JUST Committee Meeting

37th PARLIAMENT, 2nd SESSION

Standing Committee on Justice and Human Rights

EVIDENCE

CONTENTS

Monday, December 9, 2002

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1535

The Vice-Chair (Mr. John McKay (Scarborough East, Lib.))

Dr. Julian Roberts (Department of Criminology, University of Ottawa)

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1540

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1545

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1550

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies)

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1600

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews (Provencher, Canadian Alliance)

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Dr. Julian Roberts

Mr. Vic Toews

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

Mr. Vic Toews

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

Le vice-président (M. John McKay)

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

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Dr. Julian Roberts

Mr. Richard Marceau

Dr. Julian Roberts

Mr. Richard Marceau

Dr. Julian Roberts

Mr. Richard Marceau

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Dr. Julian Roberts

Mr. Richard Marceau

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin (Northumberland, Lib.)

Dr. Julian Roberts

Mr. Paul Harold Macklin

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Ms. Kim Pate

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

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Dr. Julian Roberts

Mr. Vic Toews

Ms. Kim Pate

The Vice-Chair (Mr. John McKay)

Mr. Richard Marceau

Dr. Julian Roberts

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1630

Mr. Richard Marceau

The Vice-Chair (Mr. John McKay)

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

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1635

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman (Surrey North, Canadian Alliance)

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

Mr. Chuck Cadman

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

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The Vice-Chair (Mr. John McKay)

Mr. John Maloney (Erie—Lincoln, Lib.)

Dr. Julian Roberts

Mr. John Maloney

Dr. Julian Roberts

Mr. John Maloney

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

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1645

The Vice-Chair (Mr. John McKay)

Mr. Paul Harold Macklin

Dr. Julian Roberts

Mr. Paul Harold Macklin

The Vice-Chair (Mr. John McKay)

Ms. Kim Pate

The Vice-Chair (Mr. John McKay)

Mr. Vic Toews

Dr. Julian Roberts

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Ms. Kim Pate

Mr. Vic Toews

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

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

Dr. Julian Roberts

The Vice-Chair (Mr. John McKay)

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CANADA

Standing Committee on Justice and Human Rights

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NUMBER 009

l

2nd SESSION

l

37th PARLIAMENT

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EVIDENCE

Monday, December 9, 2002

[Recorded by Electronic Apparatus]

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[English]

    The Vice-Chair (Mr. John McKay (Scarborough East, Lib.)): I call the meeting to order.

    We have three scheduled witnesses; however, the Canadian Police Association is not available for today. And we've put in a call to Kim Pate. We don't quite know where she is. Hopefully she's on her way.

    Dr. Roberts is here. He tells me he has been here quite a number of times, so he is familiar with the procedure. First is the presentation, followed by a question and answer period.

    Dr. Roberts.

    Dr. Julian Roberts (Department of Criminology, University of Ottawa): Thank you for the invitation to appear.

    I'd like to just take a minute to qualify myself, as it were, and explain to you who I am. I don't represent an organization. I'm an academic with the University of Ottawa. I've been working in the area of sentencing since 1983. I was with the Canadian Sentencing Commission as principal researcher during its 1984-87 mandate. I then moved to the Department of Justice, where I worked with the sentencing review team, before coming to the University of Ottawa.

    Sentencing has been my major concern over the last 20 years. Since 1996 my primary area of research has been conditional sentencing. I'm writing a book about it with Canadian University Press. I've been following the debate quite closely, and I have published a bunch of articles, which are available. They're available only in English, so that means they can't get to you. But they are out there, if anybody wants to dig them out. So that's sort of where I come from.

    I'd like to address very briefly a number of issues that have arisen with regard to this new sanction. Then I'm going to leave you with two principal messages.

    Let me begin with the issues. One of the most-asked questions about conditional sentencing is, has it worked? That raises the issue of, what do you mean by “worked”? One definition is whether it has reduced the number of admissions to custody. That turns out to be a complicated question to answer, but I think I've answered it, in conjunction with a colleague from the University of Ottawa, in a paper that is going to appear in the Canadian Criminal Law Review. It seems quite clear that conditional sentencing has reduced the number of admissions to custody since 1996. We estimate that 55,000 offenders have been sentenced to a conditional sentence of imprisonment who prior to 1996 would have gone to prison. So in terms of reducing the use of custody, it certainly has had an effect.

    Some people have been concerned about the so-called net-widening effect, and apprehension has been expressed that judges have used the conditional sentencing where in the past they would have sentenced somebody to a term of probation. There has been a little bit of that happening, but not very much. We estimate that over the five-year period, 5,000 offenders who were sentenced to a conditional sentence of imprisonment would have in the past received a fine or probation. So there has been some small amount of widening of the net and a considerable decrease with regard to the use of incarceration. To put that into an international context, it's quite a striking reduction in the use of incarceration. I've looked at the issue around the world, and I don't think there's a jurisdiction that has effected such a reduction in admissions to custody in such a short space of time. That's the first issue.

    The second issue I'd like to address is what we know about the functioning of the conditional sentence. There I'm going to urge you to hear from the people who actually supervise these offenders. I know you've heard from people from Quebec. If you resume this issue in January, I strongly urge you to hear from the probation services in Ontario, because they're the only ones who really know what's going on.

    I can look, as I have looked, at the conditions imposed upon conditional sentence offenders and the degree to which those conditions are respected and breached. I'll speak to those briefly.

    The early conditional sentences, I think it must be said, were not that different from probation orders. The statutory framework of the two dispositions was quite similar. Many of the early conditional sentences were, as I say, quite similar to probation orders. I believe that has changed quite considerably, in part as a result of the decision Regina v. Proulx by the Supreme Court in January 2000. That's an interesting judgment, which anybody who follows the issue should read. In it the Supreme Court laid down certain suggestions with regard to the use of the conditional sentence order. One of the things they said was that the conditional sentence order should be tougher than it had been to that point. I think the conditional sentence has become tougher. Curfews have become more common. They're quite frequent, as it turns out. House arrest is far more frequent than it was before. The number of conditions imposed upon offenders have increased. So that's something about the conditions.

    With regard to the breach of these orders, the statistics are a little bit unreliable, or at least we don't have good national data. But from the data we do have, and there are some numbers in this Criminal Reports article that came out this month, you will see that about a quarter of these conditional sentence orders are breached and result in a breach hearing.

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    Of course, some breaches will go undetected and some breaches will be detected but not reported, and so on, and in some cases the Crown won't proceed with a breach hearing because the breach occurs quite late in the sentence. If you have a nine-month conditional sentence and a breach occurs at the six-month period, my gut feeling, although I don't have data on this, is that the Crown will not proceed with the breach hearing, because it's too close to the end. It's not worth the bother when crowns have a lot of other things to take care of. So this an issue that needs to be looked at further.

    The response to the judicial reaction to breach is an interesting issue. The Supreme Court had something to say upon it as well. The Supreme Court said that in the event of an unjustified breach of conditions, the judicial response should be incarceration for the balance of the order. As you probably know, the Criminal Code provisions relating to the conditional sentence order give judges a fair amount of discretion. They can do nothing, they can change the conditions, add conditions, and so on. They can incarcerate for a period, or they can incarcerate for the remainder.

    The Supreme Court directed them towards the most severe response, and to some degree there's been shifting in that direction. But as you'll see in the data on the judicial response to breach, a significant proportion of breaches still result in something other than the recommendation recommended by the Supreme Court in Regina v. Proulx.

    There are a number of things we don't know about, and there are a number of areas we need to look at.

    I'm trying to keep to my 10 minutes, so I'm skipping along quickly. I hope there will be questions on these issues.

    We don't know much about victims' responses to these orders. I'm not suggesting that if victims disapprove of the conditional sentence order that makes it a bad disposition. But if the imposition of the conditional sentence is aggravating the plight of victims, I think something needs to be done about it to help those victims to understand exactly what the sentence is, how it works, and so on.

    We don't know much about offender perceptions. What do they think about when they're on one of these orders? It's supposed to be a term of imprisonment served in the community. Do they regard it in those ways?

    I've flagged for your future attention two last two issues, the supervision of offenders and the use of conditional sentencing for aboriginal offenders. I'm still working on the question of whether aboriginals are less likely to go to prison now than they were prior to 1996. But the preliminary data suggests that the conditional sentence hasn't had much effect on aboriginal admissions to custody. I'm not quite sure why.

    There are two messages that I'd like to leave you with. The first message is simply that this is a complex issue, which invokes a number of competing interests, and it really behooves parliamentarians, I believe, to take a closer look at the issue. There's a lot more going on here, and that probably requires some kind of formal study. We simply don't have enough information on this sanction at the moment.

    The Department of Justice does not have the resources to conduct extensive study into how the sentence is functioning. Statistics Canada is hobbled by the fact that the provinces are responsible for providing the data. The provinces say they can't provide the data in many cases, they don't have the resources.

    There's a lot of buck-passing in the area, and I think Parliament can take a lead in saying, we created this sentence in 1996 and we want to know how it's functioning.

    So I strongly urge you to consider a more in-depth and thorough study. It's a pity there isn't a sentencing commission in this country, because that's the kind of thing the commission could do. It could get the facts, it could consult all stakeholders, and it could come to you and say, here are the problems, here are some options, over to you to decide. Unfortunately, we don't have that. It's just a little flea in your ear to consider.

    The second message I'd like to leave you with is, if the committee is at any point considering statutory reform, because there have been critics of this sanction--people have suggested that this sentence should be repealed, that the provision should be amended, and so on--I would say two things. First of all, don't amend this provision until you have the facts. I'm not suggesting the provision doesn't need amending. I think it may well benefit from some amendment. But even I, who have studied it for six years, would be loath to say, do X, Y or Z, without further study and consultation.

    I will also mention one issue, and that is the Supreme Court in one of the factums in that Proulx decision was urged to consider a schedule of offences for which a conditional sentence would not be presumptively available.That's an idea that has been knocking around for a few years, and some groups and some individuals are advocating it. My reaction to that is that it's not a great idea. I'm going to tell you why.

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    Mr. Daubney, in his testimony, attempted to steer you away from it. I agree with him on this and I'd like to explicate why I think it's a bad idea.

    The Supreme Court didn't take up that idea. It suggested it was not a great idea, although, of course, it did leave open to Parliament the option to consider some form of schedule. That's point one.

    Two, given the tradition in this country, I think for Parliament to take a particular disposition away from judges with respect to certain offences would be inconsistent with the role of Parliament. Perhaps you're going to say we did that with the penalty for murder, but that's kind of an exceptional case. You took away from judges the right to impose a non-custodial sentence for murder. Obviously, that's a decision I would agree with, but for these other offences, I think you have to leave the judges some discretion.

    We have an excellent judiciary in this country and they've done a lot to make this sanction work. I'd be loath, if I were a parliamentarian, to step in there and tell them what to do. If you're considering some kind of restriction of the ambit of the conditional sentence order, the suggestion I would make--and made in an article in 1997--would be to lower the ceiling for which the sentence is available. Parliament created this sanction in 1996 and created a ceiling of two years less one day. What that means is a vast range of criminal offences would be eligible for a conditional sentence, assuming the other statutory criteria are met.

    That's something that Parliament created. You guys, you people, set the ceiling at two years less a day, and I think that gives some license to lower the ceiling if you think it appropriate. Opponents of that proposal will say that if you lower the ceiling to 12 months, you're going to lose the power of the sanction to reduce the use of custody. But I'd urge you to take a look at the statistics in my article and you'll see that about 20% of conditional sentences are over 12 months. So if the ceiling was at 12 months--I'm not advocating 12, I'm just giving you an illustration--you would only lose 20% of the conditional sentence orders. But what you would lose, of course, are the most serious cases that result in a term of custody of 18 months to 24 months that can be made conditional.

    As my last point on this notion of playing with the ceiling, one of the things that Proulx said was that you don't have to have a one-to-one correspondence between the term of custody and the conditional sentence that vacates that term of custody. The Supreme Court effectively let judges consider, say, a 12-month conditional sentence instead of a 6-month term of custody. It always made a lot of sense to me.

    However, with respect to the sentences of 18 months to two year less one day, you can't increase the severity of the conditional sentence by making it longer, because you're at the ceiling already. So a 22-month or 20-month conditional sentence of imprisonment cannot be made longer in order to preserve, perhaps, the principle of parity or to make it tougher than the term of custody that it replaces. So there's another problem associated with those sentences at the high end of the range.

    I've gone about two minutes over. I'll stop there and thank you for your indulgence.

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    The Vice-Chair (Mr. John McKay): Thank you, Dr. Roberts.

    We welcome Kim Pate from the Canadian Association Of Elizabeth Fry Societies. You have ten minutes with a question and answer period after that.

    Ms. Kim Pate (Executive Director, Canadian Association of Elizabeth Fry Societies): Thank you very much.

    First of all, I want to apologize for my being late here. I was trying to consult with my president, and she sends her regrets. Dr. Ailsa Watkinson would have liked to join us, but she was unable to because of her academic duties in Saskatchewan. I want to say that we're very pleased to be invited here by the committee.

    When we started looking at conditional sentences, like many of the other groups and individuals who have testified before you, it was of course prior to the passage of the legislation. Initially we were opposed to the implementation of conditional sentences. Our reason for being opposed to it was based on the principle that if probation operated in the manner that it was initially intended, if we had the sort of intensive support and supervision that was initially intended by probation, then in fact there would not be a need for conditional sentences. The reality belies those principles, however.

    Our concern was this. At the same time as conditional sentences were brought in, we also saw the elimination of the Canada assistance plan and the erosion of the necessary community resources needed in order to adequately supervise and support those who were serving conditional sentences.

    One reality is that we're now in a position of supporting the use of conditional sentences but we do have some concerns and some cautions.

    We also initially asked that conditional sentences not be applied in cases of misogynist violence. I think the Supreme Court of Canada has ruled on that recently. Our concerns continue in terms of the application in some of those cases, particularly where the issue really is fundamentally discrimination against women and therefore violations of section 15 in terms of the manner in which the sentences are applied. And I'll come back to section 15 in a minute.

    I've just come from...and in fact, my colleagues are venturing to Sudbury again. We're interveners in an inquest into the death of a 40-year-old pregnant woman who was serving a conditional sentence. Ms. Kim Rogers, as some of you will know, had a pre-existing mental health disability. Because she was convicted of welfare fraud, she was also cut off from welfare for a period of time. A court challenge allowed that to be reinstated. However, that ban continues.

    And I commend to you the work of the Law Commission in this regard, on what's happening in terms of the increased use of administrative penalties to really up the arsenal of punitive penalties available through the criminal law. In this case, in Ontario, for instance, and I understand British Columbia is also looking at similar provisions, when someone is convicted of welfare fraud they are automatically banned from ever receiving social assistance again. At the time of Ms. Rogers' death it was a three-month ban. It's now a lifetime ban.

    Even if someone gets a conditional sentence for a conviction, they're essentially set up to breach that sentence, because they're set up to serve a sentence without an income unless they have some kind of independent income, or unless they are employed and they are permitted to go out for the purposes of employment.

    However, when we look at women--and this is why I come back to section 15--they're less likely than men to be employed. They're less likely to be employed with adequate wages. We have sufficient research that has been done on those sorts of issues for some time. We see, in fact, that the impact of a conditional sentence can be disproportionately more harsh for those women.

    When we talk about those who are convicted of what might otherwise be seen as relatively minor in the scheme of Criminal Code offences, for offences of welfare fraud, of course, we end up seeing, in fact, quite a punitive sentence emerging when you combine the administrative penalty and the conviction.

    One of the things that we would like to see is more work done on research. I have spoken with Dr. Roberts. Because of our involvement in the Rogers inquest, we're in the midst of a separate data poll from the Canadian Centre for Justice Statistics, looking at the particular impact of conditional sentences on women.

    We're seeing that, yes, there's an overall decrease. I believe the figure that Dr. Roberts and his colleagues found is approximately 12%. What we're seeing is an overall decrease of approximately 7%, though, when we talk about women, and an increased percentage of women being sentenced to conditional sentences. So we're seeing an increased number of women receiving jail sentences, albeit jail sentences served in their own homes, but with ever decreasing resources, ever more punitive jail sentences, nevertheless.

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    One of the concerns we have is that there needs to be an examination of the disproportionate impact of these sentences on women and those with disabilities and those who are subject to other administrative penalties.

    As Dr. Roberts has already discussed, the Proulx decision not only talked about the need to have a punitive element to the sentence but also about the need to have a restorative element to the sentence.

    I would suggest to you than unless you do look at the section 15 analysis of the impact of these sentences on those who are most vulnerable, particularly those who are most impacted by the cuts to social programs and health programs in this country, then really what we're seeing is potentially the continuation, or at least the exacerbation, of what may already be a discriminatory sentencing scheme.

    Instead of the default position being to fines, we may in fact be seeing a considerable widening of the net in terms of jail sentences, again, albeit in their own homes, but nonetheless a widening of the net in terms of conditional sentences for women.

    I think there is sufficient commentary from the courts throughout the country and last week by the Ontario Auditor General himself about the inadequacy of support and supervision in the community. We know that, although conditional sentences are jail sentences served in people's own homes, they are supervised by the same people who supervise probation sentences.

    As we've seen cuts to those services across the country, we've seen caseloads increase and the ability to provide supervision...but more importantly, in terms of rehabilitative or restorative approaches, the ability to...and, I would suggest, in terms of deterrence and also prevention of further offending. Supervision is very much limited by growing caseloads.

    In fact, the Auditor General in Ontario himself has pointed out that in Ontario probation officers have such high caseloads that there are inadequate resources for them to actually try to assist those people who are on those caseloads to not be reoffending.

    Although the Canada assistance plan was cut in 1996, and therefore some of the national standards that were in place prior to that and prior to the inception of conditional sentences were removed, we do have, through the 1999 Social Union Framework Agreement, an agreement in principle that provinces and the federal government would ensure adequate, affordable, stable, and sustainable funding for social programs.

    Our concern, and it has been certainly heightened by our involvement in the Kim Rogers inquest and the research we've been doing as a result of that involvement, is that in fact because of the intersecting nature of other systems--social services and health systems in particular--we may very well be seeing potentially a rather discriminatory sentencing scheme far more punitive than probably most people who have been appearing before you would be suggesting, certainly for those who are most vulnerable and who are supposed to be protected by the law of this land and our human rights legislation--the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms.

    We would submit as one of our recommendations that the committee look at the need to ensure, as part of the sentencing guidelines accompanying the general sentencing guidelines, the adequacy of individuals to actually be able to serve their sentences successfully without breaching because of no fault of their own. For instance, if someone is sentenced to house arrest for welfare fraud and is cut off from all manner of income, then necessarily they will likely breach and end up in jail, although they likely would have had no intention of doing so.

    Our recommendation is that we look at those provisions and that there be an assessment particularly of the needs related to poverty, disabilities, threats of violence, and those sorts of things, and that the sentence administrators ensure there is an adequacy of those services before providing a conditional sentence of house arrest.

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    The reason I focus so much on house arrest is that, as Dr. Roberts has already indicated to you, one of the realities is that ever since the Proulx decision and the recommendation from the Supreme Court of Canada, most conditional sentences have included a curfew provision, which is essentially a house arrest condition. This is even though, as you know, it is in fact listed as one of the optional conditions, not one of the mandatory conditions. Yet it is essentially operating almost like a mandatory condition, and the need for that kind of curfew must be rebutted.

    Those are our recommendations, and I encourage you to look at the need to examine this entire sentencing scheme through the lens of section 15 and human rights provisions.

    Thank you.

    The Vice-Chair (Mr. John McKay): Thank you very much.

    Mr. Toews, for seven minutes.

    Mr. Vic Toews (Provencher, Canadian Alliance): Thank you very much, and I want to thank both the witnesses for their very informative and, I think, challenging testimony.

    I was particularly attracted by the suggestion--because I don't think I've ever heard it explained that way--in respect of lowering the ceiling for availability. That's something we need to think and speak about, and it's certainly an option we need to consider very seriously.

    The other issue raised by the other witness, Ms. Pate, dealt with the issue of criminal penalties essentially becoming irrelevant or disconnected because of provincial administrative penalties. I hope I'm summarizing that correctly, that the effectiveness of the conditional sentences is being undermined by these provincial administrative penalties.

    It's an issue I'm very much aware of, having operated in the provincial legislature earlier, and I guess the provincial administrative penalties are a response to a growing perception that the courts aren't properly carrying out their responsibility in respect of sentencing principles, especially in respect of denunciation and deterrents, those aspects of sentencing.

    I speak particularly to the area of impaired driving and suspended driving, where provinces essentially had to start seizing licences and seizing motor vehicles because the courts simply weren't carrying out their social responsibility to protect Canadians against that dangerous kind of conduct. We saw administrative penalties being imposed regardless of the criminal area.

    But I note the issue you're raising, that if we undermine the conditional sentencing through provincial administrative penalties, we can never hope to see the conditional sentences work. That's certainly something we need to work on together with the provinces to ensure that their concerns are being met.

    My question is perhaps a little more mundane than all that, though you've given me other good things to think about. The question that really concerns me concerns the administration of the conditional sentences. I constantly hear complaints from court officials, from prosecutors, and from police, and the first point is, why do we have separate suspended sentences and conditional sentences? Couldn't we look at this as just a continuum? At one end of the continuum we have very few conditions, and at the other end of the continuum we essentially have the house arrest or conditional sentence kind of sentencing.

    At least we would have one framework with which to work, one enforcement process, so people in the administration wouldn't be confused. I'm just wondering, is there any way from either an administrative or even a philosophical approach that there would be any objection to integrating the administrative aspect?

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    Dr. Julian Roberts: You need both sanctions. I know that some people get confused, but if it seems confusing, just take a look at the code. There are separate statutory frameworks. It's true, there are elements that overlap--offenders in the community, supervision, conditions, and so forth--but one sanction is purely rehabilitative and has a totally different goal from the other.

    The conditional sentence order is a different sentencing option, and you don't want to confuse the issue by trying to lump everything into one sanction. It's supposed to be a term of imprisonment in the community; it serves a different purpose, and the court made that quite clear. It serves this restorative/retributive purpose in the sense that these offenders are punished, they're held accountable, yet the goal of restoration is promoted.

    Mr. Vic Toews: So you think that the offender who has been given a suspended sentence with a period of probation and who has a curfew is aware of a difference between that and where he has been sentenced to a conditional sentence with a curfew. Do you think the offender really--

    Dr. Julian Roberts: Curfews are very rare with probation. If the conditional sentence is properly administered, properly supervised, and if breaches are responded to properly, then offenders will get a very different message from this sanction than from a term of probation.

    I agree with you, there is some conceptional overlap, and there has been a great deal of popular confusion as to the goals and the nature of the two sanctions. But they are two different sanctions, the same way a screwdriver is not the same as a spanner. They are both tools, but they have different purposes.

    The Vice-Chair (Mr. John McKay): A screwdriver could be a drink, too.

    Ms. Pate.

    Ms. Kim Pate: I don't disagree with anything Dr. Roberts has said, but I apologize if I wasn't clear in what I was presenting.

    The issue is not, I don't think, that the provincial administrators have decided the penalties are insufficient. Rather, it varies across the country because provincial governments inadequately fund social services and health services, leading to a position where.... The ban on social assistance, for instance, is a model that was borrowed by the Ontario government from the United States. We've seen similar devastation in terms of the most vulnerable populations in the United States as a result of those policies. We understand that British Columbia is also looking at this, and I think it would lead to similar devastating results.

    The reality is, it's the cost-cutting measures that are done in the provinces and the ban on receipt of welfare after a welfare fraud conviction is presumed to be...to try to prevent further loss to the province, at least as I understand it and as the government has presented it. In fact, it acts as an additional administrative penalty, but it's not suggested by those involved--at least as far as anything I've read goes, or according to what they've testified to at the inquest, for instance--that in fact it was intended to be an additional punishment.

    I apologize that I wasn't clear on that when I presented.

    Mr. Vic Toews: No, I think we understood each other.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

    We have a few seconds left. Do you want to add something else?

    Ms. Kim Pate: I was just going to say that I would agree with Dr. Roberts again that the experience of conditional sentencing is quite different from the experience of probation. In fact, people being confined within the four corners of their apartments and not having access to anything except sometimes for three hours a week, as in Kim Rogers' case, is a very restrictive condition. In fact, they are clearly quite different from probation orders the way they are administered. The issue of inadequacy of services and supports is an issue that falls to both the provincial and federal governments to rectify.

[Translation]

    Le vice-président (M. John McKay): Mr. Marceau, for seven minutes.

    Mr. Richard Marceau (Charlesbourg—Jacques-Cartier, BQ): Thank you very much, Mr. Chair.

    I thank you for coming here, Ms. Pate. Your presentations were very instructive.

    First, Mr. Roberts, I was very pleased to hear that there was not sufficient information to make the decision. I was just telling Chuck that it was difficult to answer the question. As a matter of fact, how do we know whether it works or not when we have not got supporting figures?

    Here is my first question, Mr. Chair. As you probably know, on September 10, 2001, which is last year, the provinces adopted a unanimous position asking for the federal government to establish at the very least a presumption that "conditional sentences [...] were not appropriate for acts or attempted acts of criminal violence" such as those causing death or where the victims are children.

    Are you telling us this afternoon that you are against the position of the provincial ministers of Justice?

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[English]

    Dr. Julian Roberts: The translation was interesting; it talked about “suspended” sentences, but I assume you're talking about conditional sentences.

    I'm against that position because I think you're going to have to define which offences. Some people have said, let's exclude conditional sentences for all serious crimes. What's a serious crime? If Parliament wanted to identify a small number of specific offences in the Criminal Code, I'd be more in favour of the proposal. The proposal I was speaking to would be a broad schedule that might define categories, but if there's a very small number of very specific offences....

    I will just bring to your attention the sort of traditional notion of sentencing in this country, which has been that Parliament sets the general parameters, and it's up to the courts to interpret and apply them. There's always been this reluctance on Parliament's part to interfere too much. I think the judiciary might resent that interference with their discretion.

[Translation]

    Mr. Richard Marceau: But we are talking here about presumption. Would it be possible that once convicted the onus is reversed and that the person, in the case of a violent crime, has to prove or to demonstrate why he or she would be liable to have a conditional sentence? So, we would not say automatically, in the case of a violent crime, that the person is not eligible a priori unless he or she proves that she should.

[English]

    Dr. Julian Roberts: You could have some kind of reverse onus like that, and maybe put the burden upon the offender, but then it would get a little bit messy. What are the bases that need to be established for the offender to have the benefit of the conditional sentence? I think that's better than having a clear schedule that says this is not available for those offenders. But I still think it's something that should probably remain within the hands of the judiciary.

[Translation]

    Mr. Richard Marceau: In your presentation, you talked about the judicial response to an unjustified breach of conditions. When is a breach of conditions justified, in your view?

[English]

    Dr. Julian Roberts: I'm glad you raised that, because Kim was talking about justified and unjustified breaches. It's important to bear in mind that you don't go to prison as soon as you breach a conditional sentence order. There is a hearing, and if there is a justification the order will continue, or will continue in a modified form.

    But imagine you have a condition that says you've got to be home at 7 o'clock, and you walk in at 7:15. That's a breach of the order. Why were you late? Well, I was late because my car broke down, and there's the wheel that came off. That's a justified breach, and I understand, from talking to probation officers in the province of Ontario, these things obviously happen. People get stuck in traffic, things come up, somebody gets sick, and so on. There are many reasons. That's why Parliament created a statutory framework that gives judges some discretion.

    My personal view is that if you breach without justification, you should go to prison for the duration. I have a firm view on that. But there are occasions when a breach is justified by circumstances beyond the offender's control.

[Translation]

    Mr. Richard Marceau: In the event of a breach of a conditional sentence, it seems that there is no difference between a breach of conditions such as getting home at 8 rather than at 7, and a new offence committed by the convicted person.

    Are there statistics on this? What is the percentage of people committing new offences while serving a conditional sentence in their community?

º  (1615)  

[English]

    Dr. Julian Roberts: We don't have those statistics. We have some statistics, from some provinces, for some periods of time, for some offenders, with respect to breach of conditions. They're conditions such as curfews and the various conditions that are imposed. We don't have so-called recidivism rates--the breach of conditional sentences resulting from fresh offending, or allegations of fresh offending--and that's an important thing to look at.

[Translation]

    Mr. Richard Marceau: You also said at the outset, when talking about statistics, that in a quarter of the conditional sentences, there is a breach of conditions. These are only the cases which are reported. Well, all the witnesses we have heard previously have said, without exception, that there were not enough human and financial resources to do the supervision work properly.

    In your opinion, because you are an expert in this area—I am not asking you to read in a crystal ball but just to give us your view—, if a breach of conditions is reported in a quarter of the sentences and there is not enough people and money to do the supervision, what is the real percentage of conditional sentences where conditions are breached?

[English]

    Dr. Julian Roberts: I can't give you an estimate, nobody can. But I can tell you that probation officers--again, I'm restricting my remarks to the province of Ontario--tell me that many of these conditions are very hard to supervise, or to ensure they're being respected.

    If it's a curfew, you're supposed to be home after 7 p.m. If the probation officer phones at 8 p.m. and can't get through, or there's an answering machine, is the offender home or not home? When they get through, the offender says “Well, I was taking a shower. I was not answering the phone but I wasn't out of my house.”

    Those kinds of things make it very hard to know whether the offender is adhering to the condition, and that's why many probation officers want a more careful look at the conditions that are being imposed by judges.

    My general answer, then, would be that we can't be specific, but the brief statistics we have must underestimate to some unknown degree the total number of violations.

    The Vice-Chair (Mr. John McKay): Merci. Mr. Macklin.

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

    Thank you both for appearing today and challenging us with some of your thoughts and ideas. The most challenging, of course, is the question you raised, Dr. Roberts, about not making any changes until you have the facts. From your background it appears that obtaining the facts is a difficult challenge, and I believe we may have discussed this before at other appearances.

    Data seems to be an issue within the justice system, something that is either lacking or certainly not shared freely. Do you have any suggestions as to how we might go about getting the appropriate data, or recommendations that we ought to make that would lead to us having that data available?

    Dr. Julian Roberts: I think you have to wield a big stick and wave it around. The fact of the matter is, only certain provinces have these data, and it's not a matter of these data being concealed or not made available. The data are in a pretty moribund state.

    In general, sentencing statistics are not as good as other statistics--for example, police reporting statistics, some court statistics, young offender statistics, and so on.

    Somebody needs to say this sanction was created; let's find out everything we can about it. The Department of Justice has generated some studies, conducted some research. Stats Can had a release this year of some data, which answer some questions but they're partial answers at best. I think somebody has to take the leadership, because everyone says they don't have the resources or it's not their job. It's a frustrating business for a sentencing scholar, I can tell you.

    Mr. Paul Harold Macklin: To you, Ms. Pate, where you're suggesting that what conditional sentencing might lead to is a death sentence, do you see some means or method whereby judges ought to be directed in a way that is...? I would have thought initially an appropriate way of sentencing is to get all of the facts before you, to ask counsel to bring forward all of the facts. To me, part of those facts would have been what the penalties would be from the province, and that would have been before the judge, before making a decision.

    What do you believe we ought to be considering in these circumstances, or is this what you'd call an isolated incident that you're referring to in the inquest that you're going to?

º  (1620)  

    Ms. Kim Pate: The question you're asking is a really important one, because in fact I don't think the circumstances are isolated. A number of people aren't dying, and obviously that's not what we want to see. We talk about Kim Rogers' case as really being the proverbial canary in the mine in terms of recognizing what the impact is if we don't do a careful analysis.

    I think your point is a very good one. It's come up many times at the inquest that Kim Rogers was represented by counsel. Now we know that because a conditional sentence is not viewed by all legal aid systems as a jail sentence in the community, even though that's what it is, so it's not seen as the same deprivation of liberty, there are some really clear issues about whether most people would have access to adequate legal representation, if any, particularly if they come from those vulnerable groups.

    That's why we are suggesting that a section 15 analysis and section 15-based research really look at what's happening with conditional sentences, which means that the conditional sentences will be looked at to determine if, because they come post-Canada assistance plan, because they come post many of the cuts to social and health care services across the country, in fact they are amounting to a discriminatory sentencing scheme against those who are most vulnerable.

    In addition, in terms of the concern that I think many of you would have, and certainly what's being expressed in the public around some of the more serious offences, and hence our concern, and many other women's groups' concerns, early on about misogynist violence, if you took a section 15 analysis, you would look from the perspective of not only those who are being sentenced but also those who are being victimized, and ask if there is a disproportionate allocation of resources going that increases the risk to vulnerable groups.

    Our review of the Supreme Court of Canada decisions since the Proulx decision would indicate that it's fairly stringent. So my guess is that, on the victims' side, you wouldn't see the same impact as you would see if you looked at a section 15 analysis based on those who are being sentenced. In fact we have, effectively, a scheme that could be far more progressive, could be reducing far more the numbers of those who are most vulnerable in the system.

    But the research isn't clear, and our suggestion--I would echo what Dr. Roberts has said and what you have said--is that you do need more information, because it's possible that we're seeing more people who are most vulnerable getting conditional sentences and not disproportionately being decreased in terms of the numbers going to prison.

    For instance, anecdotally we're hearing from provinces like Saskatchewan that aboriginal people are being breached at a fairly high rate. As we know, there isn't sufficient data to determine whether in fact that is true or is just an anecdotal impression. So I would suggest that we need to be able to look at that information, do an analysis, and then determine from there whether there are changes required or whether the real issue is implementation and lack of resources to provide support and supervision, as is being suggested.

    The Vice-Chair (Mr. John McKay): You have about a minute left.

    Mr. Paul Harold Macklin: I'll pick up after, thanks.

    The Vice-Chair (Mr. John McKay): Mr. Toews, three minutes.

    Mr. Vic Toews: Thank you.

    I note your comment regarding the perception that suspended sentences and conditional sentences are basically seen as the same thing within the system. And it's certainly the perception I get from speaking to people. That's why I lead to the comment, if the perception is there, why don't we just integrate it there?

    I have your comments, but I want to deal with the reality of it. I think some of the comments you're making are very helpful.

    The other issue you've mentioned, of course, and I think it's a good point, is what is the role of the courts and minimum sentences, for example? Should we be imposing those, excluding conditional sentences? We do that in the case of impaired driving, for example, where we feel there's a social policy need for establishing minimum sentences. They're all very good questions and all raise and echo the need for further study in this area.

    With respect to the policy of the provinces regarding breaches, would you have access, Ms. Pate or Dr. Roberts, to what policy each province would consider appropriate? I know that back in Manitoba it was essentially three strikes and you finally go to court. Is that consistent across the country?

º  (1625)  

    Dr. Julian Roberts: That's a very good question. I don't know the answer to it. My guess is that it's not quite that indulgent in the province of Ontario. It's certainly true that probation officers have discretion to exercise and they should do so in the appropriate manner. I don't have any information--for example, policy directives or anything of that nature--but it certainly would be nice if the policy were consistent and, in my humble estimation, fairly rigorous.

    Mr. Vic Toews: I'm not suggesting that it was always three strikes and you're out. But for the minor ones, like the 15-minute curfew violations, that kind of thing, they sort of had a rough kind of policy that way.

    Ms. Pate.

    Ms. Kim Pate: I would echo what Dr. Roberts has said, although add that at the inquest we heard evidence, certainly from the Province of Ontario, that the stringency of the conditions is perceived as very real, and one of the real challenges is that the threat is held over the heads of many people.

    If you have someone who is generally compliant, what we may be seeing is that they're not even stretching what is available through conditional sentences. So the flexibility that is available to persons to go out for medical appointments and that sort of thing is not exercised because of fear of breaches. Again, I think the issue of the most vulnerable groups being particularly negatively impacted is an issue there. It's certainly an issue that has been raised.

    We heard evidence, for instance, that even though the conditional sentence that Ms. Rogers was under indicated that she could go out at any time for medical reasons, she was instructed by her probation officer that when she went into labour--she was eight months pregnant when she died--she would need to contact her probation officer and ask for a letter to be done in order for her to then leave her home to go to the hospital. If that's the kind of instructions that are being given by probation officers or conditional sentence supervisors, as in this situation, then I think the reality is that we may see breaches for things that we wouldn't expect to see breaches for. We may see threats of breaches.

    So I think there are many, many issues in all of that, to underscore what Dr. Roberts has said in terms of the need for more examination. I would agree that a request from this committee for that information from the provinces and from the Department of Justice would be quite useful.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Toews.

    Mr. Marceau.

[Translation]

    Mr. Richard Marceau: Mr. Roberts, when you talk about taking a close look at the issue before suggesting some amendments to the present code, what sort of study do you have in mind?

[English]

    Dr. Julian Roberts: I have about ten suggestions, but I'll spare you the long list. For one thing, supposing you liked the idea of lowering the ceiling to 15 months or 12 months, I think a reasonable question to ask would be, how many offences are going to be screened out, and are the offences that you want to screen out the offences that you're concerned about? The offences you mentioned before, these serious personal injury offences involving child victims and so forth, if they wouldn't be screened out by that mechanism, it wouldn't be a good suggestion.

    Take impact analyses; supposing you had a particular reform in mind, it would be nice to know what impact that reform would have. I simply think we also need to know more about the way the sanction is being administered. We need to know about the probation officer's experience. They never seem to be consulted. Nobody ever really seems to talk to them, or at least not in the literature that I read. And I think they have a lot of the answers, as do victims.

    Some victims groups are quite stringently opposed to conditional sentencing for personal injury offences. Kim has been talking about misogynist violence and so on, but I think it might be nice to know in a more systematic way...you know, victims are a broad group. Some victims may have problems with conditional sentencing and other victims of personal injury offences may not.

    So I'd simply like to know more about what's going on. I've been studying it for six years, and I still don't feel I have a strong grasp, or strong enough, at least.

º  (1630)  

[Translation]

    Mr. Richard Marceau: Thank you.

[English]

    The Vice-Chair (Mr. John McKay): Thank you.

    Are there any questions from the government side?

    If I may, with the indulgences of the committee, a couple of questions came to mind as I was listening to the testimony that I'd like to ask.

    On the face of it, admissions are reduced by 55,000, and that sounds like a lot of success in some respects. But on the other hand, you have a breach rate or a breach hearing rate of about 25%. Of that 25%, how many would actually result in incarceration?

    Dr. Julian Roberts: Again, the data depend upon which province you're talking about. In Ontario, I think the incarceration rate is about 50%. It's in this article.

    The Vice-Chair (Mr. John McKay): Is that 50% of the 25%?

    Dr. Julian Roberts: Exactly.

    The Vice-Chair (Mr. John McKay): At 12.5% the breaches are of sufficient magnitude that they end up in jail.

    Dr. Julian Roberts: Right, or the breach is unjustifiable, and the judge decides it's appropriate to incarcerate the offender.

    But there are certainly a lot of cases in which a breach has been found without justification, and the judge perhaps changes the order, in which case the offender will not be incarcerated.

    The Vice-Chair (Mr. John McKay): Is there any pattern, either in personality or in the kind of conviction, coming out of the 12.5% “failure rate”, for want of a better term?

    Dr. Julian Roberts: That's a level of detail I can't have access to at the moment. I think a couple of provinces like Manitoba and Saskatchewan could answer these questions. I think they would have the data for that, but I don't have it.

    The Vice-Chair (Mr. John McKay): Ms. Pate, you've been making the argument that the interaction of provincial legislation with conditional sentences yields discriminatory results under section 15. Have you thought about whether that's also true under, how should I say it, conditional-sentence-like structures, such as probation and suspended sentence? Have you thought about how this analysis would be applied to those two forms as well?

    Ms. Kim Pate: Thank you for asking.

    Yes, we have. In fact, one of the recommendations we are making to the jury and the inquest, and one of the ones we would make to you—I'll be following that up in a written submission as well—is that we look at an amendment to the provisions available through the principles of sentencing, in particular, at paragraph 718.2(e). In that paragraph there's already a recognition that “all available sanctions other than imprisonment...should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.

    We are suggesting that there be a further amendment to include the other groups also protected by virtue of section 15 of the Charter of Rights and Freedoms. So if there are in fact vulnerable groups, there needs to be an examination of the particular way in which sentences may negatively impact those individuals in a way precluding them from the rehabilitative or restorative component. But also, if you cut out the possibility of their being able to get out of...or to integrate into the community after their sentence, then you effectively set them up to continue to be involved in a criminal activity, or on the street, or in debt. So these three options are basically what become available.

    The more we eviscerate social programs, or eviscerate the supports available...I think the other thing—obviously not so much for this committee, but for others—I would suggest through the Social Union Framework Agreement that all members might have the possibility of influencing the federal government to again re-examine the fact that national standards are not in place. Canada has been sanctioned internationally by the United Nations for not actually ensuring there are adequate national standards.

    That's a long answer to accompany a “yes”. I certainly think there are also some potential provisions that could be looked at specific to section 742.1, where the conditions under which a conditional sentence may be imposed are examined. We would suggest there be an additional provision there, that once a decision has been made that a sentence of incarceration is appropriate, followed by the decision that sentence could be served in the community, there is a responsibility to ensure there is a capacity for that person to actually serve the sentence. So in terms of the issue raised earlier, there won't be breaches that are almost unavoidable if someone is left with virtually no way to support themselves but are seen as an appropriate candidate.

    We certainly know that women, in particular, fall into this category. We already know that they tend to be more compliant generally with the law. They're less likely to be charged; they represent about 11% to 18% of all charges. They're most likely to get community sentences. They're more likely to complete them without breaching. If they are sentenced to a term of imprisonment, whether it's a conditional sentence or not, I would suggest—although I would issue the caveat that we don't know the data—that they're less likely to reoffend once they're released, and they're less likely to return to custody. So given they're a big part of this vulnerable group, I think it would be quite justifiable looking particularly at the section 15 analysis, and the possible amendment of sections 718.2 and 742.1.

º  (1635)  

    The Vice-Chair (Mr. John McKay): Thank you.

    Chuck.

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

    I have just two quick questions, Dr. Roberts. Going back to your original comments, you said when a breach occurs near the end of the sentence itself, the Crown may not proceed because the sentence may have run out. My understanding is that the clock stops when a breach is charged. Does the clock actually stop to account for that?

    Second, I was at a conference over the weekend, and I certainly ran into a number of victims and probation officers who had some serious problems with conditional sentencing. We are probably going to hear from them later on.

    Could both of you give me an indication of any offences for which conditional sentencing should not be available? Murder is an obvious one.

    Dr. Julian Roberts: Just to get back to the business of the breach and stopping, as a result of the amendments of 1999, I believe, it's true that the clock stops and the order is suspended. But if you're six months into the breach and you're a very busy, overloaded provincial crown, you have to arrange for the breach hearing, and the judge may not send the individual to prison. The judge may send the individual to prison for about a month, but from what I've heard just informally, in talking to crowns, they won't bother with that. So those late breaches are always going to be a problem, but that's a problem with any kind of sentence that ends in the community. If something happens very late, the crown may say, “Well, he behaved himself for six of the nine months. It could be worse.”

    On the second issue of offences that are excluded, this gets back to the question before. It's a tricky one because, as you say, you don't want to necessarily be the parliamentary bull in the judicial china shop, telling judges to do this and that. There are some anomalies. One that has been mentioned already is that a second conviction for impaired driving gets you 14 days in jail. Impaired driving causing bodily harm or death is an offence for which a conditional sentence is possible, assuming the statutory criteria are met. So there may be a need to resolve anomalies like that.

    But I assume the offences you want to eliminate are the most serious. Then the question becomes, what's the most serious? You pick up a code and say, “That's a pretty serious offence. Let's get rid of that one.” A better and more systematic way of doing it might be to use the term of custody imposed as the measure of offence seriousness. If an offender is sentenced to two years less a day, in Canada that is a very serious sentence, relative to all the sentences that are imposed. It must have been imposed for particularly serious conduct, probably by a repeat offender.

    I would still be in favour of that kind of mechanism rather than sitting around a room and saying, “We'll get rid of the following six offences, and leave all the rest.”

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Cadman.

    Mr. Maloney.

    Mr. Chuck Cadman: I think Ms. Pate wanted to comment.

    The Vice-Chair (Mr. John McKay): I'm sorry, go ahead, Ms. Pate.

    Ms. Kim Pate: We would not support a reduction of the conditional sentence. The one area where Dr. Roberts has suggested potentially lowering the period from 24 months to 12 months is not one we'd support. It could benefit those who were the least risks to the community more if we had that kind of analysis to see whether the way it was being applied was already discriminatory on its face. That might result in more people receiving conditional sentences who aren't risks, who could benefit from being accountable in the community and held under house arrest, or that sort of thing, under a conditional sentence in the community.

    I would think, though, instead of precluding certain offences, something like a presumption against a conditional sentence--so the reverse onus type of option that's already been discussed--for certain offences, particularly misogynist violence, could potentially be put in place. I keep saying misogynist violence, as opposed to a certain offence, because misogyny presumes it's based on already discriminatory attitudes against women. So I think it sets it up to look at those areas where some of the greatest damage is done, in terms of discriminatory attitudes against women and in favour of the accused charged with those particular offences.

    So it doesn't preclude it being applied, because there may be cases where it may be quite justifiable to look at managing someone who has committed a very serious offence in the community. It allows you to look at the circumstances, but also have a rebuttable presumption, if you will.

º  (1640)  

    The Vice-Chair (Mr. John McKay): Mr. Maloney.

    Mr. John Maloney (Erie—Lincoln, Lib.): One of the difficulties in studying conditional sentencing is the lack of adequate or sufficient data. How would you propose to fill that gap? How would you propose that we obtain that data? Should there be an individual designated somewhere in the court system to tabulate this? Should there be a sentencing commission? How do we correct the problem?

    Dr. Julian Roberts: We can correct the problem in any one of a number of ways. The best, I think, would be a sentencing commission. One was proposed a few years ago and never actually materialized. That's one option.

    Perhaps a less costly option would be to direct Statistics Canada to collect these data and to try to get the cooperation of the provinces to supply Statistics Canada with the appropriate data so that these policy-relevant questions could be answered. But it will require additional effort on the part of the provincial correctional administrators, court officials, and so on, to record the conditions that are imposed, the conditions that are breached, the judicial response to breach, and the judicial reasoning underlying a response to breach.

    It's a complex and messy issue, and I think the first step would be for Parliament to take some leadership in saying, we don't have these answers, and the system has proved incapable of generating them to this point, so what can be done?

    Mr. John Maloney: How would a sentencing commission work?

    Dr. Julian Roberts: Well, you'd have a non-partisan group of individuals, presumably including a significant number of judges. It could be a small commission--two, three, or four commissioners. They would be charged with the mandate. They would have the responsibility of collecting information. You could request information from them, or they could do an independent study on a particular issue, as I mentioned before, and then come to the committee and say, here are the problems, and here is the range of solutions that we see.

    The sentencing commission wouldn't have the power to determine those solutions. That would reside with Parliament, as it always has and always will. But it would be some kind of a body of that nature.

    Every state in the U.S., as far as I'm aware, that has a sentencing guideline scheme has a sentencing commission. In England and Wales, they have a sentencing commission with a slightly different name, but the idea is the same.

    The Department of Justice simply doesn't have the resources, and Stats Can doesn't seem to have the resources or the expertise to do the proper job, so a new sanction came in during 1996. I think it's regrettable and reprehensible that we still don't have answers to some of these questions.

    Mr. John Maloney: Thank you.

    The Vice-Chair (Mr. John McKay): Thank you, Mr. Maloney.

    Ms. Pate wants to comment.

    Ms. Kim Pate: The only thing I want to add is that I think perhaps linking some of the financial arrangements to the provision of this data might be one way to examine so that the cost-sharing arrangements include the expectation that information will flow back.

    Unlike Dr. Roberts, I'm not so certain that the provinces are incapable, but more, they may be unwilling to provide some of the data, particularly provinces like Ontario where we're seeing such devastating impact, the cuts to other services impacting what's happening in terms of who's entering the criminal justice system, people who previously wouldn't have been criminalized who are being criminalized now.

    Certainly through the inquest we've found that we have not been able to get this data from the Province of Ontario. Even though it was initially in material that was being disclosed to all the interveners, participants, and parties at the inquest, it was then withdrawn by coroner's counsel and by the AG's department.

    Certainly that would suggest to us that it's available, although in what form is unclear. I take Dr. Roberts' point, but certainly it seems to be more a case of unwillingness rather than incapacity.

º  (1645)  

    The Vice-Chair (Mr. John McKay): Mr. Macklin.

    Mr. Paul Harold Macklin: I want to come back to another issue, but it may run into the same roadblock--that is, the question of deterrence. I'd like to know if you have any data, I suppose even anecdotes if they may be helpful to the committee, about the specific deterrence of this type of sentencing versus other types of sentencing for the same type of offence.

    Dr. Julian Roberts: We don't have the answer to that. We don't have the answer to these basic questions. And that's quite a sophisticated and important question.

    I guess the criticism of a conditional sentence order--not a criticism on which I've seen any data--could be that it lacks deterrence. But if that's the case, then we need to establish whether it's the case. We simply don't have that information. It would be nice to know.

    Mr. Paul Harold Macklin: Thank you.

    The Vice-Chair (Mr. John McKay): Ms. Pate.

    Ms. Kim Pate: Based on 20 years of working with young men and women and the research that has been done on youth--there hasn't been the same research done on adults that I'm aware of--I would say that in fact deterrence is much more principle than practical reality. Most people don't commit offences thinking they're going to get caught, so the consideration of the sentence rarely applies. We've even seen in terms of impaired driving, for instance, that it isn't the sentence. In certain categories of individuals we haven't seen a reduction in the number of impaired driving charges. It has been the public education around drunk driving that has had the greater impact. We could get into the fact that most are undereducated. My other training is as a teacher. The ability to understand the impact of your actions is very much linked to cognitive ability.

    So I think there are huge issues around whether in fact deterrence in a practical sense serves to prevent people from committing offences in the first place regardless of how severe the sanction. If that were true, there would be far less crime in the United States, for instance.

    The Vice-Chair (Mr. John McKay): Mr. Toews.

    Mr. Vic Toews: I think some fairly serious accusations have been made here against the Ontario probation system, and I think we should have some probation officers from Ontario here to explain some of their practices. I thank Ms. Pate for bringing those matters to our attention.

    The other point is the sentencing commission and sentencing guidelines. I agree that your sentence shouldn't depend upon the luck of the draw. I remember as a prosecutor trying to get people to plead guilty on a certain day, and you don't have any luck because you know who your judge is. Of course, they're all waiting for the next judge to come. Then you can clean up your backlog in very short order. That's not a very good way to run a judicial system.

    Looking at sentencing guidelines, however you impose them, whether it's in a way that is perhaps a little less complicated than in some of the American states, because I find it very difficult to understand many of those sentencing guideline structures.... I'm wondering if that would assist in reducing the discriminatory impact Ms. Pate has mentioned.

    Do either or both of you want to comment?

    Dr. Julian Roberts: Sentencing guidelines is a big issue. I'll let Kim speak to the issue of the discriminatory remedial effect. Guidelines were recommended by the Canadian Sentencing Commission in 1987. The Department of Justice embraced that idea and then changed its mind in the late 1980s.

    I think some more formal sentencing guidelines would be a good idea, but frankly I wonder if the judicial culture is ready for it. The American grid-type guidelines would not go down very well. But you could have more directed guidance than sections 718 and 718.2, effectively the statutory statement of purpose and principle. That's supposed to guide judges and promote uniformity. When Minister Rock introduced that bill, he talked about it making sentencing more responsive to the needs of all Canadians and bringing sentencing into the 21st century, whatever all that means. If it meant promoting uniformity, we should have seen a reduction in disparity since 1996. But that's another issue that hasn't been explored.

º  (1650)  

    Ms. Kim Pate: This committee has already examined one piece of legislation that has done some of what I'm proposing. The Youth Criminal Justice Act, because of the recognition of the over-incarceration of vulnerable young people, particularly racialized young people, has set out some provisions. In the submissions we'll send you we have some suggestions about the sorts of sentencing principles that could be looked at particularly for conditional sentences, which have to do with the whole examination of what other options may be available and what the capacity of the community is to manage the sentence and support the individual in continuing on in a law-abiding lifestyle.

    Mr. Vic Toews: So you don't find it, Dr. Roberts, inconsistent with your position about bringing in minimum sentences. There is no inconsistency there in terms of Parliament interfering in judicial discretion. You don't see--

    Dr. Julian Roberts: Well, no, I don't think it's inconsistent at all. If you have a minimum penalty, that is an intrusion into the exercise of judicial discretion. I'm not a big fan of minimum penalties. I'm not a big fan of Parliament excluding an offence because it feels it's not appropriate for a particular sentence.

    You could have a guideline scheme that would be a package of information with a recommendation to the judge. The judge doesn't have to accept it. The judge says, I've heard the recommendation from the sentencing information system, and it's for custody for 18 months, but in this case I'm sending the offender to prison for three years, and here's why.

    As long as you have sufficient flexibility for the judge to opt out of the guideline scheme, it has flexibility, which is consistent with the exercise of judicial discretion.

    The Vice-Chair (Mr. John McKay): Thank you.

    Mr. Lee.

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

    I just want to piggy-back on Mr. Macklin's discussion on deterrence. I don't know whether he was talking about general deterrence or individual deterrence or both. On the issue of individual deterrence, again, it has to be an issue of data collection and analysis. Is there anything out there that would allow us to look at the impact of conditional sentencing on recidivism rates for individuals who had conditional sentences, as opposed to recidivism rates for individuals who had not?

    I think we've had some evidence on that, but I thought Mr. Macklin's question was going in that direction, too--specific recidivism for the individual involved rather than general deterrence.

    Dr. Julian Roberts: Specific deterrence is easy, it's a measure, and the measure you've articulated is the measure that's appropriate.

    As to reoffending, it would be nice to have two groups of offenders--one group who received a term of custody, the other group who received a term of custody in the community--and see what the recidivism rate is like for the two groups. The problem is, you then have to equate the two groups, and of course people who get conditional sentences tend to be different from people who get terms of custody for the obvious reason that they can't be a risk and so on and so forth.

    Certainly the provinces could tell you of all the offenders who were sentenced to a conditional sentence of imprisonment between 1996 and 1999, for example. The provinces could tell you how many were readmitted. That's a pretty stringent measure, but that's one measure of recidivism.

    So those data could be collected, but I don't have them, and if somebody else has them, I haven't heard about it.

    The Vice-Chair (Mr. John McKay): I think that's it. Thank you, colleagues.

    On behalf of the committee, Dr. Roberts, Ms. Pate, thank you very much for appearing. It's very helpful.

    We will continue on Wednesday, when we hear from the Canadian Resource Centre for Victims of Crime, the Barreau du Québec, and the Canadian Criminal Justice Association.

    This meeting is suspended.