Mr. Rob Moore (Parliamentary Secretary to the Minister of Justice and Attorney General of Canada, CPC):
Mr. Speaker, I stand today to speak to Bill C-9, an act to eliminate the availability of conditional sentences for serious offenders.
Bill C-9 flows from the government's clear commitment to Canadians to ensure that house arrest is no longer available for those who commit serious or violent crimes. As stated in section 718 of the Criminal Code, the fundamental purpose of sentencing is “to contribute... to respect for the law and the maintenance of a just, peaceful and safe society”.
Conditional sentences were never intended for serious offences. The conditional sentence of imprisonment is currently available for offenders sentenced to a term of imprisonment of less than two years and for offences not punishable by a minimum term of imprisonment.
In order to grant a conditional sentence, the court must also be satisfied that sentencing the offender to serve time in the community is not inconsistent with the fundamental purpose of sentencing or with sentencing objectives, such as general deterrence, denunciation and separation of the offender from society. The court must also be satisfied that allowing the offender to serve his or her sentence in the community will not endanger the safety of the community.
However, in recent years we have witnessed far too many instances of improper use of this type of sentence. The public has had a great deal of concern about cases in which persons convicted of very serious offences have been permitted to serve their sentences in the community, often in the luxury of their own homes and with minimal safeguards to ensure compliance with the conditions of their sentence. Canadians find it hard to understand how such sentences comply with the fundamental purpose and principles of sentencing.
As a former justice minister said in debates about conditional sentencing on April 10, 1997:
||--all of us believe that anyone who commits a serious violent crime should be imprisoned as a penalty for that kind of crime.
Indeed, conditional sentences were never intended for use in cases of serious criminality.
As the Prime Minister stated on April 3, 2006, before the Canadian Professional Police Association:
|| And the safe streets and safe neighbourhoods that Canadians have come to expect as part of our way of life are threatened by rising levels of crime. Drug crime is on the rise. Gang crime is on the rise. And the homicide rate is on the rise as well.
That is exactly why during the last general election, this party, the Conservative Party, committed to end the availability of conditional sentences for those offenders convicted of serious crimes.
Bill C-9 would end conditional sentences for offences prosecuted by indictment and punishable by a maximum of 10 years or more, both under the Criminal Code and the Controlled Drugs and Substances Act. The implementation of this threshold will serve to capture the kinds of offences which deserve real punishment. It will also prohibit a number of serious property and administration of justice offences from being disposed of by way of conditional sentence.
In far too many cases, accused persons who have engaged in significant frauds, often involving breaches of trust, have walked out of court into relatively comfortable house arrest situations. These offenders would no longer have that option available to them.
The bill is based on the principle that conditional sentences ought to be used only in situations for which they were originally intended. This is for relatively minor cases, cases deserving of lenience and cases which do not offend the community's sense of justice.
Conditional sentences would no longer be available for sexual offences, such as sexual assault and aggravated sexual assault. Most sexual offences committed against children are already covered by mandatory minimum sentences because of the passage of Bill C-2 in the last Parliament. Conditional sentences would also not be available for other serious personal injury offences, such as impaired driving causing bodily harm or death and serious property and administration of justice offences, like robbery, arson and theft over $5,000.
No longer would sentences be available for very serious crimes, such as criminal negligence causing death, manslaughter, impaired driving causing death, aggravated assault, aggravated sexual assault, sexual assault with a weapon, kidnapping, attempted murder and torture. Until this bill is made law, each and every one of those heinous crimes could, according to our current law, result in a conditional sentence or house arrest.
When was house arrest ever appropriate in dealing with a person who uses a weapon in committing a sexual assault on another human being? Never, and it is time we recognized that.
This government has done more than simply recognize and talk about the problem, as our predecessors did. With the introduction of Bill C-9, we have taken steps to solve the problem once and for all. We call on all parties to join with us in working toward a system of justice that Canadians can believe in, a justice system that Canadians can have faith in because they know it is serving their best interests.
This bill will look at crime from the perspective of the victim: the man, woman or child who has suffered at the hands of another. For too long have we sacrificed the protection of victims in favour of lenient sentences for serious offenders. With the passage of Bill C-9, this trend will come to an end.
We propose to restructure the conditional sentence regime with the safety of Canadians top of mind, not as an afterthought. In the few circumstances where an offender has committed a serious criminal act and the court truly believes that greater leniency is appropriate, it can still achieve this end through a suspended sentence or probation. However, the government sees those responses as being appropriate in only a limited number of circumstances.
The government is also committed to addressing the problem of drugs in our community. Serious drug offenders, be they producers, traffickers or importers, are responsible for the destruction of the lives of thousands of citizens, their families and the communities in which we all live. This devastation must be met by real penalties, namely, the separation of individuals who prey on their fellow citizens from the rest of society. Those who manage the trade of hard drugs like cocaine and heroin have no place on our streets.
According to the latest data available from the Canadian Centre for Justice Statistics, between 1994 and 2004 the number of drug offences increased by a full 61%. In 2003-04, 34.6% of drug trafficking convictions resulted in a conditional sentence of imprisonment. That is simply not acceptable. That is why Bill C-9 would also eliminate the availability of conditional sentences for serious drug offenders.
The imposition of a conditional sentence for a serious drug offence would be inconsistent with the fundamental purpose, principles and objectives of sentencing. Conditional sentences do not provide reparations for the harm done to the community by the drug offender and do not adequately promote a sense of responsibility in such offenders. The imposition of conditional sentences in cases of serious drug crime is not proportional to the degree of responsibility of the offender and the seriousness of the offence.
It is worth mentioning that in 2003-04 conditional sentences represented approximately 5% of all sentences handed down in Canada, or a total of 15,493 sentences. In terms of the overall impact of Bill C-9, it is expected that approximately one-third of those would be affected by this sentencing reform.
The bill targets indictable offences. In the case of hybrid offences, that is, those which can be prosecuted by way of summary conviction or by indictment, conditional sentences will remain an option where the Crown chooses to proceed by way of summary conviction. Police and prosecutors will have to exercise their discretion to ensure that relatively minor offences are prosecuted appropriately.
These are changes we have heard being demanded by provincial attorneys general, mayors, victims' groups and law enforcement authorities from across Canada. These are the people on the front lines of crime control. They have been clear in their calls for common sense justice and the need to punish serious crime with penalties that are more severe than house arrest.
We acknowledge concerns that Bill C-9 may increase correctional costs. These cost increases will vary, depending on the percentage of offenders who receive jail sentences and the average length of those sentences. As the Minister of Justice explained during his news conference on May 4 following the tabling of the bill, the costs related to Bill C-9 could be covered by unallocated funds given to the provinces as a result of equalization payments.
It is the belief of this government that a properly structured conditional sentence with tailored conditions is an appropriate sentencing tool in some cases. Conditional sentences are not, however, an appropriate tool in the most serious cases.
This sentencing reform does not purport to modify or change the fundamental purpose or principles of sentencing contained in the Criminal Code. However, with respect to serious matters, it implicitly requires courts to focus principally on the objectives of denunciation, general deterrence and incapacitation.
These reforms would help keep our streets safe by ending the use of conditional sentences, including house arrest, for serious offences. The reforms contained in this bill would ensure a cautious and more appropriate use of conditional sentences, reserving them for the less serious offences that pose a low risk to community safety.
Not only would this legislation make practical, substantive amendments to the Criminal Code, it would improve public confidence in the use of conditional sentences and sentencing generally, a public confidence that we have seen lost recently. Justice will be done and it will be seen to be done. Using conditional sentences only in appropriate cases not only will strengthen public confidence in the administration of justice, but it will serve as a warning to those who engage in serious crime that if they offend they will be dealt with firmly by Canada's criminal justice system.
Hon. Sue Barnes (London West, Lib.):
Mr. Speaker, I am pleased to participate in this first debate on Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment). To put this debate in context, I will state the present situation in the Criminal Code so that people understand what we are talking about.
Current section 742.1 of the Criminal Code states:
|| Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
||(a) imposes a sentence of imprisonment of less than two years, and
||(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
|| the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.
Sentencing of an offender can sometimes create controversy in the wider community, especially if the main or only source of information is through media reports of crimes. Conditional sentencing became available in 1996 and we have now had roughly nine years of experience to draw upon in our assessments.
Generally speaking, the existing prerequisites in the Criminal Code section which were enacted should screen out the most serious cases being dealt with by means of a conditional sentence. There has been case law developed which has helped in guiding the use of conditional sentences. There are both punitive and rehabilitative objectives where conditions of house arrest and/or curfew are utilized.
The Supreme Court of Canada stated clearly in R. v. Proulx that there should be no judicial presumption for or against the use of conditional sentences for any category of offences. A conditional sentence need not be of the same length as a sentence of incarceration. I am told by counsels that invariably when someone receives a conditional sentence it is a longer period. This is real punishment served outside of a costly prison system. Now, in some cases where it is desired, offenders' movements are even tracked by electronic bracelets. This allows people to continue their employment while under house arrest, have a curfew, take counselling or provide for their children in the home. There are serious consequences when the wrong people are supervised inside a prison system. It has consequential effects on the lives of those most connected to those individuals.
In recent years it has been raised in the public discourse and with the federal, provincial and territorial ministers of justice, that while conditional sentences are an appropriate tool, in many cases there needs to be a definition of appropriate limits to the use of conditional sentences, particularly in respect of more serious and violent offences.
In October 2005 before the Liberal government was defeated, Bill C-70 had been introduced by the former minister of justice. I correct the information given by the parliamentary secretary that nobody was listened to. Actually, there was a bill tabled. Because the government was defeated, Bill C-70 was never debated in the House and it died on the order paper when the election was called. Bill C-70 took a different approach from that in Bill C-9 which we are debating today.
By way of comparison, former Bill C-70 was drafted to amend the Criminal Code to create a presumption that the courts shall not make a conditional sentence order when sentencing offenders convicted of serious personal injury offences as defined by section 752 of the Criminal Code, terrorism offences and criminal organization offences, or any other offence whose nature and circumstances are such that they require the paramount sentencing objective of the court to be the expression of society's denunciation. There were other technical provisions in the former bill which are not covered in the legislation presented by the new government.
I wanted to put the debate in context and make that comparison because the former bill was in the same subject area. It did have a presumptive focus as opposed to a mandatory focus, and it was in a narrower field.
I want to bring out some other issues that are more procedural in nature. They are important for people to understand.
The Liberal government usually sent bills to committee after first reading. This provided more scope for amendments at committee. People who work on the bills in committee may not get to debate them in the House. At committee people base their knowledge on the expert opinions of witnesses.
We have been advised by the Conservative government that Bill C-9 is to be voted on at second reading and then sent to committee. This is the prerogative of the government. Let us be clear that the former approach provided for a much more collaborative effort by all those concerned, and usually a more effective result.
After second reading, amendments to the bill can still be made at committee and in the House again at report stage. Subsequent votes can change the legislation by reducing the contents of the bill via amendments, if those amendments are in the same subject area as the principle of the bill.
The situation here is that in the realm of conditional sentencing, the government has put forward a bill that is very wide in scope. There is still the power with the parliamentarians working in the committee, and after listening to the experts in the field, to narrow the scope of the bill.
I believe that given our former bill on the same subject and the communiqué from the meeting of the federal, provincial and territorial ministers of justice, this is a valid area for some change in the law. There may be some differing opinions. I would be happy to receive those opinions. Those who are most knowledgeable should submit the names of their organizations to the clerk of the justice committee so that we can hear the voices of those for and those against the bill.
It is time to do evidence based law. We should not play politics with the Criminal Code of Canada. It is too important. There is no one party that is the law and order party. We all want safe communities. We all want justice to be fair, but we also want it to be effective.
Bill C-9 amends section 742.1 of the Criminal Code to prohibit the use of conditional sentences for offences under the Criminal Code and the Controlled Drugs and Substances Act and other federal statutes punishable by a maximum sentence of 10 years or more for those that are prosecuted by indictment. It seems to be a simple, and I stress simple, way to go about doing business.
To give context to this particular legislative approach, if this had been in effect in 2003-04, approximately one-third of those who received a conditional sentence would not have been eligible. The judge's discretion would have been removed to provide this tool. We would have been paying for the incarceration of approximately 5,480 additional people in this land.
Some offences which fall under the scope of this bill are hybrid in nature. This means that the crown can go either by indictment, or if it is a lesser offence, the crown can choose the summary aspect of the bill and go lower. My personal concern is that there will be those cases that fall in between where the conditional sentence was the most appropriate sentencing tool because it would have been a more complete sentence for reasons I will explain later.
In fairness, it should also be noted that the courts would still have the option to use probation orders for the offences barred from receiving a conditional sentence of imprisonment where it was felt that the circumstances warranted it. This in reality still limits the sentencing judge's options.
Think of the case of a welfare fraud parent, who I am told by defence counsel is usually a woman. She would more likely end up in jail where before, a conditional sentence would often be used. The situation would likely escalate into child welfare and social services becoming involved because the children has been left without a parent to support and care for them.
I think we have to understand the reality of what could potentially occur if the non-violent crimes are included within the scope of this bill. A judge already has to think about whether there is a safety issue for the community. There is already a process for a judge to go through in imposing the conditional sentences.
These are the people who do not read the newspapers about the cases. These are the people who have to make decisions in that courtroom. They listen to the evidence that is brought forth properly, listen to the parties, both the prosecution and the defence, hear all the information, hear all the facts of the case, and then use their judgment. They are judges. We pay them to judge. We do not give them strict guidelines, so they have no authority to go outside of the strictness of controls.
Obviously, the government should justify and explain to Canadians the reasons for including so many more offences that would not qualify for the conditional sentence option. The government seems to be prepared to fill more prison cells and take this sentencing option from the judge who hears the case, as I have said, and the specific facts and circumstances.
The question to be answered is, which offences should be included in this bill and get passed, and which should be excluded, and let us hear the reasons why and why not? We have not heard a lot of explanations. We have heard a lot of rhetoric, but we have not heard any explanation or information or evidence-based material other than that this has been requested by some associations. A lot of people want a lot of things. They generally do not get it unless they can prove there is a real need and there are good reasons for this approach over some other approach.
Obviously, and I give the government credit for this, it has backed down somewhat by not abolishing conditional sentencing completely and the government, therefore, has acknowledged that there is a role for conditional sentences in the Canadian legal system.
In almost all the cases, the conditional sentence orders contain restrictive conditions of house arrest and/or curfew, often both; often community service; mandatory treatment and counselling; and often other conditions are tailored into the sentence and can be very effective in preventing repeat offences while still having the person exist safely inside the community with the deterrence of having the house arrest, et cetera. It is not about being hard or soft on crime. It is about a sense of effective, just sentencing in Canada for those who go outside our law.
I am told that all provinces and territories have expressed some concerns about the costs that they would incur if this bill goes through as is in hiring additional prosecutors, court and correctional staff, and building new prisons.
We saw a budget that put money forward for, effectively, more prison cells but very little detail. We do not have that information. We hear of the generalities, but I know that when I and many of my colleagues vote, we will need more information before we cast such an important vote on such important changes.
The government has not properly, or effectively, outlined its plans on what assistance, if any, would be provided to those jurisdictions affected. Obviously we know there would be increased costs. Conditional sentences currently make up approximately 5% of all Criminal Code sentences, so conditional sentencing is not a wide open, used in every case scenario.
The most frequently imposed sentence is probation which, we are told by justice officials, is approximately 46%. I did some research because I thought that number was a little high on its own. Then I understood from others that probation is usually in addition to most jail sentences under two years. Probation is part of another sentence; for example, jail plus probation, fines plus probation, or probation as part of any intermittent sentence, such as somebody who works outside the house and goes into an imprisonment situation on weekends. Even on conditional sentences, probation is often added at the end of the conditional sentence term. It is a good combination type of sanction that is widely used.
Before we go adjusting the discretionary tools that our justices and judges across this country have to work with to our best result, we have to understand the tools they have and not just say that this is bad or that this should not be used. We have to understand what we are talking about before we change it.
The purposes of the principles of sentencing are contained in section 718 of the Criminal Code which came into effect with the last government in 1995. This section is not amended in this bill and that is important. This is something positive that the government has not seen fit in changing this section and to leave this as is because this section sets out the fundamental purposes for sentencing, the objectives and what sentences should attempt to achieve.
In brief, for those who have never sat down with the Criminal Code and read through the section, these objectives are denunciation, general and specific deterrences from the crime, separation of offenders from society with a caveat where necessary, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victim or victims and to the community.
When Parliament adopted this section of the Criminal Code, it mandated the expanded uses of restorative principles in sentencing because of the general failure of incarceration to rehabilitate offenders and to reintegrate them into society. Members should remember that no matter how long we make the sentence, people still come out into the community and at the end of their sentence we want them to be better functioning, so that means they have to have programming and other training inside the system, and we need to be realistic.
Section 718.1 states that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Other sentencing principles are contained in section 718.2 and there are other specific sections on sentencing relating to children. The case law continues to help enunciate and guide the courts in their decision making.
A change in section 742 will obviously have impacts in a number of areas. There will be costs, processing, and personnel impacts. We will need to hear from witnesses who are knowledgeable about these impacts, those impacts that are intended by the government and perhaps more importantly those which are unintended on these proposed reforms.
Will there be a need for more legal aid? I have met with legal aid representatives in my riding and know that to get legal aid in Ontario there has to be a substantial likelihood of incarceration. Will the justice system itself be able to accept this greater load of trials and incarceration?
Most of the debate and inquiries for the government will be the inclusion of offences that although serious are non-violent. No full explanation has been provided for these additions. The bill appears to use the equivalent of a legislative sledge hammer where perhaps what is required is the equivalent of a legislative scalpel: fine tuning and amending where necessary and where effective.
Our party wants proper evidence brought before committee. We do not vote for blind ideology but rather for real improvement. We will await the evidence which can be brought forward to understand the need, the relevance, the impact, the cost, and effect of these changes in the area of conditional sentences.
We do not accept the bill as currently constructed, but do see merit in further work and amendments in this area. We look forward to constructive work ahead with time to objectively listen to Canadians, the stakeholders and the experts in this specialized field. We hope and trust that all members of the justice committee of the House will work in this constructive manner.
The government should tell us why the sections such as forgery, drawing documents without authority, are captured in the net. It is much easier to understand why assault offences causing bodily harm or with a concealed weapon will be in the category. We also need to understand whether these changes have a different effect in different populations where the government has been trying to embrace a restorative justice principle.
Flexibility is being curtailed here. Let us hear the government's justification for these broad changes. We must be careful to ensure that the changes do not conflict with the sentencing principles articulated clearly in the Criminal Code. Section 718 states:
|| The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives.
I look forward to it. I believe we can have some constructive dialogue and work on the bill. The provisions of the bill can be narrowed if the evidence we hear indicates that. We intend to listen and to work with other parties to create some changes that should be beneficial and constructive in looking at conditional sentences.
We do not wish to overreach and create unnecessary hardship and expense where not warranted. We do not believe as a party that simple black and white messaging to the public takes precedence over proper, nuanced legislative initiatives.
Hon. Sue Barnes:
Mr. Speaker, I appreciate the comment and I too like to make my decisions based on evidence.
Things are not black and white. We are seeing a government that is focusing on giving simple messages as opposed to looking at the detailed study. Let us hear from those people who have done the studies, such as the academics, if there is research work. Let us take a look.
Nine years is not a long time. My party agreed there was some tweaking to be done, but I would like to hear from some of those jurisdictions that will be affected, the ones who are asking for it and certainly the ones who are concerned about it. I know the Minister of Justice in Saskatchewan has made some public musings about how this may affect certain populations within his province. There are concerns, but they are not even voiced as concerns. It is just a lack of information about how this will impact on costs.
We can talk to people. There are people who are coming to me from the victims' groups, from the families of the offenders, and from the people who have dealings in the prisons as their business, the societies, whether for men or women, that regularly interact with the prison population and have a good understanding of it. We need to hear from them.
Personally, I would like to know whether or not the Minister of Justice gave this bill for consultation before he tabled it, showed it to the ministers, or whether he relied on the past territorial justice ministers meetings and conversations. I know he said that he had conversations with the various ministers of justice after the fact. I just wanted to know whether this bill was actually run by them because I think they would be surprised at the severity of what is contained here.
It is going to take a lot of time to carefully go through the sections of the Criminal Code offences that will be affected by this bill, as well as the affected sections in the Controlled Drugs and Substances Act. It is work on which I trust the party opposite, the government, will work together with the parties on this side of the House and opposition parties. In fairness to the complexity of the bill and the impact it is going to have, the bill itself is an easy read when it says anything over 10 years. That is not complex. What is complex is the impact and how it will affect all of our systems.
We have judicial rulings, cases like Askov, where if things are bogged down too much and there is a delay in bringing something before the courts, it is going to get thrown out because of that delay. We cannot just affect one situation and not realize it has impacts.
I am absolutely convinced we do not have enough money in the criminal legal aid system right now. There is no mention of it, nothing was allocated, and when I asked the justice minister about criminal legal aid at committee when he appeared before us, the response was that we were having discussions. We cannot change this law without having some things in place so people can cope with it because then we are going to have real problems.
My concern is that on some very serious things, prosecutors will opt for going by way of summary conviction, where if there are some options of sentencing in the conditional sentencing, such as in some fraud situations or cattle rustling or whatever particular section of the code is included, there might be a better way.
We are not going to play politics. We are going to work with you if you will work with us. If you will not work with us, we will work with the other opposition parties, but I do not think this bill will pass in its present form.
Mr. Marc Lemay (Abitibi—Témiscamingue, BQ):
Mr. Speaker, I hope that my colleague from London West will stay with us just a few moments more. I am pleased to speak in this House and I would like my colleague to know that over the past 26 years, I have been a legal aid lawyer as well as defence counsel in criminal law for the last 10 years. As a criminal lawyer, I regularly argued cases in court, trying to convince the court to accept my arguments. I will attempt the same here, Mr. Speaker. If I slip up, as I probably will, and call you “Your Honour”, please forgive me. I hope that my argument—and I believe it will indeed be an argument—will enable us to address this very important debate in the House today in an orderly manner, without the interference of court sanctions.
The Bloc Québécois finds it difficult to vote in favour of this bill. We will therefore vote against it, for a number of reasons I will explain. This is a very difficult bill that reduces the number of options available to the court when sentencing a person.
I have with me the bible that I kept with me every day I argued a case in court a while ago. I keep up to date on what is going on in criminal law, so I hope you will permit me to read section 718 of the Criminal Code. This section is clear about the objectives of sentencing, which are:
||(a) to denounce unlawful conduct;
||(b) to deter the offender and other persons from committing offences;
||(c) to separate offenders from society, where necessary;
||(d) to assist in rehabilitating offenders;
||(e) to provide reparations for harmcom done to victims or to the munity; and
||(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
The objectives and principles that a judge must be guided by during sentencing are clear. The judge must individualize the sentence. The individual that appears before him must receive a sentence adapted to the crime committed. This is not what Bill C-9 proposes. The bill would increase the length of imprisonment for dozens, possibly around one hundred new offences. One example comes immediately to mind. Someone charged with impaired driving causing bodily harm can be sentenced to a maximum of 10 years. Under Bill C-9, a prison sentence would automatically be imposed. This is unacceptable.
If my colleagues across the floor listen to my entire speech--and the brilliant interpretation being provided--they will understand that such a sentence is unacceptable for several reasons. First of all, in a number of major decisions, the Supreme Court has stated that the primary principle that must apply during sentencing is that of individualized sentencing. That would be lost with this bill. In fact, Bill C-9 would put an end to individualized sentencing.
I would go even further. Not long ago, the Supreme Court had to rule on conditional sentences. If the members across from me are listening carefully, they will recognize a decision handed down by the Supreme Court in 2000. It was a landmark decision that has been continuously applied by the courts ever since. It very clearly explains the criteria that must guide the court when it is about to impose a conditional sentence.
It should be noted that conditional sentencing is neither a policy nor an obligation. It is an additional power the court has when handing down a sentence. It is part of the wide range of sentencing possibilities the court has when it is judging an individual or handing down a ruling that will have a clear impact on an individual's life, family and associates.
The members opposite should listen carefully to what I am about to say. Everyone knows that a Supreme Court ruling is quite serious.
In R v. Proulx, the court said that:
||—the provisions on conditional sentencing were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. A conditional sentence should be distinguished from probationary measures.
Probationary measures are sentencing measures with probation.
|| Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects.
That is the intention.
||—conditional sentences should generally include punitive restriction of the offender's liberty. Condition such as house arrest should be the norm, not the exception.
Having been a litigator and defended clients in all sorts of cases, I can assure you that a sentence of detention in one's own place of residence is quite often more restrictive than a sentence of detention in a penitentiary or a provincial prison. For example, when an individual receives a conditional sentence, he generally receives calls at all hours of the day and night to check whether he is home. I will come back to that in a few moments. What is more, he is monitored regularly by the court.
That is what the Supreme Court had to say about it, again in Proulx, a very important case that my colleagues opposite and the hon. Minister of Justice have read. The Minister of Justice was Manitoba's Attorney General. I would be glad to discuss this case with the hon. Minister of Justice in this House. We talked about it last year, the hon. Minister of Justice and I, when we were both on the justice committee.
The Proulx decision states:
||—the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
The Court must ask itself this question.
||—a conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed.
So said the ruling by the honourable justices of the Supreme Court. Generally, what this means—I have experienced this myself and my colleague the hon. Minister of Justice may perhaps also confirm it since this occurred in the province of Manitoba—is that the court first asks itself whether or not the individual is eligible. If a sentence of incarceration is required, then the answer is yes. The court then decides that the offence committed involves and requires incarceration. Then it asks itself if the incarceration must be served in a penal institution or if the individual may serve the sentence at home or elsewhere. It is at that point that it must pose the question.
Usually, the judge considers that the offence deserves a sentence of three years or 30 months; however, if he wishes the offender or the accused to serve the sentence in the community, he lowers it to two years less a day.
The Supreme Court ruling states, and I quote, “Two factors should be taken into account: (1) the risk of the offender re-offending;” This first factor bears the number (1). It is followed by factor number (2). I have never seen (2) precede (1). Thus, the first question that the court asks itself is whether or not there is a risk of the accused re-offending.
I continue to quote, “(2) the gravity of the damage that could ensue in the event of re-offence”. A consideration of the risk posed by the offender should include the risk of any criminal activity, and not be limited solely to the risk of physical or psychological harm to individuals
The Supreme Court went so far as to state and repeat—and I will repeat here in this chamber— that there is an inviolable principle in our criminal law and that principle is the individualization of sentences.
This is not what the hon. Minister of Justice has in mind in introducing Bill C-9. I took a quick look at the crimes covered by this bill. There are about 100 in total, and all are punishable by 10 years in prison.
The case that comes to mind and the one I had argued, as I mentioned earlier, was impaired driving causing bodily harm. Under this bill, the judge will have no choice but to impose a sentence of imprisonment of more than two years, and that is extremely dangerous.
The Proulx decision is very important. I read it through, and I would again invite the hon. Minister of Justice to carefully reread this important decision. Here is another excerpt from the decision:
|| The [conditional] sentence imposed by a trial judge is entitled to considerable deference from appellate courts...Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit.
Today, we are faced with an extremely important societal debate. The debate over Bill C-9 is a societal debate. This bill will be a catalogue of prison sentences. The crimes will be in the catalogue and will be punished accordingly. This is not what the Supreme Court intended. The Supreme Court, and society in general, want individualized sentences that take into account the individual's character, the risk of reoffending and the seriousness of the crime.
When these distinctions are made, then we must look at how the court will punish the individual.
Clearly, Bill C-9 is a move toward punitive justice, not rehabilitative justice. Today, sentences must be individualized. The Bloc Québécois believes in rehabilitative sentences much more than repressive sentences. Bill C-9 will create repressive sentences.
It is true that crime has increased in some major cities.
For the first time, however, since the introduction of conditional prison sentences in 1996, Statistics Canada did a study in 2003-2004, which showed that the total number of offenders liable to a new conditional sentence order had decreased, falling from 19,200 to 18,900, a decline of about 2%. Still, we must pay attention. In spite of this decrease from the previous year, the same study reveals that conditional sentences have a major effect on the rate of new detentions, which has decreased by 13% since the introduction of conditional sentences. As a result of this measure, some 55,000 fewer offenders were sent to prison.
With all due respect for the hon. Minister of Justice in this House, he cannot contradict this. Last year, he sat on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness as the Conservative opposition critic. When he tried to table this same bill, I asked him to provide us with figures showing that the crime rate had increased since conditional sentences began to be given. It was not so; the number of offenders had decreased.
I will go a bit further. This is a rather special sentence. The administration of these sentences, especially conditional ones, falls within provincial jurisdiction because they are sentences of two years less a day. So what will happen if this bill comes into effect? There will be an increase in prison sentences. And who handles sentences of two years less a day, to use the legal jargon? It is the provinces. It is obvious then that passing this bill will entail additional costs, an increase in the financial burden of the provinces. There are two problems. One, sentences are no longer individualized. Two, we switch from the possibility of rehabilitation to repression. Thus, we increase the financial burden of the provinces, which will have to deal with these prison sentences.
I will add something else. Bill C-9 implies the building of more prisons. It seems, however, that on an individual basis (the figures confirm this) it is much more costly to keep offenders in prison than to keep them under supervision in the community. We now have figures to support this. In 2002-03, the average annual cost for a prisoner in a provincial institution was $51,450, compared to $1,792 for supervision of an offender in the community.
I would still have lots to say, but I see that I have less than a minute left. So I will say this. We must at all costs avoid having this bill send the wrong signal. I understand the intention of the Minister of Justice to send a clear signal. With all due respect, I nevertheless think that this is not the right message.
We could send guidelines to the judges. Perhaps not enough prison sentences are given for different crimes. The appeal courts are there, however, to rectify what might be a “bad” decision or a decision that does not comply with the criteria of the Supreme Court.
The evidence may be seen in many cases. Mr. Brault has just been sentenced, and we have just seen that there are other sentences. In fact, the Court of Appeal of Quebec has just declared itself in favour of the fulfillment of prison sentences, when such sentences should have been handed down in the first instance.
Let our courts and judges do their job. They are quite capable. Let us give them some clearer guidelines, though.
Mr. Joe Comartin (Windsor—Tecumseh, NDP):
Mr. Speaker, I rise today to speak to Bill C-9, which has been referred to as the amendment to conditional sentencing. It is important to appreciate some of the historical background behind this and why attention has been paid to this form of sentencing.
The original provision for conditional sentencing is relatively new to our criminal justice system, being only a little over nine years old. At the time it was introduced, it was a clear attempt on the part of the government of the day to reduce our prison population so individuals were not incarcerated for crimes that could have been better dealt with through rehabilitation, expression of denunciation by the state and justice for the victims. This would justify the use of conditional sentences as opposed to incarceration.
Conditional sentencing was used fairly slowly for the first few years. By the end of 2004, conditional sentences were being used across the land approximately 15,500 times. That meant fewer people were being incarcerated. The provision of the section is such that it is only used, whether it is now or subsequent to the proposed amendment, when the judge decides that the person in all other circumstances will be sent to prison. In these circumstances it would be better, for the reasons I have already mentioned, for the person to remain in restricted custody, but outside of full incarceration.
It is important to appreciate what has happened. Particularly in the last few years we have read on the front pages of our newspapers or heard on the national news cases involving criminals who were convicted of serious, violent crimes but were given conditional sentences. I do not know how many times this has occurred nor does the government. Some cases received substantial media notoriety. When these were investigated, extraneous circumstances justified the use of conditional sentences. However, this flew in the face of the original intent of conditional sentences, which were for non-violent crimes, not those that resulted in serious injury to victims.
A consensus built within the legal community and the legislators in the House that this issue had to be revisited. We had to address the point of when it was appropriate to use conditional sentences. If there were cases when it was inappropriate to use conditional sentences, we had to see if amendments could made to the section that would prohibit judges from using them.
The former government brought forward a bill toward the end of the last Parliament that attempted to address the issue. It reflected, to some degree, some consensus that had been built by all four parties. It did not get to second reading and died after the election was called.
This bill has taken a significantly different and more punitive approach to the issue of conditional sentences. The most important part is to look at the provisions of the section. It basically states that conditional sentences would be unable to be used in cases of a crime that had maximum penalties of 10 years or more.
We have to appreciate as well the impact of the amendment. If it were to go through, and I am cautiously optimistic that it will not in its present form, all these sentences would be served in provincial jails, not in the federal system. One of the other provisions already in the section is that it is not used unless the sentence to be imposed is two years less a day. If it is two years less a day, the person would spend the time in a provincial jail. All the individuals sentenced under this would be individuals who would normally end up in our provincial jails.
It is quite a lengthy list of where it would be prohibited to use this section. Forty-two sections of the Criminal Code have maximum terms of 10 years or more so conditional sentences could no longer be used. The difficulty I and my party have with this is a number of these sections are for crimes that are not of a violent nature, where an individual victim would not be assaulted or injured in a minor or serious way. We would classify approximately 20 sections as property offences, some quite minor. We sometimes wonder why there is even the possibility that somebody would get 10 years or more for that kind of an offence.
The first on the list is property theft over $5,000. It does not take many pieces of electronic equipment stolen from a house or a retail store to amount to over $5,000. It could be a first offence, but a conditional sentence would not be considered for the individual.
I will go through them. We have cattle theft, theft or forgery of credit cards, unauthorized use of a computer, breaking and enter with intent to commit an indictable offence, being unlawfully in a dwelling house, house breaking and possession of instruments, disguise with intent and possession of stolen property over $5,000, theft from mail, bringing into Canada property obtained by crime, false pretense of property over $5,000, obtained credit by false pretense, forgery, utter forged documents, fraud over $5,000 where a testamentary document is altered, false prospectus, personation with intent, wilful mischief over $5,000, wilful mischief of other property and arson for fraudulent purposes.
There are about 20 offences, all of them property crime. We question why some would even have a maximum penalty of 10 years. Nobody ever gets that kind of a penalty for those kinds of crimes, but they are all included in Bill C-9. The effect of the bill is to exclude anybody convicted of one of those offences from being treated by way of a conditional sentence.
When I saw the bill, my initial reaction was this. Our Crown attorneys will take a look at it and will immediately make deals with defence counsel. Of the 15,500 cases each year, somewhere around 5,300 to 5,400, or one-third, will be excluded. The statistics I am giving are from the Department of Justice. I am not making these up.
One thing that could happen is that crown attorneys would plea bargain deals with defence counsel and some criminals would still get through in other ways. The parliamentary secretary mentioned that one way would be to allow for suspended sentences. I do not see that as a good alternative to dealing with this type of crime.
With suspended sentences, a judge has no ability to put restrictions on the person convicted. The judge basically decides not to proceed with a conviction and no penalties but if the person commits another crime and comes back before the court the judge can sentence the individual. That is how suspended sentences work. It is not a good alternative in terms of rehabilitation or an expression of denunciation from the state. It is not a good alternative to conditional sentences for that kind of crime.
However, we will get some of them out. I am guessing that at least 1,000 or so a year will be taken care of by some other kind of plea bargain but that still leaves 4,000-plus cases.
When officials from the Department of Justice came to me for a briefing I asked them what it would cost and, more important, what it would cost the provinces because all these sentences would be served at the provincial level. It costs about $125 a day to keep somebody incarcerated in our provincial system. It varies from province to province but that is a mean average. If we were to do the math, the operational cost for each convict who goes into the system would be in the range of $200 million to $250 million per day. All provinces will need to build additional cells to provide sufficient capacity to handle these prisoners.
It was interesting to hear the Minister of Public Safety say publicly that the money has not been specifically earmarked but that it has been set aside in the budget. This reflects the Conservatives' lack of understanding of what they are really getting themselves into. That money will be more than used when we get to the next bill, Bill C-10, on mandatory minimum sentences.
The Minister of Public Safety figures that the government will need about $250 million to $300 million. I think those were the figures he used. However that will be used up when we get to Bill C-10 and the number of additional people we will put into jails for longer periods of time at the federal level. Therefore, there really is no money in the budget. If the government is serious about getting both Bill C-9 and Bill C-10 through, there is no money for the provinces. All of that money, and a lot more quite frankly, will get used up in the federal system if Bill C-10, the mandatory minimums, gets through as it is presently drafted. I assume we will get to that bill some time later in the week.
The government has slapped this bill together in a slipshod manner more out of ideology and philosophy of how it would like to see society function than any reality of how it does. It brought forward this section and could not care less about what it will cost the provinces. After talking with some of the attorneys general, I know there has been no specific discussion of how much this will cost and no assurances or guarantees from the government that it will fund it. What it is doing is downloading this cost of its ideology onto the provinces.
We are not talking peanuts. We are talking operational dollars of $200 million to $250 million a year if this goes through and substantial additional capital. The best estimate I can give, since the government does not have one, is somewhere between $200 million and $500 million for the additional prison cells that will need to be built to accommodate the additional 4,000 to 4,500 prisoners at the provincial level.
The other negative byproduct of this approach to criminal justice by the government is that conditional sentences have been used in a significantly higher percentage among first nation peoples than it has for criminals in other sectors of society. I will give one example.
In Saskatchewan, where conditional sentencing has been used, and arguably more extensively than any place except the province of Quebec on a per capita basis, 64% of the conditional sentences are for individuals who come from the first nations, Métis and Inuit population.
A number of years ago the province of Saskatchewan, probably around the same time as the conditional sentences were working their way through, made the conscious decision to reduce its prison population and to specifically target first nations because first nations population members make up almost 80% of the prison population at the provincial level in Saskatchewan. It has had a significant impact in Saskatchewan of reducing that population, of keeping them in society, of keeping them in their communities and of rehabilitating them at a much more effective rate.
We all know, and no one in the House should delude themselves otherwise, that the longer someone is in prison the higher the rate of recidivism and the more people are kept our of prison the lower the rate of recidivism.
Saskatchewan is saying that it has a major problem. Is the province able to get around it? If it can, why are we bothering with this bill? The real possibility is that Saskatchewan will not plea bargain a little bit. It may plea bargain a lot.
We need to appreciate that the alternatives to probation and suspended sentences are nowhere near as effective as the tools we get from conditional sentencing. The judges have a much broader scope of the conditions that they can impose on the convicted criminal under this section than the authorities have under the probation provision or the judges have if they were to impose a suspended sentence.
We are doing one of two things here. We will either end up with more people in our provincial prisons, which means the provinces will carry that bill, and, as a result, our first nations people in particular will be targeted, or the same number will be kept out but under suspended sentence or maybe probation where they may receive a short sentence period and then a long probation period. However the tools we will now have under the suspended sentence provision or probation will be much less effective than under a conditional sentence.
We need to understand the history here. Judges had begun to use the conditional sentencing concept and in a number of cases they imposed conditions. We heard the Bloc member say that one of the conditions is the person could not consume alcohol in his or her own home. A number of provisions, such as that one, were challenged under the charter and the higher courts ruled that a judge did not have the authority because it was not provided for in the Criminal Code or other legislation.
What happened is that this provision was put in. The judges then said that they now had the tools and, in cooperation with the prosecutors, the police, the defence counsels and the criminal himself or herself, that they would develop a specific set of conditions applicable to that person to control his or her behaviour and make a serious attempt at rehabilitation.
One of the concerns I have with the government jumping ahead as it is right now is that there are no studies. I have checked throughout the private sector academia and there are no good studies on just how effective the conditional sentences have been. There is a fair amount of anecdotal that they have been and we know we have substantially reduced our prison population at the provincial level. It has been effective from that perspective which is one of the major things it was to do. However, on the rate of recidivism we do not have that and we should have that before we proceed with this legislation.
I believe all parties recognize that there are certain cases of serious violent crimes for which conditional sentences should not be available. My belief is that when the bill comes out of committee we will see that section amended to the degree where at least that will be covered. I believe the concerns we have heard from society will be addressed but we will not have to go any further and eliminate a tool that has been a very effective one for our judges and our prosecutors.
Hon. Vic Toews (Minister of Justice and Attorney General of Canada, CPC):
Mr. Speaker, it is a pleasure today to speak to the provisions of Bill C-9, an act to amend the Criminal Code (conditional sentence of imprisonment).
The bill implements one of the centrepieces of the criminal justice platform that the government presented to Canadians in the last election. Since the previous government made conditional sentences available as a sentencing option almost 10 years ago, the public has grown increasingly concerned about the way they have been used. In particular, Canadians have strong reservations about serious violent offenders receiving this form of penalty, and indeed, in repeat property offenders receiving this type of penalty.
I had the occasion to speak to the Vancouver city police last week. An individual with 125 convictions is still eligible for conditional sentencing. We see repeat offenders receiving conditional sentences over and over again.
The previous government assured us that this would not occur. Indeed in October 2005 my predecessor stated that conditional sentencing would be used for the purposes for which it was specifically intended and it was not to be used for the purposes of providing house arrest or any other penalty of that kind where a serious and violent criminal offence had occurred.
As the Prime Minister said on April 19 during a speech in Winnipeg, “Simply put, the current practice of allowing some criminals who have been convicted of serious and violent sexual, weapons and drug offences to serve out their sentences at home is unconscionable”. This is why the government promised during the election campaign to end conditional sentences for the crimes that Canadians find the most serious and which deserve the greatest punishment and denunciation. What better way to determine what is the most serious offence than by simply going to the Criminal Code itself and looking at what the Criminal Code classifies as serious offences.
We committed to send a message that serious crime will mean serious time. Currently, conditional sentences, that is, sentences served in the community and more often than not in the home rather than in a correctional facility, are an option for use by judges under certain conditions. First, the sentence must be less than two years. Second, the court must be satisfied that allowing the offender to serve the sentence of imprisonment in the community will not endanger the safety of the community. Third, the offence must not be punishable by a minimum term of imprisonment. Fourth, sentencing an offender to serve a conditional sentence of imprisonment must be consistent with the fundamental purposes and principles of sentencing set out in the Criminal Code. These include sentencing objectives such as denunciation, general deterrence and separation of the offender from society.
These prerequisites were designed to screen out the most serious or violent cases from getting a conditional sentence of imprisonment. Indeed when the previous government introduced the sentencing option, it gave assurances that it would not be used for serious or violent offenders.
These relatively lenient sanctions, especially when compared to incarceration, have been extended to serious and violent offenders. This has caused a great deal of concern in the communities where the offenders have ended up serving their sentences. Law enforcement agencies and victims organizations are concerned as well.
In the leading case of R. v. Proulx, the Supreme Court of Canada recognized that while a conditional sentence can be onerous and used to express the objectives of denunciation and deterrence, it will usually be more lenient than a jail sentence of equal duration. I can only say that speaks to common sense. We do not often hear of a defence lawyer standing up and strenuously arguing for jail instead of house arrest. The Supreme Court went on to say that there were objectives such as denunciation and deterrence and they are particularly pressing. In those cases, incarceration will likely be the more attractive sanction.
In order to improve and strengthen the criminal law and ensure that there is a strong response to serious crime, this bill introduces an additional prerequisite to the availability of conditional sentences of imprisonment.
This condition effectively prohibits the use of conditional sentences for offences in the Criminal Code, the Controlled Drugs and Substances Act and other federal statutes that are punishable by a maximum sentence of 10 years or more and prosecuted by indictment. This would capture, for example, impaired driving causing bodily harm, which has a maximum sentence of 10 years' imprisonment, and impaired driving causing death, which has a maximum sentence of life imprisonment. Indeed, this is a matter that Mothers Against Drunk Driving has continuously raised with members of the House and the bill seeks to address that particular issue.
This amendment would also capture the major drug offences prosecuted by indictment.
What are some of the other offences that will be ineligible for a conditional sentencing order after the bill comes into force? There are many, including serious property and administration of justice offences, such as theft over $5,000, break and enter with intent to commit an indictable offence, forgery, fraud over $5,000, bribery, perjury, criminal breach of trust, robbery, arson, and making counterfeit money.
These offences are in addition to the serious personal injury offences that will be excluded from the conditional sentencing regime, including: criminal negligence causing bodily harm or death; dangerous operation of a motor vehicle where injury or death occur; sexual assault prosecuted by indictment and aggravated sexual assault; abduction; assault causing bodily harm with a weapon; aggravated assault offences involving explosives; manslaughter; attempted murder; kidnapping; and hostage taking. These are all, at the present time, eligible for house arrest.
This is a long list of some of the most serious offences in the eyes of Canadians. Of course, not every one of these offences has always resulted in a conditional sentence, but too often they have, and it has caused concern with the public and the criminal justice system.
For example, Ontario data for the last fiscal year show almost 200 break and enters with intent, over 300 frauds over $5,000, and 130 robberies. A robbery is not a theft. A robbery is either violence or threat of violence. Thirty-nine aggravated assaults resulted in conditional sentence orders.
These are all the kinds of cases that the prior government said would never result in house arrest.
B.C. statistics show that a total of 466 convictions punishable by 10 years or more received conditional sentence orders. In Quebec, the figure for the period October 1, 2004 to September 30, 2005 was just over 1,000. In Saskatchewan last year, 603 offenders, or 61% of all conditionally sentenced offenders, received a conditional sentence order for offences punishable by a maximum of 10 years or more.
I want to give members a few examples that are drawn from a report prepared by Alberta Justice and Attorney General and tabled with the House of Commons justice committee in 2003, entitled “The Conditional Sentence of Imprisonment: The Need for Amendment”.
In R. v. Hall, which went to the B.C. Court of Appeal, the offender was found guilty of aggravated assault, assault with a weapon, possession of a weapon for a dangerous purpose, and attempting to obstruct justice. He was sentenced to 18 months on the aggravated assault, concurrent with two 12-month sentences for each of the weapons offences and three months consecutive on the attempting to obstruct justice offence, all to be served conditionally, that is, outside of the jail context. The Crown appealed.
It was a swarming attack. The victim was surrounded and attacked. He received a stab wound in the back. He was struck in the back. He was stabbed in the lower back and was forced to his knees. He looked up and saw a meat cleaver aimed at his head. He put his arms up to protect himself and, as a result, his elbow bone was cut cleanly in two. One of the bones went some distance up his arm. He nevertheless managed to run away and obtain help. An ambulance was summoned. He was taken to the hospital and operated on. He spent over a week in the hospital.
His school activities were affected, as were his sporting activities. His impact statement described the continuing effect the injury has had on his life as well as indirectly on his family. The Court of Appeal maintained the conditional sentence. The court found the sentence length on the low end but not unfit.
A second example can be found in R. v. Poulin, a Nova Scotia case in which the respondent was found guilty of counselling the offence of murder. He was sentenced to a term of imprisonment for two years less a day, and again, to be served in the community subject to certain conditions. The Crown appealed the sentence, submitting that the sentence inadequately reflected the objectives of denunciation and deterrence and that the judge failed to provide sufficient reasons for the sentence.
The Court of Appeal found, after considering the record and submissions of counsel, that the trial judge committed no error in principle and that the sentence imposed, while at the very low end of the acceptable range, was not demonstrably unfit in the circumstances. For counselling murder, the individual served his sentence at home. In this matter, the offender, on at least one occasion, had offered money to have his wife killed after an argument with her.
A final example is in another Nova Scotia case, R. v. C.(W.M.). In September 2002, the offender, a 57 year old male doctor in a rural area, was convicted of indecently assaulting three male patients between the ages of 13 and 15 who were seeking medical attention. The doctor, who of course was in a position of trust, was found guilty and, in the words of the court, “showed no remorse”. The Crown asked for a period of incarceration from three to five years. He was given an 18 month conditional sentence concurrently on all counts, the court finding as mitigating factors “that the offences did not include violence or threats of violence”. Let us imagine that. These 13 year old children were assaulted by a doctor while receiving treatment and the only thing the court could say when the individual himself showed no remorse was that there was no violence or threats of violence.
These are just three instances of the inappropriate use of conditional sentences that have resulted in the sanction being held in disrepute. The courts in fact have found that these are applicable, so it is the responsibility of this Parliament to change the law to make sure this does not happen again.
My department, working with provincial and territorial officials, suggested a number of ways in which access to conditional sentence orders could be restricted. Of all of the options considered, the bill before us today represents, in my opinion, the clearest and most straightforward approach.
Having said that, there are a few matters I feel I should point out to my hon. colleagues.
First, while many offenders who would have been eligible for a conditional sentence order will in the future serve their time in custody, not all will. It is anticipated that some will receive a suspended sentence with probation. Some offenders who would now be eligible for a conditional sentence order will likely get a prison sentence that is shorter than the conditional sentence it replaces, followed by a period of probation of several months.
Second, this amendment targets only indictable offences and not offences prosecuted by summary conviction. In cases of so-called hybrid offences, a conditional sentence of imprisonment will only be unavailable in respect of those offences prosecuted by way of indictment. In order to ensure that the sentence is proportionate to the gravity of the offence and to the degree of the responsibility of the offender, the justice system will have to rely on police and prosecutors exercising their discretion prudently and using a summary conviction charge in appropriate cases only, as is the case at present, where the Crown has the discretion as to whether or not to proceed by way of summary or indictment.
Third, there is no question that provinces and territories will incur increased costs in building jails and hiring additional prosecutors and correctional staff. There is a cost to enhanced public protection and greater respect for the law. My sense is that most Canadians are prepared to see a portion of their taxes directed to maintaining a just, peaceful and safe society.
Conditional sentences are sometimes an appropriate sentencing tool, but they should not be used for serious offences. I am convinced that the appropriate use of conditional sentence orders will strengthen confidence in the sanction itself and in the administration of justice.
We cannot overstate the importance of public confidence in the criminal justice system. Safe homes and safe streets have been defining characteristics of the Canadian way of life. As Canadians, we have until the last few years rightly been proud of our sense of community, safety and personal security. This recent but widespread decline in public confidence in the criminal justice system in general, and the sentencing, correctional and parole processes in particular, must be addressed.
Those of us who have had the honour of being elected to the 39th Parliament of Canada must take the lead in improving our constituents' sense of safety and security and their confidence in the institutions that have been established to protect us all. That is why this government has promised to introduce the most comprehensive reforms to the criminal justice systems in recent Canadian history.
The two bills I have been proud to introduce to date are only the start of a mission to change the criminal justice system of this country. In the coming weeks and months, there will be many other legislative and non-legislative measures introduced in this House by myself and my colleague, the Minister of Public Safety, that will contribute to the protection of law-abiding Canadians.
I recently had the privilege of inaugurating Canada's first national victims of crime awareness week. The Government of Canada takes victims' issues seriously. We will continue to work to ensure victims have a respected voice in the federal corrections and justice system and receive the assistance and support they need.
In closing, I call on members of the House to join me in supporting this legislation. Together, we can assure Canadians that they can live on safe streets, in safe communities, in a just and secure society.
Hon. Keith Martin (Esquimalt—Juan de Fuca, Lib.):
Mr. Speaker, as I mentioned before, this is a very important issue affecting all of our constituents and has had a lot of public interest for a very long period of time. Our mutual obligation, as all of us know, is to ensure that our citizens are protected, that we have an adequate prevention program, that we work with the provinces, and that we have an integrated plan for rehabilitation throughout our penal system. In that way we can ensure that those who run afoul the law will have the best opportunities for rehabilitation.
On the particular issue of mandatory minimums, the Canadian Association of Chiefs of Police took a very balanced view built on the work that was done on Bill C-70 in the last Parliament. If it were adopted by the House, we would have seen mandatory minimums implemented in a certain way that would have been reasonable and built on the minimums introduced back in 1995.
I will quote the statement from the Canadian Association of Chiefs of Police, which I think is a very balanced approach. It stated:
|| The CACP supports minimum mandatory sentencing for certain crimes that align with the concept of serious consequences for serious crimes. We also support the elimination of conditional sentences for those convicted of serious offences keeping in mind that conditional sentences do have a place in sentencing principles for judges.
The Canadian Association of Chiefs of Police can be interpreted as taking a balanced view, recognizing that sentencing guidelines have to be put into place for crimes that are quite serious, particularly those involving assault, sexual offences and offences involving organized crime. If we were to utilize a balanced approach, as the parliamentary secretary mentioned during her speech, then we would ensure that the courts have sentencing guidelines that will enable them to protect citizens from a core of a relatively small number of individuals who are responsible for the bulk of the crimes committed in our society.
If we were to speak to police officers in any community, they would generally say there is a core group of individuals in each community who are committing offences on a repeated basis, who have no regard for the law, and often exist in a revolving door within the justice system. It is very frustrating for our police officers on the ground and certainly for those who are victimized by these individuals. A lot of them do not have any respect for the law and maintain a disregard for it knowing full well that the courts frequently will not impose the sentences required for those individuals who are committing these crimes.
Having said that, it would be unwise for us to impose minimum mandatory sentencing for first offenders with extenuating circumstances around the offence committed. Albeit these are rare occasions, but the court should have the flexibility to ensure that these individuals are not simply thrown into prison and the key thrown away after receiving very long sentences for a situation that had mitigating factors. I will provide an example.
Data and information were looked at in certain parts of the world regarding mandatory minimum sentencing for people who had been convicted for possession charges on a repeated basis. It was found that mandatory minimum sentences did not provide a disincentive for the individual to use drugs. In fact, it found that where mandatory minimum sentences were imposed on those convicted of possession charges, there was actually a 3% increase in recidivism. In effect, we are actually making matters worse under these circumstances.
I know that is not the intent of anybody in the House, so I caution the Minister of Justice to look at the facts. A very large body of evidence has been accumulated in looking at this particular issue because this type of sentencing is of great interest to a lot of countries in the western world. I would encourage the minister to look at that information. I know a lot of it is in his department because that is where we obtained a lot of that information. I think he would be wise and prudent to take a look at that.
The minister could also look at sentencing guidelines in a different way. Some jurisdictions have used sentencing guidelines in such a way that prosecution lawyers have turned some individuals into informants. Informants are very important in helping our police officers go after the kingpins of organized crime gangs.
Organized criminal activity is a very serious problem in our country. It is sad to say that crime gangs have found it very attractive to set up shop here for various reasons. In the former government, the minister of justice introduced tougher penalties for organized crime gangs. A lot of those penalties were quite exciting. I will give some examples.
We toughened up the RICO provisions, the racketeer influenced and corrupt organizations charges. If we really want to get organized crime gangs we have to go after their money. If we go after the financial underpinnings of organized crime gangs then we are getting to their heart, to their bread and butter, that which fuels their organizations. We toughened up the RICO provisions that would have enabled us to apprehend the proceeds from crime.
In the case of somebody who was convicted of being involved in organized criminal activity, historically it would be up to the crown to prove where the individual received that money. We turned that on its head to make sure that the individual who has been convicted has to prove where the money has come from in order to ensure that the money has been acquired by law-abiding means and if it has not, the courts have the power to extract the money. That very exciting and powerful tool enables our courts to go after the financial underpinnings of organized crime.
There are other things that we have to do. I want to delve into a subject that is a big problem, and that is the issue of substance abuse in our communities. The Prime Minister has made it very clear that he looks at substance abuse as an issue of personal morality. He has lamented that society does not sanction people with substance abuse issues in a negative way.
People who have substance abuse problems have a medical problem, not a judicial problem and they have to be dealt with in that way. If we throw the book at people who have a substance abuse problem, or try to deal with them as a judicial problem, we are going to be making matters worse. We are going to increase their level of criminality. It is certainly not going to address the heart of the problem. While many of these individuals have a substance abuse problem, they also have what is called dual diagnosis. A lot of them have a psychiatric problem as well. It is a toxic marriage between a psychiatric problem and a substance abuse problem. Both feed off each other. It is a profound tragedy for those afflicted.
Mr. Speaker, you have seen it in your community, as have all of us in our communities. Among the individuals living on the streets, we see a subpopulation of homeless individuals who have a substance abuse problem, a psychiatric problem, or both. We are not dealing with this in a very intelligent way. I was dismayed and disheartened last week when the Prime Minister was in Victoria and said that he was not going to continue with the harm reduction strategy that we have been using in east Vancouver to great effect. It has saved a lot of people's lives. He is going to need “more studies”.
The studies have been done and the evidence is very persuasive. Lives have been saved. There has been a decrease in the rates of HIV, hepatitis C and hepatitis B. If the Prime Minister wants to save lives of individuals who are living in the conditions that none of us would ever want to experience, then he had better look at the facts, remove his sense of morality and look at this as a way of saving people's lives and reducing harm. If he wants to do that he should extend the east Vancouver experience to other communities in Canada. Communities across the country that are trying to grapple with the issue of substance abuse need to adopt these programs. The Prime Minister and his justice minister need to give these programs the green light.
In Victoria, B.C. the chief medical officer, Dr. Richard Stanwick, has put together a very comprehensive and exciting harm reduction strategy based on work that has been done in Frankfurt and other parts of Europe. Those experiences show very clearly that to reduce substance abuse a comprehensive view is what works. If necessary, the person should have access to a safe injection site and the drug. This may rub people the wrong way, but if we do not give the drug, the person will become involved with organized criminal activity and we would not have dealt with a very important part of the picture. It will take some people a while to get their heads around this idea, but if they thought about it properly and logically instead of through the prism of morality, they would see that this would work.
If necessary, the person should have access to a safe injection site and the drug that the person needs. Along with that, if necessary, there should be counselling and psychiatric help because of the dual diagnosis I mentioned earlier. The person also needs skills training and work.
The unions would be wise not to stick their noses into this and try to impose union desires on an issue that is a matter of life and death for these individuals. Work was an integral part of the treatment program for the individuals on the ground. Work gave people in the programs a sense of structure and discipline that they never had before. It gave them a sense of self-worth and meaning and enabled them to connect with other parts of their treatment program that had to happen over a prolonged period of time.
It is an integrated program and it works. In order for that to happen the justice minister has to give the okay. I would put forward a plea to the justice minister and the Prime Minister that they give the green light to Victoria and other parts of Canada to proceed. I ask them not to cut off the ability of these programs to function. They were going to cut off the ability of harm reduction programs to occur in this country. If they did that, they would essentially be signing a death warrant for people who live on the street. It would increase the rates of hepatitis C, hepatitis B and HIV. I am sure that is not what they would want but that is exactly what the consequence of their actions would be if they did not give the green light to these programs forthwith.
There are many people on the street who will be dead a year from now if these programs are not continued or started. I challenge the government to allow them to proceed. It is a matter of basic humanity and justice.
There are a number of other suggestions I would submit to the Minister of Justice. The Canadian Association of Chiefs of Police came up with a series of recommendations in August 2005. In those recommendations were a number of very cogent solutions that would enable them to do their job as effectively as they do. As I said before, we are deeply grateful for the work they do. They put their lives on the line for the security of all of us. They need to establish an integrated police framework and interoperable radio communications programs. Our former deputy prime minister was working on that. The Minister of Justice would be wise to continue with that program.
We also need to support the RCMP's jetway program. That training program has been extremely effective in enabling RCMP officers to identify criminals and apprehend the proceeds of crime.
Also there is a very important issue on fingerprinting particularly with respect to indictable offences. If individuals are charged with an indictable offence and they do not consent to fingerprinting the arresting authorities have two options: release or jail them. This is ridiculous. It is a major impediment to justice being done and for the individuals to go before the courts and be prosecuted. It is very important that this happen.
I would also suggest that the Minister of Justice work with his provincial counterparts to come up with some way of letting firefighters know when they are going into a suspected grow op or crystal meth house. Right now our firefighters are going into these houses without knowing what awaits them. Many crystal meth labs and grow ops are fires waiting to happen. They are lethal places for firefighters to walk into as they are often booby trapped. I understand that personal privacy issues are involved here, but the lives of our firefighters have to trump the privacy issues of individuals whose homes are suspected of being crystal meth labs or grow ops.
This would be a simple thing to do. I would encourage the Minister of Justice to work with Commissioner Zaccardelli of the RCMP and with its provincial counterparts to come up with a way that firefighters could make a quick call to the local RCMP or police station to find out whether or not they are going into a grow op or crystal meth lab. We would be doing due diligence and justice and would be saving the lives of the firefighters who protect us.
The government cancelled the early learning program that we set up. One program that has been shown to be effective at preventing crime is the headstart program for children, a program which ensures that children's basic needs are met. A 25 year retrospective analysis on headstart programs showed a 50% to 60% reduction in youth crime. Imagine that. Headstart programs can be found in Moncton, New Brunswick and Ypsilanti, Michigan. There is also the Hawaii healthy start program.
When I was putting myself through school, I worked as a guard in a maximum security prison. The high incidence of fetal alcohol syndrome was evident among the prison population. It is estimated that between 40% and 50% of individuals in jail suffer from fetal alcohol syndrome and fetal alcohol affects. Fetal alcohol syndrome is the leading cause of preventable congenital brain damage in Canada. An individual suffering from fetal alcohol syndrome often has a median IQ of about 70 as well as a host of problems trying to integrate into society. Fetal alcohol syndrome is irreversible, but it is preventable.
Fetal alcohol syndrome can be prevented if individuals are spoken to before they have children. Imagine the cost savings to the health system. Imagine the decline in the prison population. Fetal alcohol syndrome and fetal alcohol affects are preventable. The Minister of Justice and the Minister of Health should be gripped with this issue because simple, sensible and cost-effective things can be done to prevent this from happening.
Individuals suffering from fetal alcohol syndrome are often marginalized in school because of their low IQs and the psychological challenges they face. Imagine if that did not happen. Those children would have an incredible opportunity to become integrated members of society.
If the Minister of Justice and the Minister of Health were to look at the headstart program, if they were to build on the early learning program that my party put together, they would be doing something quite remarkable for Canadian society. Youth crime and teen pregnancy rates would be reduced. Kids would stay in school longer, thus reducing their dependence on our social programs.
I have laid out some constructive solutions that I hope the minister will consider. The former parliamentary secretary provided her cogent solutions on minimum mandatory sentencing and the work we did through former Bill C-70. We certainly hope that we can craft a bill that will serve the public well and help our police officers while also reducing criminality within our society.
Mr. Rick Dykstra (St. Catharines, CPC):
Mr. Speaker, it is a privilege to stand today to speak to Bill C-9, an act to amend the Criminal Code, conditional sentence of imprisonment.
As we heard earlier from the Minister of Justice and Attorney General of Canada, the bill would deliver on the government's platform and its commitment to eliminate the availability of conditional sentences for serious crimes, including designated violent and sexual offences, weapons offences, major drugs, crimes committed against children and impaired driving causing death or serious injury. It is a key issue addressed by the local chapter of Mothers Against Drunk Driving in my riding and community.
The bill would also introduce an additional prerequisite which would have to be met before a sentencing court could consider imposing a conditional sentence. The bill would make conditional sentences unavailable for offences punishable by a maximum of 10 years or more that would be prosecuted by way of indictment. The new bill would screen out serious offences, including serious violent offences in the Criminal Code as well as the major drug offences in the Controlled Drugs and Substances Act.
The government's move to reform the conditional sentence regime is an attempt to limit conditional sentences to cases for which they were originally meant to be used. In this regard I would refer hon. members to the comments made in 1994 by the then minister of justice and attorney general, the Hon. Allan Rock. At second reading of Bill C-41, which introduced the conditional sentence of imprisonment as a new sentencing option, he stated:
|| It seems to me that such an approach would promote the protection of the public by seeking to separate the most serious offenders from the community while providing that less serious offenders can remain among other members of society with effective community based alternatives while still adhering to appropriate conditions.
He went on to add:
|| Jails and prisons will be there for those who need them, for those who should be punished in that way or separated from society.
In June 2003, the Alberta ministry of justice and attorney general prepared on behalf of British Columbia, Manitoba, Ontario and Nova Scotia a paper entitled “The Conditional Sentence of Imprisonment: The Need for Reform”. In the 37th Parliament, this document was provided to the Standing Committee on Justice and Human Rights for its review of the operation of conditional sentences of imprisonment.
The paper argued that conditional sentences were an appropriate and effective sentencing tool in many cases, but the committee expressed concern with the use of a community sanction for offences involving serious violence or serious property crime.
The provinces that contributed to the paper were concerned that conditional sentences were being used too often for cases of serious crime, such as serious violent crime, sexual assault and similar offences, impaired driving, dangerous driving and criminal negligence involving death and serious bodily harm.
The options put forward for reform in the paper included a prohibition of the use of conditional sentences for such offences or a rebuttable presumption that a conditional sentence not be used for those serious offences.
On January 25, 2005, federal, provincial and territorial ministers responsible for justice affirmed that conditional sentences were an appropriate sentencing tool in many cases, but they, too, expressed the need for timely reforms to identify appropriate limits to the use of such sentences, particularly for serious violent offences.
There is a new government now, one that is committed to protecting our families and our communities. One way we can do this is to ensure that conditional sentences are used the way they were originally intended to be used; that is for less serious offences committed without aggravating circumstances.
I agree that conditional sentences can be an appropriate sentencing tool in many cases, but for very serious offences, especially serious violent offences, I am confident that the more appropriate use of conditional sentence orders will strengthen public confidence in, and sanction of, the administration of justice.
By working together, all levels of government, members of law enforcement and of course people from our community, we can move toward a safer society for ourselves and our families.
I believe members will find that it is a myth, or political spin at best, to say that parties opposite are concerned about prevention and that our present government is only about tough justice. I do not think it is unfair to say that part of the reason we are in the position we are in today is due to the weakening of the justice system and a soft approach to crime that has done nothing but see it increase.
Our new government's approach will be visible and it will be practical. In keeping with the platform we were elected on, we will make the streets safer in St. Catharines and all of Canada, and that is one of our top priorities.