JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Monday, November 25, 2002

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1535

The Chair (Mr. Andy Scott (Fredericton, Lib.))

Mr. David Daubney (General Counsel, Sentencing Reform Team, Department of Justice Canada)

¹

1540

¹

1545

¹

1550

¹

1555

º

1600

º

1605

º

1610

The Chair

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

º

1615

Mr. David Daubney

Mr. Chuck Cadman

The Chair

Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ)

M. David Daubney

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1620

Mr. Richard Marceau

M. David Daubney

Mr. Richard Marceau

M. David Daubney

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1625

The Chair

Mr. Derek Lee (Scarborough—Rouge River, Lib.)

Mr. David Daubney

º

1630

Mr. Derek Lee

Mr. David Daubney

The Chair

Mr. Kevin Sorenson (Crowfoot, Canadian Alliance)

Mr. Derek Lee

Mr. Kevin Sorenson

Mr. Derek Lee

Mr. Kevin Sorenson

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1635

The Chair

Mr. David Daubney

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1640

The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance))

Mr. John McKay (Scarborough East, Lib.)

Mr. David Daubney

Mr. John McKay

Mr. David Daubney

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1645

Mr. John McKay

The Chair

Mr. Richard Marceau

M. David Daubney

Mr. Richard Marceau

Mr. David Daubney

Mr. Richard Marceau

Mr. David Daubney

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1650

The Chair

Ms. Carole-Marie Allard (Laval East, Lib.)

M. David Daubney

Ms. Carole-Marie Allard

Mr. David Daubney

Ms. Carole-Marie Allard

M. David Daubney

The Chair

Mr. Chuck Cadman

Mr. David Daubney

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1655

Mr. Chuck Cadman

Mr. David Daubney

The Chair

Mr. Paul Harold Macklin (Northumberland, Lib.)

Mr. David Daubney

Mr. Paul Harold Macklin

The Chair

Mr. John McKay

Mr. David Daubney

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1700

Mr. John McKay

Mr. David Daubney

Mr. John McKay

The Chair

Mr. David Daubney

»

1705

The Chair

Mr. David Daubney

The Chair

Mr. Richard Marceau

The Chair

Mr. Richard Marceau

The Chair

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 004

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Monday, November 25, 2002

[Recorded by Electronic Apparatus]

¹  (1535)  

[English]

    The Chair (Mr. Andy Scott (Fredericton, Lib.)): I call to order the fourth meeting of the Standing Committee on Justice and Human Rights--today, pursuant to Standing Order 108(2), the consideration of the issue of conditional sentencing.

    We have as a witness today general counsel from the sentencing reform team of the Department of Justice, David Daubney, no stranger to this committee.

    As members will recall, we were asked to undertake this review by the former Minister of Justice. We have scheduled about four days of hearings, and at the end of those four days we will decide where to go from there.

    So this being the first of those hearings, welcome, Mr. Daubney.

    Mr. David Daubney (General Counsel, Sentencing Reform Team, Department of Justice Canada): Thank you very much, Mr. Chair, honourable members. I'm very happy to be with you today to provide whatever help we at the Department of Justice can, as you begin your review of the operation of conditional sentencing.

    In this regard I brought a fair bit of material with me. I hope you'll bear with me if in taking you through some of it I may go over your usual allotted time for opening statements.

    First is just a copy of the Criminal Code provisions on the sentencing principles and the conditional sentence order regime, including the prerequisites for its use. I've also brought along a copy of the Proulx case, the leading case on conditional sentences from the Supreme Court. As you know, it's been just over six years since this option became available to sentencing judges, so your work is certainly timely.

    The conditional sentence was enacted in July 1995 as part of a comprehensive reform scheme through Bill C-41. The Supreme Court of Canada characterized the legislation as a “watershed marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law”.

    The court went on to say, and this was in the Gladue case:

    “The availability of the conditional sentence of imprisonment, in particular, alters the sentencing landscape in a manner which gives an entirely new meaning to the principle that imprisonment should be resorted to only where no other sentencing option is reasonable in the circumstances.”

    On January 31, 2000, the Supreme Court of Canada rendered its decision in five conditional sentencing cases. In the leading case, Proulx, it set out principles for interpreting the provisions of the code. I've provided you, as I said, with a copy of the judgment. If you have a look at the summary in paragraph 127, you'll see the principles the court set out. I won't mention them all, but I will for the record refer to some of the important ones.

[Translation]

    These principles are the following. The purpose of the Bill is to reduce the use of incarceration as a sanction and to extend the application of the principles of restorative justice in sentencing. Conditional sentencing must include both punitive and rehabilitation aspects. It must contain punitive conditions that are restrictive of the offender’s liberty. Accordingly, conditions prescribing house arrest should be the norm, not the exception. There are no presumptions in favour of or against a conditional sentence for specific offences.

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[English]

    The court went on to say that it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences, holding that such presumptions would introduce unwarranted rigidity into sentencing and do not accord with the principle of proportionality.

    The court suggested that a conditional sentence need not be of the same length as a sentence of incarceration. It found that conditional sentences are generally preferable to incarceration when a combination of punitive and rehabilitative objectives are to be achieved.

    Finally, the court confirmed the view it's taken in prior cases that sentencing judges have a wide discretion in the choice of appropriate sentence and they are entitled to considerable deference from the appellate courts.

    Since that case came down, Mr. Chair, my team at the justice department, who are with me today, have been monitoring the case law on conditional sentences. As of last week, approximately 300 decisions, primarily of appellate courts, have been reviewed.

    In the Yukon, Nunavut, NWT, and also in New Brunswick and Prince Edward Island we've also included some decisions of the superior courts. The cases date from February 2000, just after the judgment, to this month. A copy of that is being handed around now. I'll just take a second to lead you through one or two examples so you can see how this is set out.

    The cases are organized by province and territory, and under each province they're organized in alphabetical order. The provinces aren't in alphabetical order, I may say. Ontario is the first, and as one would imagine, most of the appellate cases have been decided in that province. If you look at the first case, as an example, it gives the name, date, the offence, whether it was granted, “G”, or denied, “D”, and what the circumstances were for either granting or denying a conditional sentence--that is, the mitigating and aggravating circumstances that the court noted.

    We don't have, unfortunately, complete data. As you'll see under “optional conditions”, we've tried to input as much data as we could from the actual judgments as to the offender's sex, age, whether or not he was an aboriginal person, whether a probation order was added after the conditional sentence, then the length of the sentence. We also have a final column on whether or not the person was a professional, to deal with some of the breach of trust cases. You'll recall, those of you who were in the House when Bill C-41 came through, that there are deemed aggravating circumstances in the Criminal Code now, including breach of a position of trust or authority, abuse of an offender's child or spouse, and other deemed aggravating circumstances. Where those are available or in play, we've tried to pick them out.

    I should say that the source of this information is largely--of course it's all public information--taken from Quicklaw, which remains one of the better sources for quick review of the jurisprudence.

    When you've had a chance to go through the charts, you'll see that it's pretty clear that the courts right across Canada have quite quickly incorporated the direction they receive from the Supreme Court. They've shown a tendency to make the conditional sentence longer than the period of incarceration that would otherwise have been ordered. In fact, the median length of conditional sentences has increased following Proulx to about eight months--it was about six months prior to that.

    Courts have increasingly been crafting conditional sentences in such a way as to make a clear distinction between probation as a primarily rehabilitative sanction and a conditional sentence as a form of imprisonment. The courts quite often restate the direction of the Supreme Court to the effect that conditional sentences can reflect sentencing principles of denunciation and deterrence. In doing so, they put greater emphasis on conditions that are restrictive of the offender's liberty. As a result, we are seeing a clear trend towards greater use of house arrest and curfew conditions.

    In Nova Scotia, for example, almost all conditional sentences have such conditions. In most provinces that use them--and they are a minority of provinces--there is resort also to electronic monitoring of offenders in selected cases.

    In addition, it's common for courts to add a period of probation of up to three years to follow the conditional sentence, so it's not unusual to see sentences that effectively keep the offender under supervision for up to five years.

    Where the offender needs treatment and close supervision for the foreseeable future, this is seen as giving greater protection to the public than would a relatively short custodial sentence of a few months.

¹  (1545)  

In this regard, we have to remind ourselves that the average provincial sentence in Canada is in the range of 30 to 45 days, and that provincial offenders in custody are released earlier than those maximum sentences on parole or earned remission.

    By contrast, there is no parole from a conditional sentence. The offender serves the full period of the order. It's also worth noting that the conditional sentence order is the only provision in our code where treatment can be ordered without the consent of the offender.

    With respect to the types of conditions that are being applied to conditional sentences, the courts are taking care, I think, to craft sentences that address the sentencing objectives they wish to emphasize. These objectives are set out in section 718. If denunciation and deterrence are the primary objectives, they will either order prison or, if a conditional sentence is deemed appropriate, they will attach restrictive conditions like house arrest or curfew. If rehabilitation and reparation to the victim are the primary objectives, you will see conditions that include payment of restitution to the victim, community service orders, orders of non-contact with the victim, and, if there are underlying causes that have contributed to the conduct, which is, of course, almost always the case, compulsory attendance at treatment or counselling.

    With respect to the types of offences for which a conditional sentence can be ordered, despite the admonition of the Supreme Court about deference owed to trial judges, there does appear to be, as you'll see from the chart, just the very numbers involved, a willingness on the part of appellate courts to exercise control over the decisions of lower courts. In particular, where the lower courts have granted conditional sentence orders in cases of sexual assault, spousal assault, or an offence against a child, the appeal courts have been inclined, in the absence of exceptional circumstances, to overturn a community sentence on the grounds that it does not adequately reflect principles of deterrence and denunciation.

    In some cases, they've raised the length of sentence to a penitentiary range--that is, two years plus--which, of course, makes the granting of a conditional sentence order impossible. Where the courts have upheld a conditional sentence for an offence of a sexual nature, the facts frequently show that the offence was of a historical nature--that is, it may have occurred 20 to 40 years previously--and that the offender has recognized responsibility and remorse. He has not engaged in other criminal behaviour since the historic offence, or he is in poor health or of advanced age. Many of these offenders are in their seventies or eighties.

    For example, Mr. Chair, an examination of recent cases from the Ontario Court of Appeal, which are listed in the chart, demonstrates that conditional sentences will rarely be upheld for breach of trust sexual offences, breach of trust frauds, or alcohol-related driving offences involving significant bodily harm or death.

    My colleague is just passing out a copy of something I'm going to speak to now.

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[Translation]

    In September 2001, provincial/territorial ministers of Justice agreed on a resolution calling on the federal government to amend the Criminal Code to provide for a presumption that conditional sentences not be available for serious and violent offences, such as those involving death, and children as victims, and to give serious consideration to an amendment that precludes the availability of conditional sentences for these offences.

    At their recent meeting in Calgary, earlier this month, some provincial/territorial ministers responsible for justice expressed similar concerns. They also showed interest in this committee's study. As for our minister, he undertook to refer to the committee any instances pointed out to him by his provincial/territorial colleagues of conditional sentences perceived as inappropriate.

[English]

    To date we have received no such list--or at least we haven't received it from the minster's office if he has sent it--but we will of course provide you with those if they are forthcoming.

    Mr. Chair, those who oppose the proposal to enact statutory limits to the use of conditional sentences do so because of a conviction that it would largely eviscerate the sanction as an effective alternative to custodial sentences. Placing sole emphasis on the nature of the offence would also undermine the fundamental principle of sentencing, which requires the sentence to be proportional both to the seriousness of the offence and the blameworthiness of the offender. It would also almost certainly result in courts reverting to the pre-Bill C-41 option of probation, and this would provide considerably less public protection than a well-crafted conditional sentence can.

    In this regard it's important for members to be aware that prior to the introduction of conditional sentences in 1996 it was common for sexual and violent offences and even manslaughter to attract non-carceral sentences. Even now, with the conditional sentence option, both probation and fines are commonly the most serious sanction for violent offences, and this is shown graphically in the two slides I've asked that you get a copy of now.

    The first one I suggest you have a look at is the one headed “Conditional Sentence: Selected Offences”, which shows the breakdown between violent offences and property offences. Violent offences, by the way, are essentially defined as homicide-related offences--which for a conditional sentence can only be manslaughter because for first- and second-degree murder a minimum punishment, as you know, is mandatory--attempted murder, assault, sexual assault, other sexual offences, robbery, and abduction. Property offences include theft, fraud, break-and-enter, and motor vehicle theft.

    The other category, which isn't shown on this slide, includes everything else, basically drugs, administration of justice, impaired driving, weapons offences, and so on.

    You'll see from this that a very significant number of so-called violent offences are punishable by probation as the most serious punishment. In fact, 57% of them are, and only 4% are punishable by a conditional sentence as the most serious punishment. In fact, 7% of violent offences are punishable by a fine only as the most serious punishment.

    If you look at the next slide, which gives you a breakdown by certain selected offences, you'll get a little better understanding of the kinds of violent offences that attract probation. If you look at common assault at the end of the spectrum of that chart, you'll see that 66% of those so-called minor assaults are punishable by probation. That's almost nine thousand in the year under review, 2000-2001. Only 2% were conditional sentences. For major assault, almost half were punishable by probation. I think it's something you have to bear in mind as you review the cases and the headlines that deal with conditional sentences--and probation, for that matter--with respect to violent matters.

    As you would expect, sexual offences attract prison as the most serious penalty. But again, with sexual assault, there is a pretty significant amount of probation. Here again, the range of conduct is wide. There's level one sexual assault, levels two and three, and so on. Most of those would be in the lower level assaults, not aggravated assault.

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    Now, if Parliament were to remove the possibility of using a conditional sentence for certain types of offences, I think it's probably fair to predict that the courts, in many cases, will revert to suspended sentences in order to achieve a fit sentence, a proportionate response that reflects the degree of responsibility of the offender.

    A good example of the need to maintain judicial discretion, in the view of the department, and to be cautious about policy dialogues based on trial by headlines is one of the cases mentioned in press reports of the Alberta Minister of Justice, Dave Hancock, who a year ago, just prior actually to September 11, when ministers were to meet at their annual meeting, issued a press release that signalled his intention of raising the issue of conditional sentences at that meeting. The first case he raised as an example was one described in newspaper reports. I'm now reading from the Edmonton Journal of September 5, 2001, in two lines as follows:

    “A woman was given a conditional sentence of two years less a day for hiring a would-be assassin to kill her husband. The woman was caught when she tried to hire an undercover police officer for the job”

    What was not mentioned in that report is that this woman, Mrs. D.B.--there was a partial ban on publication--had been abused by the husband she had tried to get someone to knock off for over ten years. In the words of the court, she

    “...has been frequently hospitalized as a result of the abuse, still lives in terror, and is under extremely heavy medication. She is unable to read or write because of a childhood accident which resulted in skull damage and the installation of a steel plate therein.”

    At the time of D.B.'s sentencing the complainant-victim was serving time on a domestic violence charge, with D.B. as the complainant. Further charges were pending in British Columbia against the complainant-victim.

    As the quote said,

    “What we have here is a victim who has been sentenced to provincial time for batterings perpetrated upon the accused. We have an accused at the end of her tether trying to end the abuse of her and her children, of which there is proof in the Westlock Hospital and RCMP files. ... Her efforts are clumsy and amateurish. She has shown remorse. She is a first offender, sole custodian of her children. As with all battered spouses, she has very low self-esteem.”

    Mr. Chair, I'm satisfied that if most Albertans were aware of these mitigating circumstances, they would not find the two year less a day conditional sentence imposed in this case to be objectionable.

    You will know, Mr. Chair and members of this committee, there's ample research on public opinion about sentencing that demonstrates that if the public is given sufficient information on relevant aggravating and mitigating circumstances, those circumstances that the court weighed in arriving at a sentence, they will be more supportive of that sentence than they would be had they simply read the bald facts of the case reported in the media.

    We're now circulating some recent opinion research commissioned by our research directorate relaying the public attitudes to conditional sentences. I'd be glad to try to respond to any questions you might have about that afterwards.

    I'd like to conclude by saying a few words on the data, on the statistics, and in this connection I will be distributing copies of a bulletin from the Canadian Centre for Justice statistics entitled Highlights of the Conditional Sentencing Special Study. I'd like to take you through that bulletin very quickly if I may.

    The bulletin is dated June 2002. You'll see on page 2 that the purpose of the study is to provide a preliminary examination of the results of their work as well as the most current data from the adult correctional services survey and the adult criminal court survey. We're told by CCJS that we will have their final report in February. So hopefully that report will be available to your committee before it does its final report.

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    Principal findings are set out there. There has been a considerable increase in the rate of conditional sentences, and a corresponding decrease in the rate of custody admissions.

    You will see in the middle of the page that in most provinces, property offences are the most common offence type, but in Manitoba and Saskatchewan--Saskatchewan is virtually tied, actually--violent offences are more common.

    In terms of the caseload in the fiscal year 2000-2001, there were 16,400--this is on top of page three--conditional sentence admissions in the 10 jurisdictions that exclude Manitoba, the NWT, and Nunavut. This represents about 10% of the total admissions, compared to about 8% in 1997-98.

    The conditional sentences, as I've said, have had an impact on the number of offenders supervised in the community, as one would expect. The number on probation back in 1995-96, before conditional sentences were proclaimed, was 87,800. It is now, with combined probation and conditional sentence counts, 98,500, an increase of 12%.

    The summary at the bottom of page 3 indicates a rate of sentence custody decrease of 17% from 1997-98 to now, a rate of conditional sentence admissions that increased by that same number, and probation remaining relatively stable during those years.

    I would like you now to turn to page 6 to have a look at table 2, which attempts to divide the offences in most jurisdictions by “violent”, “property”, “other”, or “drugs”. I think our main focus will be on “violent” and “property”.

    I just draw to your attention the fact that drug offences are pretty much consistent across Canada. Other Criminal Code offences actually aren't that consistent--they are everywhere except Nova Scotia. If you compare “violent” with “property” by jurisdiction, you'll see P.E.I.--just talking about the last year, 2000-2001--showing 12% violent, 52% property; Nova Scotia 28% and 30%; Ontario, 33% and 38%; Manitoba, the exception to the rule, 44% violent and 28% property; Saskatchewan, 38% violent, 37% property; Alberta, a big difference, 26% violent and 46% property; B.C., 24% and 37%. “Violent” means basically “person offences”, as they are sometimes called, a list of the main categories of which I read to you earlier.

    We see on page 7 the use of conditional sentences in combination with other sanctions, mostly probation but also restitution orders--for example, 25% of the time in Alberta--and loss of things like drivers' licences, firearms certificates, and so on. Firearms prohibitions, I should say, are a common feature of conditional sentences.

    I just want to draw to your attention, Mr. Chair--you may well wish to hear from some of the academics directly--that Julian Roberts and Tom Gabor of the University of Ottawa criminology department have done a paper, which will be shortly, if it is not already, out in the Canadian Criminal Law Review, called “The Impact of Conditional Sentencing: Decarceration and Widening of the Net”.

    Briefly, to convey the conclusions they came to after reviewing this interim data that CCJS have given us, they say conditional sentencing has had a significant impact on the rates of admission to custody, which have declined by 13% since the introduction of conditional sentencing. That actually goes back another fiscal year.

º  (1605)  

    This represents a reduction of approximately 55,000 offenders who otherwise would have been admitted to custody. They say there was also evidence of some net widening. Approximately 5,400 offenders who prior to 1996 would have received a non-custodial sanction, probably probation, actually got a conditional sentence, which they point out is a form of imprisonment.

    However, they go on to say, despite that:

    “...the reduction in the use of incarceration as a sanction in Canada in such a short space of time is remarkable, and places this jurisdiction apart from others in which attempts at reducing the use of incarceration in recent years have had very little impact.”

    They mention England and Wales in this regard. England introduced a suspended sentence--actually, we looked at it as a model for ours, in part--and there, there's been very significant net widening and no reduction in the use of custody. In fact, in England and Wales the prison population reached a record level of over 70,000 individuals at the end of 2002--I guess their fiscal year is the same as ours; I'm not sure.

    So the sentence does appear to have realized what one of the primary objectives was, which is reducing the number of individuals in jail who meet the criteria of section 742 of the Criminal Code and in particular are not a danger to the community.

    Let me summarize quickly, Mr. Chair, by telling you that the department's view is that conditional sentences have become an entrenched part of the criminal justice system. There have been some decisions that seem puzzling; there will always be sentences that attract controversy, but on the whole, this sentencing option is working well.

    The data I've just referred you to indicate it has contributed to a significant decline in custodial accounts with remarkably little net widening. In fact, in a more recent article by Julian Roberts alone that is also in a law journal coming out shortly, he talks about this being the only model in the western world that has attracted the kinds of custodial decreases that were intended.

    Finally, Mr. Chair, the department would caution against the creation of a list of ineligible offences or a presumption against its use in certain circumstances. While we certainly understand concerns about the apparent and sometimes real misuse or misapplication of conditional sentences, we should not underestimate the challenges of trying to limit access to the option on an offence basis.

    Such an approach raises a number of considerations. For example, which offences would be included in the schedule? Would all sexual offences, child abuse offences, and domestic violence matters be included? Or would the schedule only contain the most serious of these offences?

    As I said earlier, various offences cover a wide range of activity, and defining seriousness is problematic. The offences for inclusion in the schedule would require very careful definition, because if some offences are excluded from the schedule, various constituencies may call for their inclusion. So it would be, I would suggest based on past experience, an ever-expanding list.

    Another important issue is would the creation of a schedule result in plea negotiations taking place about the offences charged, and agreements that only those offences not included in the schedule would proceed? I think the answer to that is almost certainly affirmative as well. We would be moving discretion from judges in open court to crown attorneys and defence counsel behind closed doors.

    The committee will have to ask itself whether the absolute removal of judicial discretion with regard to the appropriateness of the sentencing tool is desirable. Is it consistent with prior legislative and sentencing practices? It would not appear to be consistent with the principle of proportionality.

    The argument in favour of a list or presumption focuses exclusively on the nature of the offence and eliminates consideration of mitigating factors of the offender and his or her relative blameworthiness in all of the circumstances.

º  (1610)  

    We know, Mr. Chair, that courts treat offenders differently according to their level of remorse; efforts made to rehabilitate themselves; efforts made to make restitution to the victim; a criminal record or lack of same; the historical or isolated nature of the offence versus a recent or repeat offence; the age or affirmity of the offender; and many other factors. If the conditional sentence option were to be removed for a fixed category of offences, some offenders would be sentenced to prison for sentences that would appear to the community to be unjust and disproportionate. Recognizing this, judges would be tempted to return to the option of probation. That would provide less public protection than the restraints on liberty possible and since proved common with a conditional sentence.

    In the final analysis, I think the question for you, as parliamentarians, is whether or not this state of affairs would be—to use the words of section 718—a contribution to “a just, peaceful and safe society”.

    Thank you, Mr. Chair.

    The Chair: Thank you very much, Mr. Daubney. I've been quite generous with the time, and I see future witnesses in the back and wouldn't want them to get the wrong impression.

    I'm going to Mr. Cadman, for seven minutes.

    Mr. Chuck Cadman (Surrey North, Canadian Alliance): Thank you, Mr. Chair.

    Mr. Daubney, I'd like to thank you for coming in, and I thank you for your presentation. I think you've given us a lot of stuff to read and a lot of things to consider here.

    I'll be very brief. I just want to go back to the points that you were making about the court suggesting we might not want to go down the road of placing limits on or fixing categories. The problem that I certainly run into—and I appreciate that conditional sentencing has its merits; I certainly am not arguing that point—comes when we get, as you say, some cases that you really have to give your head a shake at. I can recall one that certainly raised the hackles of people in my area in the lower mainland of B.C., and that was the Ursel case out of Aldergrove or Abbotsford. I won't get into that, but it involved a sexual assault. I'm sure you're aware of it. But it's when things like that happen that the public's confidence in the system itself is undermined. The system itself is undermined when we get those kinds of decisions, and it falls to us to try to be able to deal with that.

    As I say, I can understand the merits of conditional sentencing. I wasn't around for Bill C-41 because I wasn't here at that time, but my understanding was that there was some indication from the government at the time of the bill that Parliament didn't really intend that and wasn't going to put it in there, and then we had a decision out of B.C. that essentially said that if Parliament didn't put it in there, then the court wouldn't accept that as what Parliament wanted.

    How do we go about dealing with that kind of an issue? We try to explain to people or try to do town hall meetings and explain what conditional sentencing is all about, but then somebody comes up and points to this Ersall case. How do you explain that? How do we regain the public's confidence in the system? How do we re-instill that? If we were to go down the road of limiting or fixed categories, do you anticipate that there would be a problem at the Supreme Court level by doing that?

º  (1615)  

    Mr. David Daubney: I'll answer the second question first, because the answer is brief.

    Having read Proulx again over the weekend, my guess would be that there might not be problems with the Supreme Court, because they dealt with the issue that had in fact been recommended by the Attorney General of Ontario, who intervened in those cases with the suggestion that there be judicially created presumptions against its use in certain circumstances. The court said, no, that would not be appropriate. But Lamer said in his written reasons that it would be open to Parliament to do so, so I think the answer is that hopefully the court would respect the ability of Parliament to do so.

    With respect to the first question, the more general one of public confidence, I don't think there's an easy answer to that. Frankly, though, I don't think we're very well served by the reporting of sentences in this country. The two-liner I mentioned in the case of that woman in Alberta is clearly insufficient for a reader to know what was really going on in that case and to come to a judgment as to whether or not a conditional sentence was a fit sentence.

    All players in the system have to do more to do a bit of public education, frankly. That's one reason why Parliament put a requirement into Bill C-41 that written reasons for sentencing be given: so that there would be more expansive reasons. Over time, that would build up a body of jurisprudence that people could have access to.

    If my memory serves me—it was an early case—the particular case of Ursell led the government to amend the Criminal Code to add the prerequisite that a conditional sentence must be consistent with the purposes and principles of sentencing, which include denunciation, deterrence, and separation from society where necessary. Of course, it preceded the Supreme Court's Proulx examination by a couple of years. Since Proulx, I think we've been seeing far fewer of those kinds of cases that do make you wonder, and I'm satisfied that the regime is really unfolding much better. Understanding by judges and counsel is much greater than it was in those early years. One could expect to have had a period of some confusion with a brand-new approach to sentencing, but I think that confusion has pretty much disappeared now in our courts, from what I hear and see from reviewing the jurisprudence.

    Mr. Chuck Cadman: Thank you.

    The Chair: Thank you, Mr. Cadman.

    Monsieur Marceau, seven minutes.

[Translation]

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you, Mr. Chair. Thank you, Mr. Daubney, for your presentation.

    You've given us a lot of documentation. If the answer to my question is in there, please excuse me.

    Do you have any statistics about the people who got conditional sentences and who committed another offence while under that sentence? Do you have these figures?

    M. David Daubney: Not really. Would you mind if I answer in English?

[English]

    From having been on the committee for a while, I think many of you probably know that we unfortunately have very poor sentencing statistics in this country, and we don't have a great deal of evidence about breaches of conditional sentences.

    We have some data from some jurisdictions, so I'll give you what we have. I think you'll find that University of Ottawa professor Julian Roberts has a paper on this that can provide a little more detail than I'm able to.

    We do know that more conditional sentences have resulted in a breach in the last couple of years, either because of a breach of a condition of the sentence or because of the commission of a new offence, which in turn is a cause for a breach of the condition.

    I think that is happening because the supervision of conditional sentences has improved dramatically from what it was in the early years—not universally, but it's much better in most places than it was early on. There are more opportunities for probation officers to find a breach. Also, the number of conditions has increased quite a bit. There are now an average of just under five optional conditions in conditional sentence orders—one of the charts that you've been given shows the increase in that over the years—and that is leading to more opportunities for breaches, as well.

    Success rates have declined for those reasons, and also because conditional sentences are longer than they used to be, as I indicated earlier. But the majority are still fairly successful. In Saskatchewan, for example, successful completion is at about 77%. In Manitoba, it actually declined from 78% to 63% last year.

º  (1620)  

[Translation]

    Mr. Richard Marceau: I want to be sure I understand. For example, in Manitoba, successful completions are at 63%. This means that there was a breach of conditions in 37% of the case.

    M. David Daubney: Yes, a breach or a new offence.

[English]

    What is the judicial response? Again, we don't have the kind of detailed evidence that we would like. Hopefully, there will be more in the final report from CCJS, but you'll know that, under the regime, courts have a number of options. If a breach is proven, they can either do nothing, they can order the person to serve the balance of the sentence in custody or part of the rest of the sentence in custody, or they can change the optional conditions.

    In Manitoba, which again is one jurisdiction for which we do have information, 74% of the offenders were ordered into custody for a breach, and 50% of those were ordered into custody for the whole rest of the order. In B.C., the data that we have is getting old now—it's from 1999—but it was only 37%.

[Translation]

    Mr. Richard Marceau: You just gave us some figures. For instance, in Manitoba, there was a breach of conditions in 37% of cases. In my opinion, this explains the unanimous resolution of the provinces. It was unanimous. You seem to say in the conclusion of your presentation that you disagree with this unanimous resolution. If in Manitoba, for example, 37% of conditional sentences are not successfully competed, I really think there is justification for the provincial request that there be a presumption against conditional sentences in the case of some offences.

    M. David Daubney: That may be but I'm not sure this is the case.

[English]

    First of all, I should say that while that resolution a year ago was unanimous, I was perhaps too subtle in referring to the recent meeting of ministers. Not all provinces, including the Province of Quebec, are in favour of curtailing the access to conditional sentences now.

    I think it's more a reflection of the factors I mentioned in my first response to you: longer sentences, more conditions, and therefore more likelihood of breach. In a way, it means the sentences are working, because they're going to guys who otherwise would have been in jail. They've been given this opportunity, they're perhaps screwing it up, and, in the case of Manitoba, most of them are going back to jail. So it's not the kind of net-widening that you would expect if they were just probationers who were getting the sentence.

º  (1625)  

    The Chair: Thank you, Richard. We're moving back and forth.

    Mr. Lee, for seven minutes.

    Mr. Derek Lee (Scarborough—Rouge River, Lib.): Thank you.

    Just for the record, you introduced Mr. Daubney as not being a stranger to the committee. My recollection is that he is not only not a stranger, he was the chair of this committee at a time when parliamentarians undertook a major, earthquake-style assault on corrections and sentencing back in 1984 and 1988, his colleagues included. I won't mention any names, but anyway....

    That particular phase of work by this committee led to further work in the years that followed. Ultimately, it ended up producing the landmark sentencing act described earlier. So Mr. Daubney, of course, is more than just not a stranger, he knows as much as any of us at the table.

    I only have the briefest of curiosities or questions here, because I feel like I've seen the merry-go-round go by this sentencing thing more than once. If part of our problem is communication, if the sense of it is that, on balance, what was envisaged is working and the process is working, then just like one stupid immigration hearing decision becomes the lightning rod for all kinds of criticism of the immigration process, so does some kind of a default on a conditional sentence or a conditional sentence applied in a case that a lot of people don't understand. Do you think it might be possible to coax the judicial community to be more fulsome in the way they use the conditional sentence, in a way that would allow the media—which is not at fault here, but they may be as much a part of the solution as they are part of the problem—to better explain a particular sentence? If the media does a bad job, then the issue becomes political, and then it's our problem at this table and our problem in the House.

    Do you think there might be ways that we could explore that would induce the judicial community to better explain the use of a conditional sentence?

    Mr. David Daubney: They pretty much have to do that in their order, in the sentence itself, as opposed to trying to talk about a particular case outside the decision. In fact, there was a recent example of a judge in Halifax who did that. A sentence raised controversy in that community a few months ago, and he took the very unusual step of writing a letter to the Halifax Chronicle-Herald to explain his decision. I think he probably regrets having done so. It's pretty hard for a judge to do that, and I would think there would have been a bit of a chill that came over his colleagues in terms of following that example.

    I think the important thing is to bring out, in the reasons for judgment, all the aggravating and mitigating circumstances. In doing public speaking and media interviews, my experience certainly confirms the research, which we've known since the Canadian Sentencing Commission of 1987. If you give people enough of the key facts, they'll tend to come to the same conclusions that the court did. If not, they'll say that maybe the court was too tough.

    It's a question of trying to get into the reporting of that, I do think it's more an issue that journalists have to try to do a better job of that than judges, because judges are responding to Parliament's admonition in Bill C-41 that they give reasons for sentencing. They're generally doing a pretty good job of that, but somehow the story is not getting beyond the courtroom in very many cases.

    And I think we as officials and you as publically elected people have a role to play as well in not pandering to ill-informed public opinion, but in trying to help that debate occur.

º  (1630)  

    Mr. Derek Lee: In the case you mentioned, in Nova Scotia, can I assume you don't have any other details except what you generally know about and have seen? The question I'm leading to is whether or not the original decision that was evidently reported weakly or badly in the press was ill-designed for public consumption. Could the judge have done a better job when the sentencing reasons were produced?

    Mr. David Daubney: To tell you the truth, Mr. Lee, I haven't actually read the judgment, I've just read the newspaper account and the judge's letter to the editor of the paper. I know it was controversial, because in the succeeding few days, it led to me doing a series of interviews on CBC radio and TV there, and also in that newspaper. The positive aspect of it was—I heard this from people at our regional office in Halifax—that the people who wrote to the paper afterwards or who heard my comments on television generally felt a lot better about it when they knew the consequences. It rarely occurs to people that the consequence is judges using probation as a fall-back option, and that this doesn't provide the possibility of imprisonment for a breach unless there's a proven breach of probation or the kind of treatment that so many of these people need.

    That's a very important environmental factor to get out in the debate. Without that, I don't think people have thought through the consequences of doing away with the eligibility for conditional sentences for a number of offences, and that's almost certainly going to be one of them. If we do away with probation, we're talking about spending billions of dollars on prisons at the provincial level. I know that from having talked to my provincial colleagues in Manitoba. For example, I see my friend from the Canadian Police Association here. He was in my office last week, talking about concerns about pre-trial custody and the impact of codifying what the credit should be for pre-trial custody, with courts generally giving two-to-one custody now, and sometimes up to four to one. Dave and I were told that if we were to codify it at one to one, the cost in Manitoba alone would be something like $12 million in additional correctional costs and institutional costs. So the implications of those kinds of changes are huge.

    I don't think we can forget either that the implication of simply removing the conditional sentence for those offenders who would go to prison would be very significant as well.

    The Chair: Thank you very much, Mr. Lee.

    Mr. Sorenson, for three minutes.

    Mr. Kevin Sorenson (Crowfoot, Canadian Alliance): First of all, thank you for coming here today. I guess a “welcome back” is probably in store.

    It's interesting. Mr. Lee was able to recognize that you were here so many years ago in the position of chairman. With Mr. Lee's long tenure here, I'm amazed he doesn't go back to the sixties and tell us who the chairman was. With his experience, he has the ability to do that.

    Mr. Derek Lee: Warren Allmand.

    Mr. Kevin Sorenson: And his experience is appreciated.

    Mr. Derek Lee: It all started with Warren Allmand. You should know that.

    Mr. Kevin Sorenson: Anyway, in terms of what you talked about regarding the conditional sentencing, we're looking forward to the next three or four sessions at which we're going to be reviewing this. The public definitely has a lack of confidence in conditional sentences. Some of that lack of confidence may be misplaced, but for some of it, I think they do have a number of examples that they can draw on.

    According to one little piece of information that I have here from the Canadian Centre for Justice Statistics, the average number of criminals in the community on conditional release in Quebec and Saskatchewan is higher than those who are incarcerated. I think we recognize that this is so probably in most places throughout the country.

    This particular article stated that, on any particular day, 152,000 people are under sentence. Of that group, 21% of those who are under sentence are incarcerated or are in prisons. That means almost 80% are out on conditional release. That's 120,000 out on conditional release, whereas a very small number are incarcerated.

    Given the cuts to the resources of our law enforcement agencies, what supervisory mechanisms have been put in place since 1996, since Bill C-41 has come into place? Given the concern expressed in the media by Mr. Hancock, other solicitors general, and justice ministers, regarding conditional sentences and those who are out, what supervisory mechanisms have been put in place in the last two years? That's my first question.

    Mr. Marceau brought out the second question, but I would like to again ask if there has ever been a review. You pointed out the low statistics on review of conditional sentences breached. Has there ever been any type of review? If not, what options have the courts chosen? Right now, the courts are understanding that conditional releases are highly questionable and they're opting for others because there is no adequate supervisory mechanism in place. What options are they incorporating into their sentencing, then?

º  (1635)  

    The Chair: Thank you, Mr. Sorenson.

    Mr. David Daubney: The answer to your first question about supervision is really best addressed to the provinces and territories that do the supervision. But let me just say to the committee that the whole premise on which this regime was based was there would be a reallocation from institutional corrections to community corrections, as correctional institutional populations fell.

    We've seen that there are 55,000 fewer people in jails now, at an average cost of let's say $60,000 to $70,000, and those people are now being supervised in the community at an average cost of $7,000 to $10,000. Those savings in some provinces--I think Alberta is one, actually, and has done a good job here--have in fact been allocated, at least in part, from jails to communities. I know Alberta has closed at least one of its work camps. I think there may be only one in Kananaskis now. In New Brunswick, they closed a number of jails, and many of those offenders are being held in federal penitentiaries now, through an arrangement Mr. Scott knows about. That was the basis on which this was done.

    Has that allocation occurred universally throughout the country? No. Should it? Yes. Is every province providing adequate resources? Again, in my respectful submission, the answer is no. But let me give you what information we have at our disposal.

    Some provinces do use electronic monitoring for the more serious conditionally sentenced offenders. They do it partly as a punishment thing. It's part of making house arrest look as much like jail as they can. They also do it to ensure that the person is monitored. That happens in Saskatchewan and Newfoundland, and to a lesser extent in British Columbia and Ontario, where it's requested by the judge. There's a bit of a debate going on in Ontario now about whether judges or the correctional authorities should determine this. Corrections generally feel it's within their prerogative and area of expertise to determine whether or not an electronic bracelet is required.

    Certainly from what we've heard, Ontario is moving toward the use of electronic surveillance. That involves a bracelet, a GPS system, telephone checks, etc. That program is not universally available yet. It is used for inmates on temporary absences.

    Ontario has hired 165 new probation officers. They do both probation orders and conditional sentence supervision. This is an increase of 24%, which brings the total to 858. They are the primary means of supervision of offenders on conditional sentences, generally. Probation officers also do conditional sentences. From what I've heard anecdotally, they tend to use the best and most experienced officers to deal with the people on conditional sentences who need closer monitoring.

    The other thing I hear from judges is that they are less concerned than they were a couple of years ago about the level of supervision. Certainly they've been told by the courts of appeal that the fact that the judge has concerns about supervision is not a ground for refusing to grant a conditional sentence. There are a number of cases in the Ontario court of appeal on that point, and other jurisdictions as well. That would result in a sort of patchwork quilt of conditional sentences across Canada. So if a court decided not to give a conditional sentence for that reason, the appellate courts have said that would not be a fit sentence. If it would otherwise be a fit sentence, they would be entitled to that option.

º  (1640)  

    That's about all I can give you now. Hopefully you'll get some information if your clerk writes to the correctional heads across Canada to ask more precisely about where they are now on supervision.

    The Vice-Chair (Mr. Chuck Cadman (Surrey North, Canadian Alliance)): Thank you, Mr. Daubney.

    Mr. McKay.

    Mr. John McKay (Scarborough East, Lib.): Thank you, Chair.

    Mr. Marceau was asking some interesting questions in a direction I'd like to follow. Is it a meaningful question to ask what the recidivism rate of a conditional sentence regime is versus what the recidivism rate of a prison regime might be?

    Mr. David Daubney: Well, it's a good question. Unfortunately, we don't have very good answers on recidivism generally in this country for either prison or community sentences.

    First of all, there's the question of how you define recidivism, particularly over how long a period of time. I think the National Parole Board and the Correctional Service tend to define it over a fairly short period, a couple of years. Many would think you need to go further than that, and frankly, the further out you go, the higher the recidivism rate will be. The research in other jurisdictions shows that after 20 years some offenders will reoffend just out of the blue.

    Mr. John McKay: My recollection of the numbers is that it's somewhere between 3% and 8%--and I don't quite remember where I get that number from--as a recidivism rate for people who have completed prison sentences. Is that somewhere close to correct?

    Mr. David Daubney: That might be correct for the Correctional Service penitentiary population measured, again, over a fairly short period of time, but I'm just not certain about that, Mr. McKay.

    The research also tells us that if you look at a conditional sentence as an example of restorative justice--which it isn't generally, it isn't properly in my view, because there's more involved in restorative justice than just allowing an offender to serve it in the community.... The research on restorative justice--our department made an analysis of that--shows four things: one, offender satisfaction; two, victim satisfaction; three, dramatically improved recidivism rates; and four, huge restitution compliance. That is compensation to the victim, which in restorative justice is almost 100%; in our traditional system it's more like 20%.

    So there are a lot of benefits to dealing with people in the community, particularly if they're getting an opportunity to accept responsibility for the offence through some kind of victim-offender mediation or even just through treatment, anger management or alcohol and drug treatment, which is very often now part of a conditional sentence when those needs are there.

º  (1645)  

    Mr. John McKay: Thank you.

    The Chair: Thank you.

    Monsieur Marceau.

[Translation]

    Mr. Richard Marceau: Mr. Daubney, you said in your presentation that there was an increase in the use of conditional sentences. That means that judges' attitudes have changed over time. Did your department conduct a study of judges' attitudes on conditional sentences? If it did, what were the results? If you conducted such a study, can we have copies of the report?

    M. David Daubney: We conducted a study of this kind three or four years ago.

[English]

But because of the age of that study--which by the way is available, and I'd be glad to provide the clerk with a copy of that--I'm not sure how reliable it is. It was done in the early days, 1999 or maybe 2000, before the Proulx case, when there was still a fair bit of confusion about it and about public attitudes to it generally.

    Just from memory, as I recall, there were questions about how it was different from probation. I can't remember the details, but generally the results were supportive of the sentence for less serious offenders, as opposed to those who committed serious offences. That is how it's supposed to be, because one of the prerequisites is that the person not be a danger and that the conditional sentence not be inconsistent with the purposes of sentencing. It's probably time for us to refresh that survey and get some current views. What we hear anecdotally is that there's a pretty high comfort level with it.

[Translation]

    Mr. Richard Marceau: I would like to refer to one of your graphs entitled “Conditional Sentences: Selected Offences”. I'm surprised to see, for example, that in the case of sexual assault, 20% of offenders get a conditional sentence and 37% get probation, which gives a total of 57%. This means that 57% of the people convicted for sexual assault are released in the community.

    The people on the street are very surprised when they hear that 57% of sexual offenders go free in the community. Don't you think this figure is too high?

[English]

    Mr. David Daubney: Well, it's been the historic....You know, before conditional sentences were available, the probation figure would probably have been that much higher.

[Translation]

    Mr. Richard Marceau: —[Editor's Note: Inaudible]—

[English]

    Mr. David Daubney: I'm just guessing or am not sure—we'd have to check that—but it's because of the range of conduct covered by the offences. You have what we call level one sexual assault, which is a minor sexual offence—though you never like to call sexual offences minor. But compared to actual... There's no penetration. There may be sexual touching, as it's sometimes called... It's the lower level of sexual offences that would attract the community sentences. As you'll see, it even attracts fines: three percent will get a fine. I have even seen that manslaughter will sometimes attract a fine, in circumstances where there is a battered woman and all sorts of mitigating circumstances—and where they haven't made out the battered woman's defence.

    So, yes, I was a bit surprised by that. I'm sure the average Canadian would be. It's because of the ranges of conduct that are covered, I think.

º  (1650)  

    The Chair: Thank you very much, Monsieur Marceau and Mr. Daubney.

    Madame Allard.

[Translation]

    Ms. Carole-Marie Allard (Laval East, Lib.): Good afternoon, Mr. Daubney, and thank you for coming.

    When reading the summary of the R. v. Proulxcase—I guess it's the work of the Library of Parliament—I can see the following in paragraph 2:

... the sentencing judge considers whether to exclude the two possibilities of the penitentiary term or a probationary order as inappropriate, taking into consideration the fundamental purpose and principles of sentencing.

    There is no explanation of that fundamental purpose. I would like you to tell us about it.

    M. David Daubney: A copy of this part of the Criminal Code was handed out in both English and French.

    Ms. Carole-Marie Allard: Section 718 and so on?

    Mr. David Daubney: Yes, this is it.

[English]

    It's the notion of proportionality. A sentence has to be proportionate, not just to the offence, but also to the circumstances of the offence and the offender. Our whole approach to law in the British-Canadian system is not to look at things on the basis solely of an offence—which is why this would be such a departure from that tradition—but to look at the offender too. That's the fundamental principle that we have to respect.

[Translation]

    Ms. Carole-Marie Allard: Mr. Daubney, I want to follow up on what my colleague, Mr. Marceau, said about sexual assault. When the judge has in front of him a first offender, does he find it difficult, with precedents and case-law, not to show some leniency? Recidivism is often the result of the leniency of judges towards first offenders. Can you tell us if breaches of conditional sentences are more common in the case of first offenders?

    M. David Daubney: I guess you're right.

    I'm not sure of the figures but this is my impression.

[English]

    I think the fact that you don't have a record is certainly a factor the courts consider. But if it's a serious sexual offence, the fact that you don't have a record isn't going to help you out very much. The court is still likely to say that denunciation and deterrence are the primary considerations. The word denunciation--dissuasion, en français--imparts the idea of societal condemnation of the conduct. Sexual offending of a serious nature will be your dominant offence. The fact that it's the first time you've been found out and charged may reduce the sentence a wee bit, but not very much.

    The more likely mitigating factors would be matters like an offence that occurred a long time ago, where the offender is now in his seventies or eighties and is just not healthy enough to serve a prison sentence of any length.

    The Chair: Thank you very much, Madame Allard.

    Mr. Cadman is next for three minutes.

    Mr. Chuck Cadman: Thank you, Mr. Chair.

    Something was brought to my attention a few years ago by a few crowns. I believe it may have been addressed already, but I'm not sure. There were situations occurring where people were breaching conditions, but by the time the hearings were actually held on the breaches, their sentences were over. The crowns were complaining bitterly about that. Has that been addressed?

    Mr. David Daubney: Yes, that was addressed in Bill C-51. That's found in section 742.7, I think, of the Criminal Code. It's quite a lengthy section that deals with various things that happen, depending on the circumstances.

    I should tell the committee that from the point of view of the actual processing of these matters in court, crowns seem to be very satisfied with the regime.

º  (1655)  

    Mr. Chuck Cadman: Could you just elaborate a little bit on how that was addressed, how we acted?

    Mr. David Daubney: If you look at the material we handed out at the beginning, the conditional sentence of imprisonment sections of the code, section 742.6 and section 742.7, deal with what happens on an alleged breach. It's probably sufficient to say the clock stops running. If the offender is in jail, the period of time he's in custody awaiting a hearing will count toward the conditional sentence, for example.

    If he commits a new offence, section 742.7 also says the running of the conditional sentence is suspended during the period of imprisonment for that other offence. It will start again when he's released on the other offence.

    The Chair: Thank you very much.

    Mr. Macklin.

    Mr. Paul Harold Macklin (Northumberland, Lib.): Thank you, Mr. Chair.

    Thank you, Mr. Daubney. My apologies first for coming late and missing the earlier part of your presentation.

    My question is quite brief. I don't know what it will elicit from you, but if you had the ability to amend the conditional sentencing legislation to improve it, what would your suggestions be?

    Mr. David Daubney: That's a hard one to answer. I don't want to leave the impression that we have a perfect regime, because of course nothing is perfect, but I think that on the whole it is actually working quite well with the two changes we made, the first in 1997, I believe. Minister Rock added to the prerequisites the requirement of consistency with the principles of sentencing, which sent an important signal to the system that said it's not just “open sesame” here; there has to be integrity in terms of respecting those principles.

    These principles, by the way, were codified then for the first time. We've had a criminal code since 1892, but it wasn't until Parliament codified those principles in 1995 that parliamentarians had anything to say about what the purpose of sentencing was.

    The other important changes I referred to a minutes ago in response to Mr. Cadman corrected a lot of the technical concerns in terms of the clock continuing to run, complexity in breaches, proving a breach, and so on. The reverse onus we put in, where the offender basically has to come up with a reasonable excuse for a breach, has made the thing quite expeditious, and it has been upheld by the courts. The procedure we put in to allow either the offender or the crown to change the optional conditions depending on changes in circumstances has also made a positive difference.

    I'm not sure that anything in particular comes to mind as something that could further improve it, but I'm sure your committee will come up with something.

    Mr. Paul Harold Macklin: Thank you very much.

    The Chair: Thank you very much, Mr. Macklin.

    Mr. McKay.

    Mr. John McKay: I was looking at your conditional sentence chart here, and one thing that seems to be counterintuitive is that you're ten times more likely to get a conditional sentence for a sexual assault than you are for a common assault and you're almost twice as likely to get probation for common assault as you are for a sexual assault. I can't quite square those statistics in my mind. Can you...?

    Mr. David Daubney: Yes, it is almost counterintuitive, although if you look at the step-by-step directions of the Supreme Court provided to sentencing judges, you first decide whether this is something that would attract probation or a penitentiary term. If it's either, then you don't go on to consider a conditional sentence. It seems the courts are saying, well, this is something I've dealt with through a suspended sentence with conditions under a probation order, and I will continue to do so.

»  (1700)  

    Mr. John McKay: It is kind of curious that judges are virtually not considering conditional sentences in cases of common assault.

    Mr. David Daubney: Yes, I must say that I myself was surprised by that low number, 2%, and I can't help you much more than that.

    Mr. John McKay: Thank you.

    The Chair: Thank you very much.

    I might ask for the indulgence of the committee for a couple of questions.

    It occurs to me that very often in dealing with sentencing and criminal justice matters generally, a theme runs through these discussions, whether it was the CCRA review, the young offenders legislation, and now conditional sentencing. It has to do with the fact that confidence is referred to, which is followed by a debate or dispute about whether or not the lack of confidence is warranted. But if I could be so bold, I think most people would suggest that it is perhaps in the nature of the rather sensational cases—in which a mistake is made—that causes the public to be less confident than probably the reality would bear out. I don't want to speak for anybody else, but I think that seems to be a prevailing theme.

    How can the committee—or the Department of Justice, generally, which would probably have to do this—identify the kinds of information necessary to satisfy the rather anxious population?

    I'll give you a very specific example from today, when Monsieur Marceau asked about the incidence of breaching of a conditional sentence. We don't know exactly; and I think Mr. Daubney mentioned that we don't keep very good statistics on these things. But no reference was made to the division between a breach of a condition and a second offence—or another offence that would have the same result. I think if you asked the Canadian public, they would find it a little less objectionable if the cause of somebody being considered in breach was because they stayed out too late—or went to some location they weren't supposed to go to, or were seen in the company of somebody they weren't supposed to be with—than a more serious offence of, I guess, the Criminal Code.

    How can we get those who have the capacity to gather the information that would be a prerequisite to the educational process—which I think you mentioned earlier that everybody needs to undertake—to do so, when our inability to answer these fundamental questions very often makes it almost impossible for us to deal with the theme running through most of these issues?

    Mr. David Daubney: That's a very good question, Mr. Chair.

    A couple of things.... One, I should say frankly, is that it has been frustrating for us in the criminal law policy branch to have had to work in this environment of having, really, no hard data for almost six years. Because of this we actually hired a researcher who pestered the jurisdictions to get what information we could in the first several years, including evidence on breach. Matters dealing with breaches—because they're court files—are probably the most difficult to get, or quite difficult to get, compared to other correctional data. So anything you can say in your report with respect to getting better statistics in this area would be helpful.

    I just want to say something else about public attitudes. One of the documents that I left with you is the survey of public attitudes and conditional sentences, which our department did. It confirms what we already know, that Canadians generally view sentences as too lenient. They don't have a great deal of knowledge about conditional sentences, although it's improving over time.

    But there are some very interesting results when they do get information. The majority of the 1,000 respondents in the Ipsos-Reid poll done in February of this year preferred a conditional sentence to jail in the case of a bar assault, or even a domestic assault. Conditional sentences are seen as more effective than jail in meeting the goals of rehabilitation and reparation. That's not so surprising. What is more surprising is that Canadians view conditional sentences and jail as equivalent in terms of deterrence, denunciation, and punishment for selected cases. Citing a judge's reason for choosing a conditional sentence can make it more acceptable to the public.

    It all comes down to whether or not they are given knowledge of the actual conditions attached to the order. In fact the research had two different groups, those who didn't have that knowledge, and those who had it. Those who had that knowledge were the ones who felt “That's just as tough, and maybe even tougher”. If you're under house arrest in a small town, everyone knows you're under house arrest. You're under house arrest for a longer time than when you are in jail, where your average time served is 30 to 45 days, minus earned remission. It's also out of town. It's tougher for a guy not to go out with his buddies to drink on a Friday night.

    If the public were aware of a lot of this information, it would help the confidence-level issue, which is fundamentally important.

»  (1705)  

    The Chair: Thank you very much.

    I would inform the committee that we will begin considering the discussion document on same-sex union on Wednesday afternoon with officials from the Department of Justice. It's a big department; I expect it won't be Mr. Daubney again.

    Mr. David Daubney: No. Thank you.

    The Chair: I will speak about this again on Wednesday, but the plan is that on the following Monday, December 2, we will begin the process of outlining our plans for the magnitude and extent of that study, to be undertaken after Christmas. We can then make a request to the House for the travel budget necessary to undertake the study. Our clerk hasn't received sufficient instruction so far to make that application.

    On Tuesday, December 3, we will have officials from Justice Canada in the morning, and officials from the Office of the Solicitor General in the afternoon on the supplementary estimates.

    On Wednesday, December 4, we will return to the question of conditional sentencing. We will at least be hearing from the Canadian Association of Chiefs of Police, and Julian Roberts, who was referred to in Mr. Daubney's testimony by name as being able to provide specific information. So that will take us through the end of next week.

    I thank Mr. Daubney and members of the committee for your appearance—

    Mr. David Daubney: Thank you.

    The Chair: And you will appreciate that the chair was simply being generous to Mr. Lee by omitting your previous life, so that Mr. Lee in fact could bring it up.

    Some hon. members: Oh, oh!

    The Chair: In terms of gathering information... I think you referred to the fact that you actually went about hiring someone to be a pesterer. As someone who has shared our vocation in the past, we all know just exactly how well these people can perform.

    Mr. Marceau.

[Translation]

    Mr. Richard Marceau: Mr. Chair, I was given to understand that the minister would be here Wednesday for the discussion of the document on same-sex union. I thought that was one of the reasons why he would not be here for the supplementary estimates. You said that he couldn't come twice in such a short period.

    Why won't he come on Wednesday when we were told he would be here?

[English]

    The Chair: On Wednesday, November 27, the department is coming; the minister cannot. The minister wants to come at the end.

    The minister generally chooses one or the other. In this case he has chosen to come at the end. But they're introducing the issue on Wednesday, November 27.

[Translation]

    Mr. Richard Marceau: All right.

[English]

    The Chair: That would be two days from now.

    Mr. Richard Marceau: Fine.

    The Chair: Thank you very much.

    The meeting is adjourned.