Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 26 - Evidence, April 26, 2007
OTTAWA, Thursday, April 26, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, to amend the Criminal Code (conditional sentence of imprisonment), met this day at 10:48 a.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
The Deputy Chairman: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs has met to continue its study of Bill C-9, to amend the Criminal Code (conditional sentence of imprisonment).
This bill seeks to amend section 742.1 of the Criminal Code, to provide that a person convicted of a serious personal injury offence as defined in section 752 of the Criminal Code, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more, is not eligible for a conditional sentence.
To discuss this bill in more detail today, we have three officials from the Canadian Centre for Justice Statistics, a division within Statistics Canada. I would like to welcome the Director, Ms. Lynn Barr-Telford; the Project Director for the Courts Program, Mr. Craig Grimes; and Senior Analyst, Ms. Sara Johnson.
Lynn Barr-Telford, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity to speak to the committee today about conditional sentencing in Canada.
In the interest of time, I will briefly present some data that will help set the context for our discussion of conditional sentencing. Then we will look at conditional sentencing from the vantage points of the courts and from corrections.
Our analysis was restricted to provincial-territorial corrections, given that conditional sentencing applies only to sentences of less than two years and that these sentences fall within the jurisdiction of the provincial-territorial system.
At various times throughout the presentation, I will draw your attention to any data limitations. You will find notes within your slides as well.
I invite you to turn to the second slide in your presentation package. In this slide, we see trends in police-reported crime rates since 1977. The key trend to note is that the overall police-reported crime rate, which is shown in red on the graphic, increased throughout the 1970s and 1980s. It peaked in the early 1990s and then declined throughout the 1990s. Since about 1999, it has been more stable.
This trend is pretty much mirrored by the property crime rate, which you see in green in your graphic; the violent crime rate is shown in yellow. It increased steadily for 30 years, also peaking in the early 1990s. It has been generally declining since the mid-1990s, although it has been relatively stable.
Slide 3 shows trends in the sentenced correctional population. There are some jurisdictions excluded from coverage, which are noted on your slide. The key points that you will see in this graphic are that the conditional sentenced population has doubled since 1997-98, our first full year of data coverage. At the same time, the provincial-territorial sentenced custody population was down 31 per cent. These trends have shifted the relative distribution of the sentenced population. Slide 4 gives you a clearer view and you can see those upward and downward trends a bit more clearly. Slide 5 provides another bit of context.
The decline in the provincial-territorial sentenced custody population has coincided with an increase in the population in non-sentenced custody — that is the remand population. This has resulted in a negligible change in the overall provincial-territorial custody population. It is an increasing trend with a coinciding decreasing change, which results in a negligible change in that custodial population.
I will not speak in detail to the next slide, but I will leave it for you because it provides some context to Canada's incarceration rates relative to others; it puts it in an international context. This is information that I will leave with you for your consideration.
Let us turn to our sentencing data from our Courts Program. With these data, we can look specifically at conditional sentencing by offence type. Let us start with a few baseline statistics. We can talk about cases and we can talk about persons. For the next several slides, we will talk about cases and the most serious offence within the case.
In 2003-04, which is our most recent year for our courts data, there were 13,267 cases which, upon conviction, resulted in a conditional sentence. These cases represented about 6 per cent of all convicted cases for the jurisdictions for which we have data.
When we speak about persons, we have just under 10,000 whose last conviction in 2003-04 was a conditional sentence. For all of our slides, we have about 70 per cent of the national adult criminal court caseload in terms of coverage.
This particular slide tells us that conditional sentences are not imposed with the same frequency for all offences. Offences in the chart represent those that are most often subject to a conditional sentence on conviction.
Approximately one third of drug trafficking offences and other sexual offences received a conditional sentence on conviction; and about one in five sexual assault convictions received a conditional sentence. In addition to those two sexual offences, there are four other crimes-against-the-person offences that you see on this particular chart.
Some of these offences are of lower volume, as you can see from the counts within the brackets. While they may more often result in, and be more often subject to a conditional sentence upon conviction, they do not necessarily make up the highest number of offences within conditional sentencing.
If you turn to slide 8, you will see that the 10 offence groups represent the vast majority — 80 per cent — of the 13,267 cases where a conditional sentence was imposed upon conviction in 2003-04. Almost one in five of the conditional sentences were imposed for a drug trafficking conviction under the Controlled Drug and Substances Act.
We have talked about conditional sentences by offence types. If we turn to slide 9, we can shift our attention to what the data can tell us about factors a court may consider when arriving at a sentence. Our data allows us to look at three possible mitigating factors that may be associated with an imposition of a conditional sentence. We can look at the type of criminal procedure, the prior conviction history of the accused and the final plea entered by the accused.
It is not a definitive measure of the gravity of the offence, but one possible way we can proxy the seriousness of an offence is to look at the type of criminal procedure that was followed. Was it summary or was it by indictment? From this particular chart, we see that slightly less than half — 47 per cent — of all convicted cases with a conditional sentence were for an indictable offence. Conversely, slightly more than one half were summary convictions.
With the exception of drug trafficking, break and enter, and fraud, the vast majority of many cases sentenced to a conditional sentence were not indictable.
In slide 10, from our courts data, we can also look at the prior conviction history of the accused. This is another possible factor that we are able to examine with our data in terms of mitigating factors. For this slide and the next, our population is the person or the accused who received a conditional sentence during his or her last appearance in criminal court in the same year, 2003-04. This was just under 10,000 people. Approximately half, 49 per cent, of all conditional sentences were imposed on offenders with no prior conviction history.
As you can see from the graphic, the percentage with no prior conviction history varied by offence type, ranging from 28 per cent for common assault to 80 per cent with the other sexual offences.
On slide 11, we can also look at the type of final plea as another mitigating factor that is listed for consideration when imposing a sentence. Again, our population is the accused, but we are focusing only on those offenders who were convicted of an indictable sentence and sentenced to a conditional sentence in 2003-04.
For this subpopulation, which is about 4,500, 60 per cent had no prior conviction history and almost 90 per cent entered a guilty plea. The data in the chart seemed to be suggesting that both prior conviction history and the type of plea may be factors considered at sentencing.
The vast majority — 95 per cent — of those with a conditional sentence for an indictable offence had either no prior conviction history or a plea of guilty as a possible mitigating factor. There may be other mitigating factors at play, but we are not allowed to address those factors with our data.
On slide 12, we can also look at the length of supervision time for the 13,267 conditional sentence cases. When ordering prison term or a conditional sentence, the court may impose a term of probation to be completed following the completion of the more serious sanction, so the accused would be under sentence supervision for a maximum of the combined total of those sanctions. We know from this information that cases sentenced to a conditional sentence in 2003-04 were, on average, in sentenced supervision for approximately twice as long as cases sentenced to prison. The total average ordered supervision for cases sentenced to a conditional sentence was 453 days, which compares to 223 days for cases sentenced to prison. We also see that combined sentencing greatly increases the average time the accused will spend under supervision. The average ordered supervision for an offender sentenced to a conditional sentence and probation was 700 days, which is 36 per cent longer than an offender sentenced to prison and probation. That tells us about conditional sentencing by offence type, mitigating factors, and about length of sentence.
One of the questions is what is the potential impact of the recent changes to the Bill C-9 legislation? We cannot predict the impact of those recent changes, so we cannot definitively estimate the number of cases that would no longer be eligible for a conditional sentence under the serious personal injury definition. We can look at the number of cases that received a conditional sentence for an indictable crime against the person offence and that currently carry a sentence of at least 10 years.
In 2003-04, over 3,600 cases were sentenced to a conditional sentence upon conviction for crimes against a person. Of these, almost one-third, just under 1,100 cases, were sentenced to a conditional sentence for an offence that was violent in nature, indictable or proceeded by way of indictment and eligible to receive a sentence of 10 years or more. To put that into context in terms of the overall picture, this represents approximately one in 10, 8 per cent, of the conditional sentences that were imposed.
The last four slides make use of data from our integrated correctional services survey; this is correctional information. As of 2004-05, the survey had been implemented in five provinces. The specific jurisdictions mentioned in the slide are those that we can speak to and we cannot generalize beyond them. We can look at optional conditions assigned to sentence types, and we can look at breach rates and re-involvement in the correctional system.
When we look at the optional conditions most frequently attached to probation only community involvements and those with at least one conditional sentence, we see differences in those optional conditions. Almost one-half of conditional sentences had reside-house arrest and about one-half had curfews. These were not on the list for probation.
The Deputy Chairman: Excuse me a moment, please. With my aging eyesight, I am having difficulty reading what the columns are in the slide itself, particularly on slide 14.
Ms. Barr-Telford: For the probation only graph, the first bar is counselling, the second is abstain from drugs or alcohol, the third is restricted contact or no contact, the fourth is an area restriction, and the fifth is community service. For the conditional sentence graph, the first bar indicates abstaining from drugs or alcohol, counselling is the second, curfew the third, residing in a specific place-house arrest is the fourth, and the final bar is area restriction.
On slide 15, we can look at the rate at which persons who complete a period of probation or a conditional sentence have breached a specific optional condition imposed on their sentence. The results here apply only to Alberta. The overall breach rate for probation was just under 34 per cent, and it was 25 per cent for a conditional sentence.
In both probation and conditional sentences, the optional conditions most frequently breached were restitution-compensation order and community service. However, the breach rates are significantly lower for conditional sentences than for probation. In addition, the most stringent conditions of curfew, which are shown in blue and reside in a specific place-house arrest, which is shown in red on the graphic, were breached less often among the conditional sentence population than those serving a probation.
The next slide draws on data for the two mentioned jurisdictions. It refers to cases where there was a completed conditional sentence involvement in 2003-04 to 2004-05. For these 4,500 cases with the completed conditional sentence involvement, we saw that 36 per cent were admitted to custody at some time while they were serving their sentence as a result of a breach of condition. The breach was severe enough to reach that threshold that resulted in an admission to custody. We can see as well from the graphic that the reported admitting to custody on a breach varied by offence type, drug offences being the lowest and robbery being the highest, although you can see from the counts that there are some small counts in some cases.
Our final slide today looks at the proportion of those who left correctional supervision in 2003-05 and then subsequently returned to corrections within a 24-month period. It refers to the four jurisdictions mentioned on the slide. Here we are looking at re-involvement after a sentence has been served. As we can see, for these jurisdictions, the proportion of probationers who returned to corrections within 24 months was a little lower than for those serving a conditional sentence, but the proportions are quite similar. Those lines are shown in the dark blue and yellow. The proportion that returned to corrections after finishing a sentence custody was much higher, around 40 per cent. We could not take into account the prior conviction history here when we conducted the analysis.
What does this mean? What does this tell us? Does it tell us about the effectiveness of conditional sentencing and probation programs? It may. Does it tell us about risk assessment in the awarding of sentences? It may. It is very difficult to disentangle that impact.
That concludes my presentation. We have looked at conditional sentence by offence type, the mitigating factors and the length. We have looked at what we can do in terms of analysis around Bill C-9, and we have looked at our corrections data for breach and for re-involvement in the correctional system.
The Deputy Chairman: Thank you. It will take me some time to absorb what all these graphs actually tell us, but it was an extremely interesting presentation.
Senator Nolin: I would like to explore with you the issue of repeat offenders. I believe that the goal of these various sentences is to improve the quality of safety for Canadians, and so it is on this part of your study that I would like to focus my questions.
I understand that the last slides of your presentation deal with this issue of repeat offenders. If I understood correctly, the last slide deal with the deterrent effect in a comparison of these various types of sentences.
Are you able today to tell us that, professionally, given your expertise, the sentences that we are trying to limit today with this bill constitute the right approach?
Ms. Barr-Telford: That is a very difficult question for me to speak to in terms of the nature of the approach. What we can speak to, in terms of our data, is re-involvement in the correctional services. After a period of time, in this case 24 months, what proportion of those who had served a particular type of sentence were re-involved within the correctional services? We have seen that for probation and conditional sentences the proportion is much lower in terms of a re-involvement rate than it is for those who have served a prison term. However, there are multiple factors that may be happening within this. It may be a reflection of risk assessment. It may be a reflection of the nature of the available programming. Those effects are extremely difficult to disentangle beyond what we have been able do.
Senator Nolin: If you allow me, I would like to add the following variation. You know the nature of serious offences that are considered in Bill C-9. Within the whole set of statistical data that you are providing us, it is important to distinguish the deterrent effect on this type of offences versus the totality of offences. Is there a variation? Are the tendencies the same? That is what I am interested in.
Sara Johnson, Senior Analyst, Canadian Centre for Justice Statistics, Statistics Canada: When we are look at people serving community services such as probation, a conditional sentence or some type of combination, we see that the highest rates of re-involvement occur for property offences. Offences such as theft, possession of stolen property, offences against the administration of justice, and failure to appear are included in that list.
Senator Nolin: Is there no infraction, no crime envisaged by Bill C-9?
Ms. Johnson: Robbery is among them, and some of the more serious violent offences such as major assault and attempted murder, yes. Compared to the overall rate, they have slightly higher rates of re-involvement, yes.
Senator Nolin: It appears that you have examined your statistical data with a keen interest.
The Deputy Chairman: It seems to me that the 24-month time period that you are looking at recidivism, you refer to it as re-involvement, where the people who have finished their conditional sentence are only one-half as likely to reoffend as people have completed a sentence in custody. Why just the 24 months? Are you tracking them for longer than that? This seems to be a short period of time.
Ms. Johnson: We are in the process of implementing this survey. It is early on in the process. This is all we had at the time, but this is a longitudinal type of survey. We will be able to provide longer-term data as the years go on.
Senator Rivest: I, too, note that there is a lot of statistical data to analyze. I would like to know your general feeling. Within the public as a whole, these issues are very controversial, including those dealing with parole that give rise to a whole set of varying opinions, as well as the specific issue of conditional sentencing, of course.
At first blush, having followed your presentation, it is not quite obvious that Bill C-9 will indeed bring about an improvement. However, I find that, quite apart from purely statistical data, there are many ideological dimensions. For example, we will hear the police representatives who will tell us that they are against it. In your view, according to your general feeling, before toying with this proposal that is reasonably well received by the Canadian public opinion, as we are doing in Bill C-9, has the time not come in Canada to proceed with a comprehensive and general examination of the whole set of provisions concerning sentencing, be it by way of imprisonment or conditional sentencing or access to the parole system?
Once again, subject to a more direct analysis of the whole set of statistical data that you have done, it seems to me that we are doing a lot of improvisation around this extremely serious social problem. Police officers, for example, will certainly say that this system is not good. On the other hand, the experts will say — and your statistics seems to bear this out — that there are a lot of qualifications to be made. Here we are presented with a bill that seems artificial and I believe that you have said that you are not able to assess the impact it will have. In Canada, in judicial, police or social circles, would it not be time to have a more general view of the whole issue of sentences that are being imposed and of the management of these sentences within the system?
Ms. Barr-Telford: That question is difficult to answer from the Statistics Canada point of view. With respect to what we can look at with our data in sentencing, in much the same way that we look at our data in this context, we are able to use our courts data because we are now gathering specific, more person-level micro data information through all of our statistical programs. We are able to look at such things as the mitigating factors around particular sentence types and we are able to disaggregate within the data how that plays out. That helps us to understand some of the factors that may be under consideration at the time in which sentences are imposed.
We can talk, and Mr. Grimes can add to that if he likes, about the types of data that we offer around sentencing and how sentencing takes place.
Craig Grimes, Project Manager, Courts Program, Canadian Centre for Justice Statistics, Statistics Canada: We have taken the court database and looked at individuals convicted of various offences, not just Bill C-9 offences but other offences, and looked at the prior conviction history. You have seen some of that information in this deck. It is possible to look at prior conviction history in relation to a series of offences and if you start early enough in a person's conviction history and look at his or her subsequent actions, you can use that information as a way of measuring the impact of sentencing. In the future, we will link with the data that we have now on the corrections side, the details around the types of conditions, the types of programs, to get a better sense of what the true sanctions are that individuals are exposed to when they are in sentence custody or on conditional sentencing.
We are just getting to the point where we can really start to answer some of these questions about the types of programs that individuals are exposed to and hopefully the impacts of those programs.
Senator Joyal: Welcome. I would like to come back to chart 17 and follow up on Senator Nolin's question. I will try to put it in my own lay terms and you can tell me if I am correct in my reasoning.
According to your statistics, a person who is under probation and/or a conditional sentence will be less exposed to recidivism, than a person who has served a sentence in prison; am I correct.
Ms. Johnson: The conditional sentence or probation and sentence custody line must also be considered. These are individuals who may have been sentenced to a period of sentence custody followed by probation, for example, which happens quite frequently. These individuals may have breached a condition on conditional sentence and have landed themselves in prison.
There is a lot of mix in this group; however, what is specific is that they do spend some time in sentence custody. We can see from this is that they also have higher rates of re-involvement in correctional services than those who only spend their time in community correctional services.
The Deputy Chairman: Yes, we can see that it is almost double the rate.
Senator Joyal: Let me rephrase my concern. Bill C-9 wants to exclude from conditional sentences a person who is found guilty of a serious personal injury offence. The person will be sentenced to prison and will not receive a conditional sentence.
If a person is sentenced to prison because the he or she is excluded from conditional sentencing because of the accusation of serious personal injury offence, and that person had a higher rate of return to the prison system, it means that we are not improving the safety of citizens by not giving that person the proper sentence. It means that the person is more disposed to recommit an offence than the person who has received conditional sentencing.
Ms. Johnson: We have to keep in mind that at the time of sentencing the judges are taking into account what they see as the individual's risk to the community. It may be that the judges are doing a good job in assessing that risk and that is why we have the right people in the community corrections.
Senator Nolin: It is not black and white; it is not prison or conditional. It would be fair to say there is a list of options to which a judge has access. Of course imprisonment is one, and conditional sentencing is on that list. Bill C-9 is trying to remove that option for the judge but the rest of the list still exists; am I right?
Ms. Barr-Telford: There are multiple factors taken into account.
Senator Nolin: That is why it is not black and white.
Ms. Barr-Telford: Within this graphic as well, we may be seeing some reflection of risk assessment at the time of the awarding of the sentence. We may also be seeing some factors at play with respect to the nature of the program itself. We cannot disentangle one from the other within this particular data set and therefore we cannot speak directly to that. However, within the presentation package are some of those mitigating circumstances and some of those mitigating factors with respect to the awarding of conditional sentencing, which include the indictable, the prior conviction history and so forth. We have seen that at play as well.
Senator Andreychuk: If we are taking a pool of people to whom the options apply, some may get incarceration, some may get conditional sentencing. If I understand what you are saying, those who are incarcerated are more likely to reoffend. That does not tell me much, except had it been equal to or the other way around, then I would say incarceration is working in a way I do not understand or did not from the past, and conditional sentencing is not working. However, what you are saying is that those who are incarcerated are more likely to reoffend. The only thing I would draw from that is that surely incarceration is the last resort in our sentencing system. The most likely to reoffend, the people who commit the most horrific crimes are the people who should be incarcerated as opposed to people who have other factors upon which we are likely to risk some other alternate sentencing technique.
Ms. Barr-Telford: As we said, there is most likely a reflection of that kind of risk assessment appearing within the data. The difficulty for us is disentangling the role of that within this particular data.
Senator Andreychuk: It is always difficult to define prevention. You cannot take credit for it on one factor alone as there may be so many other factors including psychological, environmental, programmatic, et cetera.
Senator Fraser: Mine is a lay question. I just want to be sure I understand. What you are saying in that chart is that people who serve conditional sentences are statistically less likely to reoffend than those who have been incarcerated. However, you are telling us we do not know which is cause and which is effect. We do not know whether the reason they get the conditional sentence is that they are less likely to offend, or whether the reason they are less likely to offend is that they have not been shut up with a bunch of hardened criminals. Am I right so far?
Ms. Barr-Telford: Yes.
Senator Fraser: I also gather from what you say that a reasonable guess would be, in fact, it is all mixed, both factors are at work, and it is not just one cause or one effect. A person receives a conditional sentence because he or she is deemed to be less likely to reoffend but, the fact that he or she is not shut up with a bunch of hardened criminals makes the person less likely to turn to a life of crime. Is that a fair summary of what you are trying to tell us?
Ms. Barr-Telford: There are multiple factors that may be at play. We cannot say it is one or the other, but as you point out, it is likely a combination of many factors.
Senator Joyal: The decision to impose a conditional sentence is based on an evaluation of a multiple set of factors that a judge will take into account. The person who receives the conditional sentence has a better chance to reintegrate into society and become an exemplary citizen. If this bill takes the discretion away from the judge, the judge will have no other choice but to impose incarceration.
Are we not sending to prison persons who would have a better chance to reintegrate into society than those who are coming out of prison?
Mr. Grimes: I believe that the legislation does not preclude the judge awarding probation instead of a conditional sentence. It is not cut and dried whether the individual would be sentenced to a conditional sentence or prison; there are other options.
One of the issues that arose when a conditional sentence was brought forward as a sentencing option was the issue of individuals who had previously received probation receiving a harsher conditional sentence. Another issue was the individuals who had received custody when there was not an option that was in between probation and conditional sentence now receiving a conditional sentence. Probation, I believe, is still an option for a judge. There is still some discretion.
Senator Joyal: Yes, but a judge will not have to choose between incarceration and probation. According to this bill, if a person is found guilty of a serious personal injury offence, since the conditional sentence is removed as an option, probation can come after incarceration, but it is not prison or probation, as I understand the way it will work. Am I correct?
Mr. Grimes: It is not clear from the bill. This was one of the questions that came up when we look at the data. At present, some get a conditional sentence, prison or probation; there are various sentencing options.
Senator Joyal: Yes, but we are talking about the way the bill is now. The bill closes the option of conditional sentence. There are no three ways, at this point in time.
Mr. Grimes: That is correct.
Ms. Barr-Telford: That is correct.
Senator Joyal: There are only two ways and in those two ways, one comes before the other.
Ms. Barr-Telford: In terms of the application of the legislation, that is something that is very difficult for us to speak to because we are producing the data on the awarding of conditional sentences in the past. To predict and to discuss the way in which the bill will be implemented, should it be adopted in the future, is difficult — if not impossible — to do at this point in time. We simply cannot answer how that will unfold.
Senator Joyal: In other words, if we have to make a comment or a reflection on the bill as it stands, based on the information that we have at hand, we cannot have a clear idea of its impact on the accused who will be sent back into the prison system after the implementation of this bill.
Ms. Barr-Telford: As I said, we could not come up with a definitive number of people who would no longer be eligible for a conditional sentence under section 752, and the "serious personal injury" definition. We were able to take those 13,267 cases that we could identify from 2003 and do an analysis to see how many were violent in nature and how many were proceeded by way of indictment or indictable offences, for which the 10-year sentence was a factor. When we did that, we found that at the 3,600-crimes-against-a-person end, we were left with about 1,100 that corresponded to that definition — that is, violent in nature, indictable or proceeded by way of indictment and with the 10-year sentence option. While we cannot give you a definitive number, we could look at that 13,000 cases and divide them in that particular way.
The Deputy Chairman: Have you tracked those through your longitudinal study to see how many of those 1,093 have actually reoffended?
Ms. Barr-Telford: No, we have not been able to do that. When we are doing longitudinal studies, we can do them within our own program but sometimes we need to go across our program. We need to link our data across our Courts Program and to our corrections program, and if reoffending is an issue, to our police program. We are specifically talking about re-involvement in the correctional services. Those individuals have made their way back into the correctional system at that end, so it is not all encompassing.
In many cases, to be able to answer those kinds of questions around the criminal career requires us to be able to bring together our data sets. In some cases, we have been able to do that, but not in that particular case.
Senator Joyal: In other words, we cannot conclude, from the nature of the bill as it is proposed, that we will not have a higher level of persons who have been found guilty of serious personal injury offences back in the prison system in the context of the two-year study you have done.
Ms. Barr-Telford: Ms. Johnson can tell you more about who is in that two-year study and how that worked.
Ms. Johnson: There are obvious differences between some of the offence profiles of those who had a conditional sentence versus those who had probation. I cannot speak to that directly at this time.
Generally speaking and based upon those who are serving only community sentences, there are quite a few that have common assault, theft and possession of stolen property and other Criminal Code offences, excluding traffic offences. When you look at some of the personal injury offences, they are represented more in our community and custody group, as well as those who are only spending time in custody.
Senator Joyal: I am trying to understand the assumption that if a person is found guilty of a serious personal injury offence, that person is no longer sentenced to a conditional sentencing provision; we send that person to prison — we make the street safer because that person is in prison.
That person is in prison for a period of time but once that person is freed from prison, does that person not pose a higher risk to society? People serving in prison show a higher rate of recidivism than those who have served conditional sentences. We improve safety in society for a short period of time — the time that person is in prison; however, once that person is out of prison, he or she represents a higher risk. We might be helping in the short term but we are not helping the safety of society overall.
Ms. Barr-Telford: In order to be able to answer that question directly, we would need to be able to do an analysis of the offence types, the serious violent offences and so on. We would need to do a comparative analysis on re-involvement by offence type. Within our present data set, we are limited in terms of our ability to do that just in terms of the size of the samples with which we are dealing. To be able to answer that directly, we would need to be able to conduct that kind of particular analysis. To date, we are unable to do that.
Senator Joyal: We are left with your general conclusion that persons who have been sentenced to custody generally have a higher rate of return to the system, 40 per cent, in comparison to probation or conditional sentencing at 18 per cent and 23 per cent.
Ms. Barr-Telford: That is what we are able to offer in terms of re-involvement at this particular time within our data set. As discussed, it is very likely that multiple factors are at play. While we can show you what is happening, we cannot speak directly to why it is happening.
Senator Joyal: If I try to understand the reasoning behind Bill C-9 or the statistical data or objective data that might have triggered Bill C-9, I see that it is not based on clear information as to its impact on the future of safety in society.
Ms. Barr-Telford: I most certainly cannot speak to the possible future impact of Bill C-9 as it is currently worded.
The Deputy Chairman: Senator Joyal, we have other witnesses due at 12 o'clock.
Senator Bryden: I have a question for clarification, and I do not know that I can get it from the witnesses. Did I understand you to say that probation is a separate penalty from prison or from conditional sentence?
Mr. Grimes: Yes, it is.
Senator Nolin: Yes, to all of the above.
Mr. Grimes: Generally, within the data set, about one-third receives prison as the most serious sentence. About 6 per cent receive a conditional sentence. I do not have the exact figure but somewhere in the order of 40 per cent receive probation. I can get that exact figure and provide it to the committee.
Senator Bryden: The way section 742.1 is worded a person convicted of an offence other than a serious personal injury offence, and prosecuted by indictment for which the maximum term of imprisonment is 10 years or more, in that instance, it is not open to a conditional sentence but probation is available. Although the maximum penalty would be 14 years, it is still open to the judge not to impose that penalty but, instead of that, to put the person on probation.
Senator Andreychuk: We would have to review the Criminal Code.
Senator Nolin: Of course, the judge would feel a signal from Parliament.
Senator Andreychuk: I think we have made the Criminal Code so complex that that may be the rule, but there may be exceptions; I do not know.
Senator Nolin: No.
Mr. MacKay: No, the person is still in prison for two years plus a day, plus probation for suspended sentence.
Senator Joyal: There is a minimum time a person must serve before going on probation.
Senator Andreychuk: No.
The Deputy Chairman: Section 731.(1) states:
Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
(a) if no minimum punishment is prescribed by law . . .
They can only give you probation if there is no minimum punishment in the law. Am I right?
Senator Joyal: Yes. That is where I draw my own affirmation.
Robin MacKay, Analyst, Library of Parliament: That is only if they are suspending the sentence. If there is a minimum, they can do other things.
The Deputy Chairman: They may:
. . . suspend the passing of sentence and direct that the offender be released . . .
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct the offender comply with the conditions prescribed in a probation order.
Senator Joyal: Not exceeding two years.
Senator Bryden: That is the actual sentence; it is not the maximum sentence. What is being said is that if you put someone in the clink for two years less a day or whatever, then the rest of it can be done by probation.
Mr. MacKay: Yes, up to three years maximum. For example, for impaired driving, there is a minimum imprisonment, which I think is 14 days on the second offence.
Senator Bryden: This seems to work on the serious offences with a 10-year maximum or more. Do those sections of the Criminal Code allow a judge not to use conditional sentencing but, although the charge would entitle him to imprison the accused for 12 years, not do that but impose a two-year sentence, suspend it and put the person on probation?
Mr. MacKay: That is correct. For a serious offence like attempted murder, for example, which has a high maximum sentence, the judge could give a suspended sentence and probation, or could send the accused to jail for two years less a day plus a three-year probationary term. That still remains an option if Bill C-9 is adopted, yes.
Senator Bryden: It seems a little strange to me that you would miss. You say that it is not open to conditional sentencing, which in fact restricts the freedom of the person more than probation does. Yet, for the same crime, the judge is in a position to use probation instead of a 12-14-year sentence
Senator Nolin: That was the debate we had in 1996.
Senator Bryden: I was not here then.
The Deputy Chairman: If I can interrupt, these are not questions that our statistical people can answer.
Senator Andreychuk: The incarceration rates in Canada have been rather static. In the United States, they have been very heavy, and they seem to be levelling out or dropping, but in the U.K. they appear to be rising. I say that because Dr. Al Aynsley-Green, the Children's Commissioner for England, said that we should pay attention to what is happening in Europe and, in particular, in the U.K., where more and more children are being incarcerated.
Are we seeing any sharp rises or declines, concerning the incarceration rates overall for all offences, particularly with our Canadian youth? If you can identify the youth, you will know what your adult population will be generally.
Mr. Grimes: Generally, within the adult criminal court data set, the proportion of cases being sentenced into custody has been relatively stable for the last 10 years, fluctuating very little around somewhere between 33 per cent and 35 per cent.
On the youth criminal court side, with the introduction of the Youth Criminal Justice Act, we have seen a drop. I cannot tell you the exact number, but I can provide that information to the chair. There has been a drop with the introduction of the Youth Criminal Justice Act with respect to the other measures that are introduced in that act, such as a warning or writing an apology note or a reprimand. There are other options that have to be addressed before the individual is sent into custody. There has been a dramatic drop in the custody figures for youth in Canada.
Senator Andreychuk: We are using alternate methods and we are tracking them, but I am concerned about whether we are keeping our youth out of the incarcerated population and actually working with these youth. You can drop your incarceration rate for two or three years in youth court as a result of these alternate methods, but if we do not sustain the alternate methods and we do not know what is really happening to these kids, will we see a continuum of problems. What will happen when they get into adult court where they will face the kinds of consequences that are contemplated in the Criminal Code?
Mr. Grimes: I cannot speak to the impact of the Youth Criminal Justice Act. I know there are a number of graduated interactions with the young offenders aimed at trying to adjust that behaviour prior to putting them in custody. The legislation is very new. Our data set is a bit behind the legislation. I cannot speak with any certainty about what has been happening over the three years that the legislation has been in place. We have only seen one year of data and we have noticed a drop-off in custody. Our expectation is that those other measures are being brought to bear.
Senator Andreychuk: You are tracking that, then.
Senator Nolin: We were asking that when we studied that law three years ago. I am glad to hear that we will have access to that kind of information because that was the key three years ago.
Ms. Johnson: We have corrections data up to 2004-05 although I do not have that with me today. However, we have definitely seen a decline in the number of youth in custody.
Senator Andreychuk: My final question is on conditional sentencing. Do you have the statistics on the ages of those who get conditional sentencing? Do we have any idea? Is the conditional sentencing going to the 19-year-olds and 20-year-olds or are they going to the 40-year-olds and 45-year-olds? That is another factor.
Mr. Grimes: That is a question that we can answer with the data set. I do not have that information in front of me, but if the committee would like I could prepare a table that shows the age distribution and the gender of individuals receiving conditional sentences.
The Deputy Chairman: We would appreciate that.
Senator Andreychuk: If you look at the patterns of recidivism, you will see that they begin as youth and they repeat and repeat. There is a drop-off in the older offenders; they stop committing crimes at some point. This does not apply to everyone, but there is a trend that way. Are you using conditional sentencing on the more mature offender because of some of this recidivism data in the background? Certainly, judges have looked at recidivism and the likelihood to reoffend. Age is important to me.
Mr. Grimes: We have looked at prior conviction history and we have looked at that history within the adult population. We have not looked back to see if individuals have been dealt with by the youth court and have spanned those two court systems. Within the adult criminal court data set, approximately 50 per cent of those with conditional sentences had no prior conviction history.
Senator Andreychuk: That is interesting.
Senator Jaffer: Did I understand you to say that someone who has been given a conditional sentence has a longer period of supervision?
Ms. Barr-Telford: Yes.
Senator Jaffer: Do you have data to show that their rehabilitation is better than a person who has been incarcerated?
Ms. Barr-Telford: Not directly, no. We have the information that we have provided to you today in terms of re-involvement by conditional sentence. We have the information on the average sentence length and we know it is much higher for a conditional sentence. The period under supervision is much higher for a conditional sentence than it is much higher than for a prison sentence, for example.
Senator Jaffer: If they breach the conditional sentence then they must serve the whole sentence, correct?
Ms. Barr-Telford: There are multiple ways to deal with a breach of a condition. For the couple of jurisdictions for which we have the data we looked at those who had completed a conditional sentence involvement within those jurisdictions. Of those, 36 per cent had breached a condition to the extent that it reached that threshold of severity that it resulted in an admission to custody.
Senator Jaffer: Do they have to serve the whole period?
Ms. Barr-Telford: It depends.
Senator Jaffer: Bill C-9 says that the majority of conditional sentences, and the tables you have shown, are handed down as a result of guilty pleas. Do I understand that correctly?
Mr. Grimes: That is right.
Senator Jaffer: With us bringing in tougher legislation, could it result in people not pleading guilty and that could cause issues around legal aid?
Mr. Grimes: What we know from the data set is that for convictions in adult criminal court approximately 90 per cent of all convictions are arrived at as a result of a guilty plea. For offences where we see the sanctions increasing, we see a decrease in the proportion pleading guilty.
Senator Jaffer: That then puts stress on legal aid because more people will be fighting cases. That information is not within your statistics.
Mr. Grimes: No, that is right.
Senator Rivest: I would like to underline your professionalism as a statistician, because you are being very cautious and we would like to have clear conclusions. You are skillfully qualifying your statements. This reminds me of a remark made by a distinguished American economist, Mr. Samuelson, who, talking about statistics, said that statistics are somewhat like bikinis in that what they reveal is interesting but what they are hiding is even more so. In this issue, what is being hidden are individual problems. There is never a group of 5,000 persons who are put on probation. The judge makes a decision based on one person, taking into account a specific and detailed assessment of the chances that this individual will or will not re-offend.
For example, in the probation system, if we were to assess the rate of re-offence during a period or 10 or 15 years, I believe that would be useful in statistical terms. I don not know whether this exists or not. We are making comparisons on the chances that the individual will re-offend or not, given a sentence of imprisonment, a conditional sentence or probation, and that is all very well, it might be interesting and useful to know. But perhaps it would be more revealing about the performance of our judicial system if, for example, we were to take into account the investments that have been made to improve our probation system. Are there statistics that would tell us the rate of re-offence among offenders under probation, notwithstanding the nature of the crime, and the rate of re-offence registered 5, 10 or 20 years ago, taking into account the investments and efforts that were made to improve each of the systems? Do these statistics exist?
Ms. Barr-Telford: Your scenario is timely in that we are engaging with multiple partners in how we define that concept called recidivism as a large umbrella concept with multiple components. As our data become more sophisticated, as we gather more detailed person-level and incident-based information, and our capacity — both methodologically and through our own experience — grows to bring those data sets together, we will be better placed to answer the types of questions you are addressing. The advantage to having had invested multiple years in gathering these micro-level data is that we are now just beginning to realize the power of those data.
Senator Nolin: I do not want you to think that my question is fraught with chauvinism, but at the bottom of your slide number 7, it says that data on conditional sentences are not available for Quebec.
I have two questions: Why is that so and does it affect the quality of your statistical data for the whole of Canada, since the legislation that we are being asked to pass will be enforced in Quebec?
Mr. Grimes: In collecting the information, we have a set of national data requirements. We go to each jurisdiction and build an interface to their local justice information system. We try to go across the country and build those interfaces in a timely fashion.
Quebec is in the process of redesigning their information systems. They have just finished redesigning their youth justice information system. We are waiting for them to complete their project on the adult criminal court side before we go back in.
It was only in the last year or so that we started receiving data on conditional sentencing from Saskatchewan. Since 1998, we have been going across the country updating our interfaces to those systems. We have been identifying the projects that exist within the jurisdictions to update their systems locally, and trying to time it to go in and collect that information when it makes sense.
Senator Nolin: Are the results you are showing us affected by the lack of access to data across the country? Can we assume those numbers would be the same, including Quebec?
Mr. Grimes: This data represents roughly 70 per cent of the population.
Senator Nolin: Yes, I understand, but the law will be applicable to 100 per cent of the population.
Mr. Grimes: Unfortunately, I do not know whether the propensity of sentencing someone to a conditional sentence is different in Quebec.
Senator Joyal: I would like to come back to chart 5, which is about the population in custody. Since 1995-96, there has not been an overall increase of the population in prison because there has been a decline of prison sentencing and, of course, an increase into the non-sentence custody remand.
Are you in a position to give us idea of what would be the increase in the prison population with implementation of Bill C-9, since the conditional sentencing will no longer be available for a group of persons found guilty?
Ms. Barr-Telford: We cannot give you the definitive number. We do not have the exact number of those individuals who will no longer be eligible for a conditional sentence and then, after that, what the process will be. I bring you back to that figure of 1,100 that we were able to provide, and the description of that that corresponds to — being violent offence, preceded by indictment and eligible for that 10-year sentence.
Senator Joyal: That is the ballpark figure.
Ms. Barr-Telford: That is the only way we can run the analysis with the available data we have. Predicting the impact of section 752 in terms of its serious personal injury definition beyond what we have been able to do is just not possible for us.
Senator Joyal: In other words, if we want to know what the impact will be in Quebec or Saskatchewan, as per chart 6 — all the redistribution of those 1,100 or 1,200 persons — that would be a fair assessment of what it would mean for a province, which is that its incarceration rate would increase.
Ms. Barr-Telford: That was a national value we gave you. Are we able to do that provincially?
Mr. Grimes: Chart 6 is a provincial chart.
Senator Joyal: Yes, Canada's incarceration rates — highest in the north and so forth. However, I am trying to understand the impact of Bill C-9 on prisons, because there will be more people in prison if Bill C-9 is implemented. What would be the cost on the overall public purse and on the available places in prison?
As you know, prisons are already filled to the point of capacity. If we increase the number of people in prisons, we must be sure we are able to receive them, and that we have the money to take care of them. We know it is more expensive for the government to maintain a person in prison than to have the person under probation or under conditional sentencing.
Ms. Barr-Telford: I do not have a cost figure to offer you in terms of the cost impact of those 1,100 individuals, for example. However, I believe we do have some information on the costs of a custodial sentence versus the cost of community supervision. I will verify what we do have. Whatever we do have with respect to the costs, I will make sure that is provided to the chair. I am not 100 per cent what I have in that domain.
The Deputy Chairman: Thank you very much. As witnesses, you have been very clear and cautious, sticking exactly within the limits of your data.
Honourable senators, for our second hour, we have David Griffin, the Executive Agent for the Canadian Police Association. The police association is the national voice for 54,700 police personnel across Canada, which includes police in 170 police services across the nation, from Canada's smallest towns and villages as well as those working in our largest municipal and provincial police services, the RCMP, railway police and First Nations police personnel.
David Griffin, Executive Officer, Canadian Police Association: I think you have saved me reading my introduction. Good afternoon.
Our goal is to work together with all parliamentarians in order to bring about significant reforms that will reinforce the safety of all Canadian men and women, including those who have taken an oath to protect our communities.
Canada must close the revolving doors of its judicial system. For more than a decade, police associations have been advocating reforms within the Canadian judicial system. More particularly, we have requested changes that would strengthen our laws concerning sentencing, custody and parole of violent offenders. For a long time now, the Canadian Police Association has been urging governments to put an end to the revolving doors of the Canadians judicial system. Chronic violent offenders are entering the correctional and judicial systems through one door only to come out by another door, which results in a feeling of frustration among police officers and is increasing the level of uncertainty and fear within our communities, as well as bringing about heavy constraints in terms of costs and resources for our correctional and judicial systems. We are convinced that a first positive step to meet these concerns would be to eliminate access to conditional sentences for some offenders.
While conditional sentencing was introduced to bridge the gap between probation and incarceration for less serious, non-violent, minor offences, the application of the law by the courts has permitted offenders convicted of serious and violent crimes to avoid incarceration and serve their sentences in the community. The original Bill C-9, as proposed by the Minister of Justice, would have amended section 742.1 of the Criminal Code to provide that a person convicted of an offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more is not eligible for conditional sentence. While the CPA supported the objectives set out in Bill C-9, we expressed concern that the maximum term of imprisonment of 10 years or more would leave out certain offences that should not be eligible for conditional sentencing.
The Standing Committee on Justice and Human Rights subsequently reported with amendments to Bill C-9, which the House of Commons adopted. These served to reduce the exclusions for conditional sentencing to:
. . . a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more.
The Canadian Police Association is disappointed by this amendment to Bill C-9.
The current law is inadequate. Canadians are acutely aware that current sentencing and parole practises are inconsistent with public expectations, undermining public confidence in law enforcement and, more particularly, our entire justice system. Canada's front-line police officers interact with members of the public and victims of crime on a daily basis and understand and share in their sense of frustration. People who are introduced to our justice system as witnesses to or victims of crime are frequently at a loss to understand the principles and processes applied in sentencing convicted offenders, how the sentences are served and the opportunities available for early release. We believe that offenders should be held accountable for the offences they commit. Each victim is equally important. Unfortunately, the current sentencing and conditional release provisions do not recognize this principle.
CPA members are very concerned that court decisions applying the current legislation have permitted offenders to receive conditional sentences of imprisonment for crimes of serious violence, including manslaughter, sexual assault offences, driving offences involving death or serious bodily harm, drug trafficking, major thefts and theft committed in the context of a breach of trust.
Canada's police officers have lost confidence in a system that sees violent offenders regularly returned to the streets. We need to restore meaningful consequences and deterrence in our justice system, which begins with stiffer sentences, real jail time and tougher parole eligibility policies for repeat and violent offenders.
The recommendations that have been consistently advocated by CPA include Parliament should convene an independent public inquiry into Canada's sentencing, corrections and parole systems for the purpose of identifying measures to provide meaningful consequences for offenders, reinforce public safety and instil public confidence. CPA recommends that in determining the level of security for serving sentences, an offenders' criminal history and crime for which he ore she is sentenced should be the predominant factor. Our third recommendation gives victims input into decisions concerning sentencing, prison classification, parole and release; and finally, tightens our laws and prison policies to protect Canadians from violent criminals.
On April 20, 2007, the Honourable Stockwell Day, Minister of Public Safety, announced the appointment of an independent panel to review the operations of Correctional Service Canada. The CPA welcomes this announcement and is committed to contributing to the review and working with government and Parliament to identify significant improvements to the justice system.
The CPA contends that persons convicted of violent and sexual offences or crimes committed where the potential for violence exists should not be given an opportunity to be considered for conditional sentencing. We maintain that sex offences, especially those offences involving children or violence, should be banned from conditional sentencing. For example, criminals convicted of the following offences would not be covered by Bill C-9: Luring a child via the Internet, removing a child from Canada, abduction of a person under the age of 16.
The CPA is further concerned that offences committed against those sworn to protect our communities, such as the crime of assaulting a police officer, and offences that have serious police officer and public safety consequences, such as flight, are not covered by Bill C-9. This is because the maximum sentence for these offences falls short of the proposed 10-year minimum.
We acknowledge that the current sentencing scheme contained within the Criminal Code is at times contradictory and illogical. This serves to further support our contention that the sentencing regime should be reviewed along with current systems and parole systems. We further submit that Bill C-9 should be amended to prohibit conditional sentences for the offences of flight, assaulting a police officer, disarming a peace officer, or participation in activities of a criminal organization.
We contend that any person, who chooses to assault a peace officer in the lawful performance of his or her duties, or to jeopardize his or her safety and the safety of others by engaging police in a motor vehicle pursuit, should be barred from receiving a conditional sentence. In addition, Bill C-9 does not capture offences involving weapons where the Crown chooses to proceed summarily, such as possession of a weapon for a dangerous purpose, possession of a weapon in a motor vehicle, possession of restricted or prohibited firearm with ammunition, possession contrary to an order. We contend that a conditional sentence is not an appropriate disposition of a charge involving unlawful possession of a weapon or firearm.
The arguments against limiting the use of conditional sentencing for serious non-violent offences are misguided at best. As front line professionals police officers see first-hand the far-reaching impacts of minimizing the seriousness of property crimes and other so-called non-violent crimes. The penalties for serious property crimes have become so trivialized, with an absence of meaningful and proportionate consequences, that criminals have come to understand and work within the system, committing more criminal acts. Whether they steal a vehicle or commit a break and enter into a home, offenders know that should they get caught they will be back out in the street in no time.
The impact on families victimized by such offences is marginalized as it is expected that insurance will cover the monetary cost. A glaring example of this situation is auto theft. Young offenders and car thieves know that there are no meaningful consequences for car theft. They steal cars for cash with little fear of apprehension and even less fear of consequences from the courts. It is not until the police attempt to stop a stolen vehicle, a chase ensues and someone gets maimed or killed, that people pay attention.
Property crimes are often linked with other serious criminal behaviours and social issues, including drug trade, organized crime and white collar crime. These are interconnected and cross-cutting issues that cannot and should not be neglected. Unfortunately, drug trafficking and production offences also fall within the category of non-violent offences, which totally ignores the tragic consequences of drug abuse in our communities and the inextricable link between gang violence and the drug trade.
According to the library of Parliament legislative summary on Bill C-9, the Canadian Centre for Justice Statistics reports that the annual cost of supervising an offender in the community is $1,792. We are concerned that these costs are woefully inadequate given the nature of offenders being released into the community. We would estimate that the current level amounts to no less than one hour per week for supervising offenders serving conditional sentences in the community. We contend that the probation and parole officers serving in our communities are seriously understaffed and overworked, minimizing the effect of supervision.
In conclusion, the experience since conditional sentencing was introduced in 1996 demonstrates the application has far exceeded the intent. We urge this committee to consider amendments to Bill C-9 that will tighten these provisions and exclude application to more serious crimes. We content that limiting the use of conditional sentencing reduces the risks for communities that continue to be victimized by violent criminals, sexual offenders and serious invasions of their privacy and intimacy through property crimes.
We recommend that the bill be strengthened by addressing crimes of violence, sexual offences and serious risk. Bill C-9 should address the seriousness of certain violent and sexual offences that do not meet the narrow criteria adopted in the House of Commons while keeping the option of conditional sentencing for less serious crimes and where an alternative sentencing mechanism is appropriate.
Bill C-9 as passed by the House of Commons does not adequately address the revolving door justice system and instil meaningful and proportionate consequences for serious and violent crimes. The amendment adopted in the House of Commons is vague and leaves open to interpretation the application of the definition of serious personal injury offence as contained in section 752. We submit that Parliament should enumerate the offences for which conditional sentencing applies.
Senator Baker: I welcome the witness to the committee. I would like to examine the option of the Crown to proceed summarily or by indictment. You say that the bill would not capture offences involving weapons where the Crown chooses to proceed summarily, such as possession of a weapon for a dangerous purpose, section 88, possession of a weapon in a motor vehicle, section 94, possession of a restricted or prohibited firearm with ammunition, section 95, or possession contrary to an order.
What you are saying is that although the Crown proceeded summarily with these offences, to you these offences are so serious that they should not escape capture of the legislation. Would you not agree though that there are variations on that theme?
The first thing I thought about when you read this was possession of a weapon, possession of a firearm. The definition of a weapon under section 2 of the Criminal Code is either something that could be used to take the life of someone or injure someone. It is an instrument that is used to threaten someone or intimidate someone.
This pencil could be a weapon if I am threatening or intimidating someone. A BB gun is considered a firearm for purposes of section 2 of the Criminal Code.
Do you not think the discretion to pursue conditional sentencing in matters that pertain to the use of a firearm, if it were a BB gun or a weapon, if it were a pencil, should be left for the court? When you list off possession of a weapon, possession of a restricted or prohibited firearm, we changed the law in 1992 to say it could mean something that could be capable of conversion into a prohibited firearm. It could be an antique on someone's wall if it could be converted, which is what we changed the law to in 1992.
Do you not recognize that there is certain levity, if you want to call it that, within the law to enable an adjudicator to say this would qualify for a conditional sentence and the Crown to be able to go to trial and say that this should be proceeded with summarily and not indictably?
Mr. Griffin: That is a good question, senator. I would say there are two parts to that question. The first is the essential element of the charge, such as possession of a weapon for a dangerous purpose. What purpose and circumstance warrant laying the charge? Then, there is discretion in terms of whether or not the police officer will lay the charge. There is discretion in terms of the Crown prosecuting the charge and then there is discretion in terms of whether the judge will convict and then how he or she will sentence.
If that discretion was working well, we would not be here. If we look at the previous witnesses and their presentation concerning plea bargaining, 90 per cent of convictions are as a result of guilty pleas and plea bargaining. I believe that is what I heard this morning. The exercise of that discretion is the concern. To some degree our justice system has become a factory where we are simply rotating these people through and we have removed any sort of meaningful consequences or intervention in terms of how they are brought back into the community.
Senator Baker: Do you not agree, though, that an offence cannot simply be categorized under the code? When an offence is considered to be a hybrid offence, that is, one capable of being pursued summarily or indictably, under our system the police officer lays the charge and conducts the investigation. Then there is a second examination of the facts by the Crown prosecutor. The Crown prosecutor looks at the case and makes a determination based on the seriousness of the offence. He or she determines whether the crime was committed with a BB gun or a machine gun, or whether it was with a pencil that the accused threatened or intimidated someone. The Crown makes a determination on the hybrid offence.
You are suggesting the removal of the option of conditional sentences altogether for hybrid offences. You have listed off the sections of the code that are hybrid, where you can proceed summarily or you can proceed indictably and you are saying that these sections should be captured.
Mr. Griffin: We have not listed every hybrid offence, senator.
Senator Baker: No, you have not. I have just selected the ones that you mentioned and the first that comes to my mind is that a judgment has been made to proceed in a particular way. Just because they proceed summarily says to me that the Crown made up its mind that this is not something that should be proceeded with by indictment.
You say here that Bill C-9 will not capture offences involving weapons where the Crown chooses to proceed summarily and then you list off the hybrid offences and contend that a conditional charge is not an appropriate disposition of a charge involving unlawful possession of a weapon or firearm. Do you get my point?
I realize that you want to categorize everything across the board, but do you agree that there are cases where the Crown quite rightfully decides to go summarily and quite rightly could ask for a conditional sentence?
Mr. Griffin: Yes; however, I would suggest that in the majority of those cases it is in a plea bargaining process, working within the framework that they have. From our perspective there would be discretion in how they were to proceed, however, we believe certain classifications of offences, based on their risk not only to the community but also to our members who are intervening in those circumstances, warrant a higher remedy.
Senator Jaffer: Are you saying that discretion should be removed specifically from Crown counsel? If guilty pleas are taken, that is something Crown counsel is involved in. Are you saying that in some cases discretion should be removed, especially in cases dealing with weapons, meaning everything from a pencil to a gun? I will not repeat what Senator Baker said, but are you saying that complete discretion should be removed from the Crown?
Mr. Griffin: We are not removing complete discretion. The discretion to use a conditional sentence would be removed. That does not mean there is not other discretion. Many of these people, when they come to court, are facing a basket of charges. Whether we look at statistics or the outcome in terms of the conviction or the offence for which they are convicted based on a plea bargain, it may not even resemble what went into the court when they were charged. From our perspective, it is more about changing the balance in those types of discussions and recognizing that certain offences against the community that involve firearms, which is a significant issue in all of our cities right now, warrant a more serious response than a conditional sentence.
Senator Jaffer: I understand what you are saying. You are using words that are of concern to me. You are using "many" and so on. When you say those things, do you have any statistics to say "many?" I have concerns when you say this because what does "many" mean? From where do you get that information? That concerns me. Can you specify where you are getting that information? Is it anecdotal? Do you keep statistics? How do you come up with "many?"
Mr. Griffin: We do not keep statistics but we bring forward the experience of our members who are dealing with these issues in their community. For example, in the presentation you had this morning, the classification of all the different offences that were there was based on the charge for which a conviction was registered, and the most serious charge for all of the charges for which that person may have been convicted. If it shows one person convicted of break and enter, that person may have been convicted of 45 break and enters and it is not uncommon for a person going to court for a charge of break and enter to have multiple charges but in terms of statistics it is represented in a very narrow fashion. Our concern is that often that analysis does not necessarily reflect what is happening in the courtroom or what is happening in the community.
Senator Jaffer: I know you are trying to make a point but I would find it hard for anyone to agree, especially a Crown, if there were 45 breaks and enters, but we will not go into that. The statistics presented to us by earlier witnesses considered prior offences.
I very much respect the work you do and I congratulate you for the great work you do to try to keep our community safe. I am not taking that away; however, when you come here and make these assertions of "many" I feel that is based on anecdotal evidence rather than on statistics. That concerns me. You are basically saying what your members tell you. You do not have a system that sets it out, right?
Mr. Griffin: That is correct.
Senator Jaffer: You wanted to remove conditional sentences from participation in activities of criminal organizations. I thought that Bill C-9 covered that; does it not?
Mr. Griffin: I believe that Bill C-9 covers it provided it meets the other criteria as well of a maximum term of imprisonment for 10 years. To be honest, I would have to look at the Criminal Code provisions to look at how that applies.
Can I respond to the question regarding prior convictions?
The Deputy Chairman: Yes.
Mr. Griffin: I think even that is misleading. The fact a person does not have a prior conviction does not mean that they do not have a record as a young offender and have just become an adult and are treated as a first-time offender, or their first appearance in adult court they are treated as a first offender.
If I understand correctly, this does not include someone who may have had a discharge on a previous case either. This goes back to the series of steps that people go through before being subjected to a term of incarceration.
Senator Jaffer: I accept the youth record and the discharge; however, I understand on sentencing that the judge hears a prior record. He may not during the case, but the judge is aware. Is that not correct?
Mr. Griffin: I do not believe that is correct under the Youth Criminal Justice Act.
Senator Jaffer: No, not youth and discharge; I agree with you on that point. What if it is an adult record?
Mr. Griffin: If there are other records as an adult, that is correct.
Senator Jaffer: To discharge youth, I agree with you completely. It is not as though the judge does not know about prior convictions. After everything is in front of him, he then decides on the sentence. Would you agree with that?
Mr. Griffin: Could you repeat that?
Senator Jaffer: The judge is aware of prior convictions of an adult.
Mr. Griffin: The judge should be aware, yes.
Senator Jaffer: The judge is aware of all circumstances of this particular accused before he decides on sentencing.
Mr. Griffin: The judge should be, yes.
Senator Jaffer: Are you also saying that we should take away the discretion from judges on conditional sentencing on these offences that you have set out?
Mr. Griffin: On these offences that we have set out, yes.
Senator Jaffer: I know you gave your reason, but can you repeat it. I have forgotten it.
Mr. Griffin: I was making notes during the previous presentation; conditional sentencing has changed since it was first introduced. Conditional sentencing was introduced as a means of dealing with people with non-violent records who were not seen to be a threat to the community and could serve their sentence in the community. Generally speaking, the concept of property-related crimes was the stated purpose, as we understood it.
I believe the statistics this morning have borne this out, but over the last 10 years, police response to property crimes has reduced significantly. Police are no longer investigating minor property crimes and often people are not reporting minor property crimes. The level of reported property crime has dropped dramatically. That does not mean the actual incidence of crime has gone down but simply that is one of the drivers for that drop.
The profile of people coming before our court system and the profile of people in our institutions has changed dramatically as well. It depends on the nature of the offences, but from our perspective, the people coming into our system are generally more violent offenders, and we have a concern about repeat offenders. The result is that processes intended to deal with non-violent offenders, whether in custody or in the community, are being applied to a more violent offender profile. Our concern is that those remedies are not appropriate for that type of offender.
To take it one step further, if we look at the types of offenders presented to you today, these are offenders that have been sentenced to two years less a day, or less. There are few opportunities for rehabilitation or intervention when one takes into account the amount of time that may be served in custody while awaiting trial. If the offender is released on dead time back into the community, the time served at the time of conviction and sentence, there is absolutely no intervention. We would argue in certain crimes, particularly more violent crimes, the call for a more serious and proportionate response in terms of higher sentences is not just about deterrence or denunciation. It supports rehabilitation. It is only through a longer period of custody, taking away any time that has been served awaiting trial, that the corrections officials actually have the opportunity to undertake any meaningful form of rehabilitation.
Senator Jaffer: This legislation is about trying to keep our communities safe. You represent a group of people who try very hard to keep us safe. This is a bit outside my previous comment, but it is all about keeping communities safe. One of the commitments the new government made was to hire 2,500 more police officers. Has that happened?
Mr. Griffin: Has it happened yet? No.
Senator Jaffer: How many have been hired?
Mr. Griffin: None.
Senator Bryden: Mr. Griffin, thank you for joining us. I want to ask you about the Canadian Police Association. It is the voice for 54,000 police personnel and 175 member associations. I used to be in the labour law business, and many of the police forces were unionized and certified. The Canadian Union of Public Employees, for example, represents a good number of communities. Are those types of associations included in the 175 member associations?
Mr. Griffin: The legislative framework in terms of how they associate or how they are constituted as organizations varies from province to province. In the Atlantic provinces, specifically New Brunswick and Nova Scotia, some of our members are also members of the Canadian Union of Public Employees. I believe there is also the ability in Saskatchewan, although I am not 100 per cent certain. In the remaining provinces, particularly Quebec and Ontario, they are not allowed to affiliate with any other organized labour group.
Senator Bryden: Is the Toronto police union a member of your association?
Mr. Griffin: The Toronto Police Association is a member of our association, yes.
Senator Bryden: It is certified?
Mr. Griffin: No, because under Ontario legislation it is a separate statutory regime under the Police Services Act, which allows them to form an association, bargain collectively and represent their members.
Senator Bryden: But they have exclusive representation of the membership?
Mr. Griffin: Yes.
Senator Bryden: Where is your office located?
Mr. Griffin: Here in Ottawa.
Senator Bryden: Is it the national office?
Mr. Griffin: Yes.
Senator Bryden: How many employees do you have in your office?
Mr. Griffin: We have 10 people in our office.
Senator Bryden: It is the national part of the police unions?
Mr. Griffin: Police labour, yes.
Senator Bryden: Labour unions.
Mr. Griffin: I am not trying to be awkward, but there are some significant legal criteria that distinguish us from being unions, particularly in those provinces that I mentioned.
Senator Bryden: Distinguish you by what? The inability to strike, is that one of them?
Mr. Griffin: That can be one of them. It could be you are not allowed to affiliate with, say, the Canadian Labour Congress or other federations of labour. We do not organize under provincial labour statutes but under police legislation.
Senator Bryden: It is separate legislation.
Mr. Griffin: We would consider ourselves similar to other professional organizations such as doctors or university professors or teachers, others that generally have their own labour relations schemes.
Senator Bryden: Are you self-governing?
Mr. Griffin: No.
Senator Bryden: If a doctor does bad things, he goes before his council and can lose his licence.
In many ways I have read this brief before, except the names and paragraphs of the Criminal Code have changed, because this is a different group. I appreciate the fact that you are here trying to change the law in order to, in your opinion, be able to protect your membership more than the current situation allows.
The categorical statements being made are a little hard to accept. For example, on page 5 you state that, "Criminals convicted of the following offences would not be covered by Bill C-9." One of the examples that you have here is removing a child from Canada. Therefore for anyone who removes a child from Canada, it would not be possible for them to receive a conditional sentence.
Not long ago we had a situation where, by misunderstanding, mistake or whatever, a former Olympic champion took her daughter to the United States and a warrant was issued and she was brought back. I do not know if she was in handcuffs when she crossed the border. The matter was settled.
That situation appeared ultimately to be either a domestic misunderstanding or, at the very most, a domestic dispute. You are saying the court should not have had the opportunity to give that person a conditional sentence which would allow her to stay at home where her child lived, et cetera. Is that correct?
Mr. Griffin: I am not familiar with the specifics of that case; I do not even know the disposition. Our view is that if the essential elements of that offence are proven and the person is convicted, we do not believe that person should serve a conditional sentence.
Senator Bryden: No matter what the extenuating circumstances are? That is the law, and hang them high?
Mr. Griffin: That is not quite the case. Again, those are the types of issues that are often dealt with over a plea bargain. It comes down to the offence the person will be convicted of or prosecuted for.
We think a lot of leniency already exists. However, when you get to the point of conviction for those crimes, that should be the remedy; it should not include a conditional sentence.
Senator Bryden: Does it not concern you, because you have mentioned plea bargains many times, that if injustice is to result from the set of facts that I just summarized, what will happen is you will not get a conviction or you will get a conviction for mischief or something. If you have laws that are not enforceable by the court or will not be enforced by the court, you bring justice into disrepute.
I know that not many people adhere to it anymore, but it used to be the case that the administration of justice was compartmentalized in that the police protect, investigate, find the facts and lay charges.
The prosecution decides whether it is indictable or summary conviction, and deals with it at that level. The courts are left to do the trial, with a jury or not, and have the discretion to do the sentencing. From there it goes into the system of rehabilitation and so on, including some of the things that we have been talking about here today.
What appears to be happening now is that everybody wants to do everyone else's job. That is, you are here today, and as a citizen and representing a bunch of citizens, you can say whatever you wish. You bring whatever knowledge and experience you have to it. The fact is that the people who are trained to do their separate functions, when the separate functions are maintained within their group and done well, the system seems to work quite well.
However, the police, to use an example, are constantly second-guessing the prosecutor because he did not lay enough charges — I know that person is guilty, he just did not prosecute it properly — and is constantly critical of the court because the sentences are never tough enough for the police. I am a former provincial Attorney General and you cannot make the sentences tough enough to please the police.
Should there not be a little more water in our wine, including mine, so that if we did our own jobs well and we let the other folks who are trained for their jobs do their jobs really well, would we not be better served in the end? Could you comment on that?
Mr. Griffin: You raise a valid point in terms of the extraordinary cases where people fall into the justice system because of other circumstances, whether it be a family dispute or a dispute between two people over the ownership of property or other types of issues, somehow that tumbles into the justice system.
However, we are concerned with the career criminal, the repeat, chronic, violent offender who, time and time again, comes into the system through the revolving door and then back into the community. This individual could be the person who killed the four officers in Mayerthorpe or the brothers who shot the Constable Strongquill in Manitoba several years ago on Christmas Day. Whoever it is, it is our officers who invariably end up having to deal with these offenders when they go back into the community. What our members are telling us and instructing us to bring here is the concern that our system is not adequately responding and protecting our communities or police officers from these offenders.
That is the level of concern that prompts us and has prompted us for a decade to appeal to you and the members of the House of Commons to take a much more serious look at our system in its entirety. It is very difficult when we are dealing with it slice by slice.
Senator Andreychuk: We should correct the situation. You are asking for the bill to be amended to include proposed section 273.3. That is not just removing a child to another jurisdiction; it is removing that child to another jurisdiction for the purposes of a sexual offence.
Senator Jaffer: Trafficking.
Senator Andreychuk: It is not when a mother or a father takes a child over the border. You are not covering those cases.
Senator Bryden: I have just listened to this now. I do not have the quote in front of me.
Senator Andreychuk: My legal counsel has provided it to me, I have read it again, and it does not cover what we have always said are child abduction cases in marital disputes, et cetera. Those are very serious cases, but I do not think it is what you were covering. You were covering crossing borders for sexual purposes.
Senator Bryden: It would have been nice if it was in part of the presentation.
The Deputy Chairman: Now we have had that corrected and I do not think you need to answer, Mr. Griffin.
Senator Joyal: Mr. Griffin we heard before your testimony this morning, the representatives of the Canadian Centre for Justice Statistics. I do not know if you had the opportunity to see their presentation. They had a printed brief.
Mr. Griffin: Yes, I did.
Senator Joyal: I will refer to chart 17, as I am concerned about the overall judgment that is implied in the statistics that are given in that chart. The comment reads:
As we can see for these jurisdictions, the proportion of probationers who return to corrections within the 24 months was a little lower, 18 per cent, than for those serving conditional sentence, 23 per cent, but the proportions are quite similar.
The point I want to make is the proportion of probationers who return to corrections after finishing a sentence in custody was much higher, around 40 per cent. It is important to note that we are unable to take into account prior conviction histories when conducting this analysis.
There is a trend here, not to give absolute importance to the figure, and when I tried to understand the impact of the system the way it works in real terms, that is conditional sentencing and probation, seems to have a better rate of success than sentence custody. You are asking us for more custody. I would say if we were to increase the safety net of our streets and society we would have to pay more attention to the offenders than just sending them back to prison on a higher number of offences.
On page 4 of your submission, you say:
Canada's police officers are frustrated and have lost confidence in a system that sees violent offenders regularly returned to the streets. We need to restore meaningful consequences and deterrence in our justice system, which begins with stiffer sentences, real jail time and tougher parole eligibility and police policies for repeat and violent offenders.
It seems to me you make the easy assumption that the more people in prison, the safer the streets. It might be true in a short period of time, the time while the person is in prison, but it does not make the streets safer on the whole, if the person is freed after serving 10 years.
There was a story this week on the news about an offender who was found guilty of serious sexual assault, served his 10-year sentence, and was freed. The person refused any kind of treatment, psychological and psychiatric during the 10 years in prison.
Most of the people sentenced and served, will come back to society, especially those have who have been serving conditional sentences or probation with a much higher return of rehabilitation than those sent to custody. I agree that we must be concerned about the safety of our society. We need to think about this. When you make such an overwhelming affirmation, it concerns me. Everyone is concerned with the safety of our society but I believe we need boundaries. I wonder if you are helping us make a decision when you make such overwhelming judgments on the system without the proper qualification. It is not the whole system that does not work; there may be specific cases. To take one example and stretch it to the point where one tries to create an impression and push people in the direction of prisons, is not necessarily serving safety in our society.
Mr. Griffin: If I understood the previous presentation, what that statistic does not tell us is if the same people were sentenced to a term of imprisonment had been sentenced to conditional sentence whether or not they would have been higher or lower in their recidivism. If I understand the answer, it is because the profile of the offenders that are being sentenced to prison versus conditional sentencing may be different whether it is the number of prior convictions, the circumstances of the offence or what have you.
I do not think you can make the conclusion that, had those people been sentenced to conditional sentencing, they would have been more successful returning to the community.
We actually would support a more holistic approach to prevention. We agree we must invest in our social safety net to ensure that people make the right choices as young people, and do not get involved in crime or our criminal justice system.
However, once they do, there must be measures to hopefully deter them from continuing that pattern of behaviour. We do not believe, with the profile of the more serious, violent offenders, or sexual predators, that conditional sentencing is the appropriate response. I repeat that we want to ensure a sufficient period of custodial sentence that allows for proper intervention. We do not believe that the resources are sufficient in many communities to ensure that even if they are released into the community that there are sufficient probation or parole officers to supervise them.
There are many variables and factors. We are looking at a window of two years less a day for these sentences. If you look at the length of time that people are supervised once they have finished their sentence in prison, the reality is that many of those are probably being convicted and sentenced on dead time or very short periods of incarceration following their original sentence. Ultimately, there is very little if any rehabilitation in those types of sentences. We are not against rehabilitation, we are not against supervision in our communities, but we think it must reflect the profile of the types of offenders receiving these forms of sentences.
Our position is that if we look at the original intent of Bill C-41, or the original bill that brought forward conditional sentences, it was not those serious violent offenders intended to be caught in this scheme.
The Deputy Chairman: On page 9, you have a list of nine recommendations, seven of which are specific to sections of the code and two of them are more general.
Which of these recommendations were included in the original bill in the House of Commons?
Mr. Griffin: All of them.
The Deputy Chairman: With that, I thank you so much for your presentation to us. You have presented a point of view very clearly.
Senator Andreychuk: From our side, from the committee, I know we will continue on Bill C-9, but with the concurrence of our leadership we are trusting that we will go to clause-by-clause next week and we understand that witnesses have not been set for Thursday. I trust we can go to clause-by-clause on Bill S-4 and if we can, get the list on Bill C-9. How many more witnesses do we have so we can estimate the time that is needed?
Senator Joyal: On the list of witnesses, I understand that the l'Association québécoise des avocates et avocats de la défense have expressed an interest in testifying.
The Deputy Chairman: I believe they are coming Wednesday of next week.
Senator Joyal: I support their request. It is important. The Criminal Lawyers' Association have expressed an interest also. We should hear those two groups.
The Deputy Chairman: I believe they are already on the list for next Wednesday. That leaves us Thursday to do clause-by-clause on some bill if the committee wishes to.
Senator Joyal: The steering committee may have a meeting.
Senator Andreychuk: As you know, our member has had to be away. The steering committee acts on behalf of the full committee and I am bringing it up on the full committee that we are prepared and have been waiting to proceed to clause-by-clause consideration. We have given due consideration to all of the witnesses, including the last witness that there was an insistence to hear. There will be at least one week for reflection. We have even gone the same day or gone the next day, and I think that was a good rule that Senator Milne had that we hear witnesses one day and go to clause-by-clause the next day. I am suggesting that it would be timely to do it on Thursday, and I trust that there is some concurrence.
I could certainly sit in if there is any need for discussions on that on our side.
The Deputy Chairman: We should conclude as a committee that we would move to clause-by-clause next Thursday on Bill C-9 because we are finished with this witness list. Then we will do it as quickly as possible, as you wish, on Bill S-4.
Senator Andreychuk: Bill S-4 on Thursday.
The Deputy Chairman: Bill C-9 on Thursday.
Senator Andreychuk: I think we have finished Bill S-4 and I think it more appropriate to finish Bill S-4 on Thursday.
Senator Joyal: On that I understand that the government side seems to be ready to move.
Senator Andreychuk: We have been ready for some time.
Senator Joyal: I understand that and I will refrain from some comments that I would not like to make around this table. On our side, I will consult with the members and come back to you next Wednesday with the proper stand on moving on Bill S-4. For us there are only two options being either next Thursday or the following Wednesday. I would like to consult the members on our side on those two options.
Senator Andreychuk: As you recall, there had been an agreement for some time past to have a clause-by-clause, so I would still suggest that we do Bill S-4 on Thursday, and then move to Bill C-9. We will finish the witnesses on Bill C-9 on Wednesday.
The Deputy Chairman: On Wednesday we are here, so we could move to clause-by-clause, if we cannot get a consultation with the members on our side, we will do clause-by-clause on Bill C-9 on Thursday but will consult with our own members first.
The committee adjourned.