to 25 years. We peaked in Canada at about 900 murders in one year. We are now down, averaging over the last few years in the range of 610 to 650. So there has been that kind of drop in murders in this country.
Over that 25 year period, our population would have gone up by 10%, 12% or 15%, so the murder rate has dropped quite dramatically. Part of that is attributable to the reforms we have carried out through this period of time, and the conditional sentences were one of those reforms. We introduced them. The concept behind them is, and this has been found all the way up to Supreme Court decisions, that they are a form of incarceration. This always gets ballyhooed by some of the pundits but mostly by the Conservative Party, but they are in fact a form of incarceration. Prisoners are in their own residences not in institutions, but under very strict conditions, and I think this is the point again that the Conservatives regularly forget, much stricter conditions than we can do under either probation or even under parole, when prisoners are coming out of a federal institution.
The other point one has to make about a conditional sentence is that it cannot be used, no matter what the charge is and what the facts are, unless the judicial officer makes the determination that the appropriate sentence would be less than two years. That is the way it has always worked since 1996, in spite of some of the amendments we made a few years ago. That is still the basic condition. Judicial officers at whatever level of court they are sitting have to hear all the facts of the crime, and the facts around sentencing, and then make a determination that if they are going to send the person to custody, to incarceration, they are going to send him or her to a provincial institution because the determination, after hearing all the facts, is that the person should be incarcerated for less than two years. No matter how severe the offence is, on its surface and after looking at all the facts, judicial officers are determining a sentence of less than two years.
Everybody in the House knows that if people are going to be sentenced to less than two years, they are going to be sentenced to a provincial institution. So the incarceration rate we are talking about, if the bill were to go through, is all going to be about individuals who would be going into provincial institutions. Those people would no longer be eligible for conditional sentence; the judge would determine they are going to be incarcerated. As is so typical of the government, no arrangements are being made with the provincial governments to pay for all those additional spaces.
I want to highlight this by pointing out that the first crime bill the Conservatives brought into the House in 2006, after they were elected, was Bill and it dealt with this issue. At that time they introduced about 40 sections of the Criminal Code that would no longer be eligible for conditional sentences.
I thought the height of hypocrisy was when they did their public relations work on this and they talked about these being serious violent crimes that were no longer going to be eligible. I have to say, and I say this with some pride on the part of myself, my party and the opposition parties, that there were four or five, maybe six, sections of the code that in fact did deal with serious violent crimes. Some were sexual assaults; some were robbery with violence; they were those types of crimes.
The opposition parties said that the government was right, that people who commit these crimes and are convicted of these crimes, even when the judge is saying they should not go to jail for more than two years, should not be eligible for conditional sentences. We agreed to that.
However approximately another 35 sections had nothing to do with violent crime. The one I always use as an example of these sections that we were not going to be able to consider conditional sentencing for was falsifying a testamentary document such as a will or trust document. That was going to be excluded from consideration of the use of conditional sentence. And we could go through the list. There were some forgery sections that are clearly nothing to do with a violent crime. At the end of the day, the opposition parties stripped that bill of those 35-odd sections, dealt with the serious ones and passed it, and it is now law.
There is one other point we have to make about Bill , because to some degree, not as severely, it is going to be repeated if Bill goes through. Early on in the committee process of Bill C-9, I asked the Department of Justice to tell me and the committee how many more people were going to go into custody. At the time, and it was not much smaller then, there were about 12,000 people in custody. If Bill C-9 had gone through as originally proposed by the government, there would have been an additional 5,000 people incarcerated in our provincial institutions every year.
The point I want to make, and we are seeing this again when we see the and the come before their respective committees, is that they do not know, and if they do know, they are obfuscating what is in fact the reality. At that period of time, both those ministers were in front of the justice committee and neither one of them knew, until we dug that information out of the Department of Justice, how many people were going to be incarcerated. But they were quite prepared to go ahead and pass that kind of legislation for charges that clearly fit exactly into the rationale of why we started with conditional sentences. They were going to exclude them from use and had no idea of how many people were going to go into custody.
We are seeing the same thing repeated this time. Maybe not with the report that is going to be coming out this week from the Parliamentary Budget Office on how much it is going to cost for one of the other bills that has gone through this House and is now law, but I am still expecting the to show up at the justice committee, assuming this gets there, and say to us, “Do not worry. Be happy. There is enough room in our custodial settings to take care of all the additional people who are going to end up there.”
If he says that, he is going to be saying it from a complete base of ignorance, because we know, and we heard it from my colleague from the Bloc, that in all of the provincial institutions, without exception, right across all 10 provinces and all 3 territories, their facilities are bulging.
We have an international responsibility. We have signed protocols at the international level to not double-bunk. We have signed those. That is a treaty that this country has committed itself to, and there is not one province in the country that is abiding by it.
We are double-bunking and in a lot of cases triple-bunking, and we are beginning to do it more and more in the federal institutions. Therefore, we are breaching the international commitments we made to other countries.
I want to make one more point about the use of this device, again referring to my colleague who raised the revolving door issue. It is about recidivism. The statistics show and have shown for at least the last 10 years that if someone is put under control under conditional sentencing, within the first year, since that is the comparison we are doing, there is an 11% rate of recidivism where another crime is committed. Oftentimes, I have to say, the vast majority of that 11% is not actually a new crime but a breach of the conditions the person is under. The other 89% live up to the conditions. They are law abiding and do not commit any other crimes.
Mr. Stephen Woodworth: They don't get caught.
Mr. Joe Comartin: The member says they do not get caught. Let us take a look at who does get caught.
Taking the same population base but looking at those who have been incarcerated and what happens in their first year out, 30% are caught and charged with additional crimes. Again, a number of them are clearly breaches of their parole but others are new crimes. That is the reality. If we look at the longer term, the rate of recidivism is even worse for those who were incarcerated. The rate spreads even more than that 11% to 30%. It has been an effective tool.
There is no question that there are certain crimes for which this should not be used and a couple of them, in fact, are in this bill. It is for that reason and that reason alone that we will be supporting it going to committee. We have every intention of taking out the offensive parts.
Let me deal with those offensive parts. I know there was a question earlier today about the disrespect that the government consistently shows to the judiciary, and this bill is another example of it.
There are a couple of clauses in the bill that would shift discretion from the judiciary to the prosecutory. The way that works is that a prosecutor would decide that a person was going to be charged with a certain offence but would have a choice as to whether he or she were going to proceed by indictment, which is the more serious way to do it, versus summary conviction. If the prosecutor decided that it would be by way of indictment, the judge then would have the use of this tool removed from his or her tool kit. He or she could no longer use it, simply by that decision. Even though the judge at the end of the day might say he or she would not be sending a person to a federal penitentiary and not committing him or her to custody for more than two years, the judge still would not be able to use the conditional sentence simply because of the decision by the prosecutor.
Our system should not function that way. It historically has not functioned that way. We have trusted our judges. I will repeat, as I have so many other times in the House, that we have the absolute right to be proud as legislators and citizens of Canada in knowing that we have one of the best judiciaries in the world. I do not think there are any in the world that are better. I might argue that one or two are peers of ours. But we would be taking away that discretion if we passed this bill, in those two clauses in particular.
There are other clauses in here where clearly conditional sentences, given the right set of facts, I would say in the majority of cases, should apply. If the judge says he or she is not sentencing someone to more than two years, conditional sentencing should still be available to the judiciary in those cases. I will get into that more in committee.
Mr. Speaker, it is a pleasure to speak in support of Bill . This bill would end house arrest for property and other serious crimes by serious and violent offenders.
It is good to hear that the NDP is going to vote in favour of this to move it to committee. I am sure our committee, chaired by the member for , will do good work on this bill.
Bill addresses the issue of conditional sentences or house arrest as it is often described. The issue is not a new one and has been considered by this chamber in recent years. While that debate is relatively fresh in our minds, there does not seem to be an appreciation for the operation and principles of sentencing in criminal cases in Canada, and within that, the proper role for any sentencing option, including conditional sentences. This is what I will use my time to address.
It has become clear to me over the years here, as illustrated by the nature of the debate over various aspects of this government's tackling crime agenda, that the sentencing regime, while widely criticized, is understood by relatively few people.
Criticisms based upon misperceptions or misunderstandings contribute little to a serious discussion about a serious issue. In fairness, I recognize that part of this has to do with the sheer complexity of modern criminal law, which must deal with everything from single assault through complex commercial crime, all the way to terrorism and to cybercrime that uses the most advanced technologies.
Part of it has also to do with the nature of the Criminal Code sentencing regime itself, which contains a lengthy list of purposes, objectives, and principles that have often been supplemented by complex legal rulings from different levels of courts all across this country.
It is not hard to see why those who are not formally trained in law, as I am not, may find it challenging to understand immediately the specifics of particular reform proposals, such as those before the House today.
Yet, our role as lawmakers is to work through these complexities and through these challenges to ensure that we understand the current shortcomings of the law and how the proposed reforms we are discussing would effectively address those shortcomings within the overall sentencing regime.
Mr. Speaker, I will be sharing my time with the member for .
To really understand the current shortcomings of the conditional sentencing regime and the central problem that Bill intends to rectify, we must understand the original rationale for the creation of conditional sentences.
Shortly stated, conditional sentence is a sentence of less than two years that a judge allows offenders to serve in the community subject to a number of conditions whose breach could send them directly to prison.
I can readily acknowledge that for the average Canadian the notion of a conditional sentence seems somewhat confusing and even contradictory at times.
While the conditional sentence is a form of punishment, it is not easily categorized because it straddles the line between prison, probation, and even in some cases has the markings of the hallmarks of parole.
For instance, it is not actual jail time because if the offenders satisfy all the conditions that are imposed upon them, they will never spend a single day in prison despite the nature of the offence for which those individuals were convicted. Nor is it probation, for a probation order is typically made in the case of a suspended sentence and is enforced quite differently with greater difficulty than a conditional sentence.
As the name implies, a conditional sentence takes the form of a sentence. By the same token, a conditional sentence is not parole since the offender is not released after having served an appropriate period of time in a prison or a penitentiary under the authority of our Canadian correctional system. It is the sentencing court, not a Parole Board, that exercises the discretion to order a conditional sentence in lieu of jail time.
In hindsight, it is clear from the statements of the original sponsoring minister back in 1994, as well as from subsequent court judgments, such as the Supreme Court of Canada's decision in R. v. Proulx, that the conditional sentence was conceived as an alternative to imprisonment and as one way to reduce Canada's rate of incarceration. We heard the NDP bring that forward here this afternoon.
While this is a laudable objective, it cannot be allowed to detract from the protection of society as the guiding principle or to diminish the right of that society to denounce particularly heinous conduct and to punish those responsible for that conduct.
This brings me to the central issue that I want to raise with regard to conditional sentences. Prior to this government's most recent conditional sentencing amendments in 2006, there were four criteria for a conditional sentence order. First, the sentence had to be less than two years. Second, the person had to show that he or she was not deemed to be a danger to society or to the community. Third, there was no mandatory minimum term of imprisonment. Fourth, there had to be consistency with the fundamental purpose and principles of sentencing.
The discretion that was granted to judges by these criteria was quite wide. In fact, from the outset, critics have reasonably argued that the discretion accorded by Parliament in the early years of the conditional sentence regime itself was overly broad. For example, with regard to the first and second criteria, even now most sentences in Canada are less than two years and, among the large number of Criminal Code offences, there are still relatively few that call for mandatory minimums.
By the same token, the third criteria originally asked a sentencing judge to assess the danger of an offender to his or her community, but without offering any supporting criteria against which to make an assessment. The fourth criteria provided insufficient direction for the proper use of a conditional sentence. The purpose and principles of sentencing cover a lot of philosophical ground in that they require sentencing judges to balance denunciation, deterrence and separating an offender from society by methods of rehabilitation, restitution and the development of a sense of social responsibility by the offender. That responsibility was placed on the judiciary.
Criteria one and two illustrate what many believe was so radically wrong with the conditional sentence regime as originally enacted: the focus on the length of the sentence rather than on the nature of the offence, the character and criminal record of the offender and not so much the consequences for the victim of that criminal's action.
It was particularly notorious that the conditional sentencing regime as originally developed did not see fit to explicitly exclude particularly odious crimes such as child sex offences. In such cases, the repugnant nature of the offence, the character of the offender and the consequences for the victim should have been paramount considerations and should have automatically made such offences ineligible for conditional sentences.
It should not be surprising, therefore, that the courts had difficulty grappling with conditional sentences. This was especially so after the Supreme Court in R. v. Proulx appeared to endorse the notion that no offences were presumptively excluded from the conditional sentence regime. In fact, Proulx offered very little guidance to sentencing judges, nor did the Supreme Court itself appear to have a consistent approach to conditional sentences. Four conditional sentencing cases decided by the Supreme Court at the same time as Proulx highlighted the apparent lack of judicial consensus on these issues.
I see that my time for debate is up. I am very pleased that the government has moved forward with this. We have done this before in Bill . We have done it at other times in the House. We have debated it recently in past Parliaments. I look forward to this bill being passed quickly, moved to the committee, studied, and brought back to the House. This is going to make Canada safer and a better place for all.