Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence, April 19, 2007
OTTAWA, Thursday, April 19, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, to amend the Criminal Code (conditional sentence of imprisonment), met this day at 10:50 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is here today to begin its examination of Bill C-9.
This bill seeks to amend section 742.1 of the Criminal Code to provide that a person convicted of a serious personal injury offence as defined in section 752 of the code, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more, is not eligible for a conditional sentence.
A serious personal injury offence is defined as an indictable offence other than treason or murder involving the use or attempted use of violence against another person. It is also defined as an offence involving conduct endangering or likely to endanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage upon another person. The offence in question must be one for which the offender may be sentenced to imprisonment for 10 years or more.
Conditional sentences were first introduced in September of 1996 and allow for sentences of imprisonment to be served in the community rather than in a correctional facility.
To speak to us today on this bill, we are honoured to have the Minister of Justice and Attorney General, the Honourable Robert Nicholson. He was first elected as a member of Parliament for Niagara Falls in 1984. During that time, he served as Minister for Science and Minister responsible for Small Business, Parliamentary Secretary to the Attorney General and Justice Minister and Parliamentary Secretary to the Leader of the Government in the House of Commons.
In January 2005, he was appointed Chief Opposition Whip. Upon re-election in 2006, Mr. Nicholson served as Leader of the Government in the House of Commons and Minister for Democratic Reform during the first year in office of Canada's new government. Mr. Nicholson was appointed Minister of Justice and Attorney General of Canada by Prime Minister Stephen Harper on January 4, 2007.
Minister Nicholson, we welcome you to our committee today. The floor is now yours.
Hon. Robert Douglas Nicholson, P.C., M.P., Minister of Justice and Attorney General of Canada: Thank you for all the work your committee does and will do.
I am pleased to be joined on my left from the Department of Justice by Ms. Catherine Kane, Acting Senior Counsel from the Criminal Law Policy Section, and Mr. Matthias Villetorte, Counsel, Criminal Law Policy Section.
[Translation]
Bill C-9, introduced in May 2006, reflects the government's commitment to eliminate conditional sentences in cases of very serious offences, including violent sexual assault committed with a weapon or against children and impaired driving causing death or injury.
[English]
Conditional sentences, often referred to as house arrest, are currently available if the sentence is less than two years. The offence is not punishable by a mandatory term of imprisonment. The court is satisfied that the offender, to serve the sentence of imprisonment in the community, would not endanger the safety of the community, and the court is satisfied that allowing the offender to serve the sentence in the community under conditions would be consistent with the fundamental purpose and principles of sentencing set out in the Criminal Code.
Bill C-9, as amended, proposes an additional prerequisite that would restrict the use of conditional sentences for terrorism offences, criminal organization offences and serious personal injury offences, as defined in section 752 of the Criminal Code. Those offences are prosecuted by indictment and punishable by 10 or more years.
Bill C-9 seeks to restore Parliament's original intention in introducing conditional sentences in 1996, and to improve people's confidence in the administration of justice.
When an offender is sentenced to house arrest for a serious crime, particularly one involving violence, Canadians do not feel that the conduct of the offender has been adequately denounced or that other offenders will be deterred. This sentence can also serve to undermine the sense of security and safety that Canadians have about their communities.
I do not want to leave the impression that these kinds of cases are widespread. We recognize that a conditional sentence order can be an effective and sensible sanction for many non-violent offences.
As well, the current conditional sentencing regime includes numerous checks and balances to ensure proper functioning. For example, if the conditions of a conditional sentence order are breached, the sentence can be expeditiously converted to actual jail for all or part of the remainder of the sentence.
However, many Canadians, including provincial and territorial justice ministers, share the government's view that greater guidance needs to be given to the courts with respect to serious violent and sexual offences.
As you may already know, the rationale behind the creation of the conditional sentencing regime was to respond to the need to reduce reliance on incarceration for less serious offences.
In the leading case of Regina v. Proulx, the Supreme Court of Canada recognized that while a conditional sentence can be onerous and used to express objectives of denunciation and deterrence, usually it will be more lenient than a jail sentence of equal duration.
The Supreme Court went on to say that where objectives such as denunciation and deterrence are particularly pressing, incarceration likely will be the more appropriate sanction.
The fundamental purpose of sentencing requires that any sentence, including conditional sentences, must contribute to respect for the law and the maintenance of a just, peaceful and safe society. The fundamental principle of sentencing demands that it be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Moreover, a sentence must reflect all the other sentencing principles contained in section 718 to section 718.2 of the Criminal Code. These principles include the objectives of denunciation, general deterrence and incapacitation, where necessary. Action needs to be taken, and this need is reflected in the bill before you.
How would Bill C-9 change the current conditional sentencing regime? First, terrorism and criminal organization offences punishable by a maximum sentence of 10 years imprisonment and prosecuted by indictment — and all but a few are prosecuted by way of indictment — would be ineligible for a conditional sentence of imprisonment.
Although the likelihood of such offences receiving conditional sentence is improbable, Bill C-9 nonetheless clearly renders these offences ineligible for a conditional sentence.
Second, Bill C-9 would make serious personal injury offences ineligible for conditional sentences. The effect of this reform would be to prevent the imposition of a conditional sentence for many serious and violent offences that the public does not agree should be eligible for punishment by house arrest. For example, offences of sexual assault prosecuted by indictment, sexual assault with a weapon and aggravated sexual assault, which are specifically defined in section 752 of the Criminal Code as serious personal injuries, would no longer be eligible for a conditional sentence.
Other ineligible offences would be those offences involving the use of violence against another person or that involve conduct endangering or likely to endanger the life or safety of another person, or inflicting or likely to inflict severe psychological damage upon another person that are punishable by a maximum penalty of 10 years of imprisonment or more and, as I indicated earlier, prosecuted by indictment. For example, offences such as aggravated assault or attempted murder would be ineligible for house arrest.
Of course, we recognize that this part of the definition of a "serious personal injury offence" will be subject to interpretation in accordance with the facts and circumstances of each case.
There is existing case law in the interpretation of a serious personal injury offence in the current context of a dangerous offender application, which I think should be of some assistance.
Accordingly, in this context, the case law indicates that a serious personal injury offence may be established where the offence involved violence that goes beyond trifling. In the 2005 judgment of the Saskatchewan Court of Appeal in Goforth, the accused had been convicted of assault with a weapon.
He had been drinking with the victim and several other people when, for no reason, he attacked the victim, hitting her with a wine bottle. The victim went to hospital. She had no broken bones, but medical staff put her arm in a sling, gave her medication and discharged her. In that case, the Saskatchewan Court of Appeal held that there was no reason to import into the definition of a serious personal injury offence in section 752 a requirement that the predicate offence involve a serious degree of violence or endangerment.
As with any criminal reform, it might take some time for criminal justice professionals — prosecutors, defence lawyers and judges — to adjust to these changes. That is why, in part, Bill C-9 will come into force six months after receiving Royal Assent, to provide time to prepare for these changes. As well, the criminal justice professionals will be able to draw on the established case law around a serious personal injury offence in the dangerous offender context.
Our message with Bill C-9 is clear. We want serious violent offences to be treated more seriously and not to be punished by house arrest. This committee will know that the bill before you is different from the bill introduced by the government. Specifically, it does not eliminate the use of conditional sentences for serious drug offences in the Controlled Drugs and Substances Act unless they are committed as part of a criminal organization offence.
While this approach is not our preferred one, I recognize that in a minority Parliament, compromises are necessary. In this respect, we remain of the view that Bill C-9 changes the current law by eliminating the use of conditional sentences for serious violent offences that are currently eligible to receive a conditional sentence.
Consider, for instance, the 2004 Manitoba Queen's Bench decision in Hogg. In that case, the accused was a 21-year-old university student. After consuming approximately 15 alcoholic beverages, he mistook the victim for a person who had assaulted him and his close friend. The accused and two friends followed the victim home, at which point the accused struck the victim on the side of the head with a steel bar that is normally used to secure the steering wheel of a car.
The victim, a young university student who aspired to become a lawyer, almost died. He was hospitalized for approximately two months with a severely fractured skull. As a consequence, the victim sustained a mild form of brain damage that has impaired his speech and memory.
The accused pleaded guilty to aggravated assault and received house arrest of two years less a day for an indictable offence that is punishable by a maximum sentence of 14 years. Under Bill C-9, I believe that such a fact situation would constitute a serious personal injury offence and therefore would be ineligible for conditional sentence.
[Translation]
Bill C-9 affirms that the adequate response to crimes of serious violence is the denunciation implied in a sentence of imprisonment.
[English]
I wish you the very best in your deliberations, I look forward to them, and I would be pleased to answer any questions.
The Chairman: Thank you, minister, for an excellent overview of this act. Some criminal bills that come here, the omnibus bills, are inches thick, but this bill is one page. I note that you referred to clause 2 in your remarks that "This act comes into force six months after the day on which it receives Royal Assent," which gives a six-month period for police officers and the courts and so on to become familiar with what you are trying to do in this bill.
Do you have an education program that is a part of that familiarization? Will there be a rollout of some kind of educational program that will help teach people what the changes will be? If so, what form will that program take?
Mr. Nicholson: Thank you for the question. My understanding is that, pursuant to the consultations that we have had with the provinces and territorial governments, they are well aware that this change has been in the works and they will take the appropriate steps to ensure that people within the criminal justice system are aware of the changes we want to bring about.
The Chairman: On that basis, do you feel that six months is more than adequate time?
Mr. Nicholson: I think so. When we make a change of this nature, it is appropriate to give those involved in the criminal justice system the opportunity to look at the intentions of Parliament, to look at the legislation and to prepare themselves accordingly.
Senator Jaffer: If I may continue with the question Senator Oliver asked, do you agree that there are always ongoing training sessions: They are not something unusual?
Mr. Nicholson: That is a good point.
Senator Jaffer: I want to welcome you and thank you for your opening, which was clear. I want to clarify something before I ask questions. I am sure you are aware that Senator Tkachuk is speaking for the Government in the Senate. He had proposed maybe an amendment to the bill. Perhaps I am mistaken, but from your opening remarks I understand that you would be content with the bill the way it is.
Mr. Nicholson: Thank you for raising that matter. As I indicated in my opening remarks, I preferred the bill as it was introduced originally in the House of Commons. However, I recognize that the bill here is an improvement over the present situation.
As you know, and as I indicated in my opening comments, this bill was introduced in May 2006, and we are halfway through April of 2007. My concern is that if the bill continues to be amended, and particularly if the bill is restored to the way it was, which was found to be unacceptable to the opposition parties, we will have a further delay in what I believe is a necessary reform of the Criminal Code.
I know a number of suggestions have been made about possibly amending the bill or restoring the bill to the way it was, but again I recognize the limitations of a minority Parliament. If this committee would see fit to enact this bill in its present amended form, I would be pleased.
Senator Jaffer: Thank you for clarifying that point. Minister, in your opening, you took away all my brilliant questions that I worked on last night.
Mr. Nicholson: I am sorry about that.
Senator Jaffer: I was pleased to hear you say that there is a guideline for the judges, but there is also discretion for the judges. Parliament is sending a strong message that with violent crimes, conditional sentence is not something that the Parliament will look at favourably, but the bill still leaves the discretion to the judges. Have I heard you correctly on that?
Mr. Nicholson: We are giving more guidance and making it clear, to the extent that we can, situations when we think a house arrest or conditional sentence is inappropriate. I think it is important to give that guidance. The original conditional sentencing provisions were put in, I believe, in 1996, so they have been around for 10 or 11 years. The interpretation of that clause has been considered by a number of courts in this country, as you are aware. It is incumbent upon us to give direction to the intention of Parliament, and I believe that this bill gives that direction. This bill is an improvement over the present situation and it gives the guidance that I think is appropriate for Parliament to give to the courts and to those involved in the criminal justice system. I think it is a step forward.
Senator Jaffer: This question is not so much about the bill, but about the impact of the bill. I want to canvass that impact with you. I am sure you have read the briefs of the Canadian Bar Association and others. They mention the impact on the civil legal aid system when more lawyers are needed on the criminal side. Are you looking at increasing legal aid funding in different provinces to help with this bill and other bills coming forward?
Mr. Nicholson: I was pleased with the provisions of the recent budget tabled and passed in the House of Commons that give longer term, stable funding for the legal aid system. I believe in the legal aid system. As you know, it is administered and, for the most part, financed at the provincial level. Legal aid addresses our concerns that individuals receive legal representation. Studies and individuals have indicated that, when individuals do not have legal representation, apart from placing their own rights in jeopardy, lack of representation is difficult to handle because it clogs up our system and delays the court system. There are strong arguments for legal aid.
With respect to the impact of this bill, one point that I tried to make in my opening comments is that, for the most part, we think that the courts are right on this subject. We are attempting to give further refinement. There are many instances where a conditional sentence is an appropriate response to an individual being convicted, and I am the first one to acknowledge that point. I gave you an example of one, and I think it is appropriate for us to do that, but I do not want to leave the impression that there are thousands or tens of thousands of these kinds of cases. Their number is relatively small, it seems to me, but they are important just the same. If people see that the sentence does not match the seriousness of the crime, that perception can have consequences for the criminal legal justice system. If people tend to lose confidence in the criminal justice system, the consequences are not positive. A bill that limits conditional sentencing helps to restore that balance. Again, you are making the point that we are not talking about gigantic numbers in this country. It is a small number, but our job as parliamentarians is to try to address that number and make those adjustments where necessary.
Senator Bryden: This bill is the result of the government bill, and its amendment in the House. I probably should have researched this matter before I came here. The bill was amended in the house. When it passed, did it have support of all parties, most parties or some parties?
Mr. Nicholson: Yes, it did, senator. To be fair, I am not sure about the Bloc Québécois or the New Democratic Party. Perhaps I will ask my colleagues.
It had overwhelming support from the House of Commons. The then justice minister and I, as Government House leader, preferred the original government bill. Nonetheless, I recognize that this bill is an improvement over the present law.
Senator Zimmer: Minister, it is nice to see you again. I appreciated your presentation this morning about the young lad from Winnipeg, where I come from. Ironically, many years ago, before I was a senator, I was at Mass one day and I talked to his mother. She told me the story, and it was shocking and sad. I promised her that one day, if I could make a difference, I hoped I could. Fortuitously, by act of God or Parliament, I am here today, and on Sunday I will see her again and tell her I played a role in her situation. I will bring you up to date. Her son still has not had the opportunity to go to law school because he is impeded from the accident, but I will tell her about your presentation today and your comments will be reflected to her.
I understand that conditional sentences are rarely handed down in cases of impaired driving causing death. However, for such cases, or where the impaired driving has caused injury, can you comment on how and under what circumstances restorative justice concepts are typically implied?
Mr. Nicholson: Are you asking, with respect to impaired driving cases?
Senator Zimmer: Yes.
Mr. Nicholson: First, thank you for your comments in respect to that unfortunate individual. I am moved by your comment that, for whatever reason, you are here today to move this bill forward. With respect to impaired driving, are you asking me if it is caught in this bill?
Senator Zimmer: Yes.
Mr. Nicholson: If it is, it is caught with the serious personal injury or serious personal injury causing death. Perhaps I will turn to Ms. Kane.
Senator Zimmer: What is the application?
Catherine Kane, Acting Senior General Counsel, Criminal Law Policy Section, Department of Justice Canada: There have been instances where impaired causing bodily harm and not so much impaired causing death have received conditional sentences because the court has looked at the full circumstances. The circumstances could have been a tragedy and a lot of remorse on the part of the accused. In those situations, the person driving may have gone on a tour to schools, community organizations and whatnot to speak about the perils of impaired driving, and this tour is part of their sentence.
However, in another bill, Bill C-23 that will proceed eventually to this committee, there is a range of criminal procedure reforms. A clarification in that bill makes it clear that the offence of impaired driving causing death and the offence of impaired driving causing bodily harm are subject to the mandatory minimum penalties that also apply to simple impaired driving where there is no injury or death. There had been some confusion in the case law. That will be the case that the mandatory minimum penalties, MMP, would have to apply. A first offence could be only a basic fine but it would still be a mandatory minimum and, in that context, a conditional sentence would not be possible.
Mr. Nicholson: The situation would be caught under the present law. If there is a mandatory minimum sentence, a conditional sentence is not allowable. We are making it clear that under Bill C-23, which is another bill you will have soon, you will be able to consider those changes on the impaired driving side as well.
Ms. Kane: It will not be lost.
Senator Zimmer: It has been argued that rehabilitative and restorative objectives can be met by a sentence carried out in a community since institutional incarceration can sometimes impede rehabilitation. Also, the condition of an order can be crafted to respond to the specific needs of the offender. Given that conditional sentencing was introduced almost 11 years ago, can you comment on any evidence of its efficacy with respect to rehabilitative measures?
Mr. Nicholson: I am one who believes that the idea of having this option is a good idea. We know that a prison sentence is not always appropriate or the best way to handle an individual. We try to strike a balance between that option and the seriousness of the offence.
In a number of cases, the seriousness of the case means that, for a number of reasons apart from the case or the situation of the individual, a conditional sentence is not appropriate. The example I gave and the examples that are given to us tend to decrease people's confidence in the criminal justice system. One hallmark or fundamental principle of Canadian society is a respect for the rule of law in this country. Frankly, I will go so far as to say that respect for the rule of law helps to define whether a society is successful or not. In part, we are trying to address that respect with a situation like this.
We want people to continue to believe that certain behaviour is so repugnant in society that to be sent home is not an appropriate response.
We are not responding only to the needs of the individual. The individual who is sent home after a serious offence, I would argue, is not receiving the right message. Individuals might make mistakes in the future by not having impressed on them the seriousness with which society objects to their behaviour.
Individual who have committed serious crimes and are incarcerated have the opportunity to think about what they have done and they have that opportunity to change their ways.
Senator Zimmer: I will pass on your comments of compassion to the mother. I know she will find comfort in them.
Senator Baker: The legislation you referenced a few moments ago regarding further changes to section 253 of the code, impaired driving: Is that the drug impaired bill you are talking about?
Mr. Nicholson: Yes, it is the criminal procedure bill, Bill C-23.
Senator Baker: Does that change section 253 to section 258 further?
Why would you introduce two pieces of legislation changing section 253 at the same time? Why not do it all in the same bill?
Ms. Kane: We refer to Bill C-23 as our omnibus bill. It includes a number of provisions of long-standing reforms to the Criminal Code that the minister keeps track of. His provincial colleagues, Uniform Law Conference of Canada and other groups bring them to his attention more or less to bring provisions up to date. It is not a substantive reform of many of those provisions; it is an efficiencies or effective type of reform. Bill C-9 was to correct the interpretation that was confusing in the case law to ensure that the law was clear in cases of impaired driving causing bodily harm and causing death: that the MMP applied to impaired driving also applied to those offences. That correction is the extent of the amendment. It is not a full package of impaired driving reforms.
Another bill, Bill C-32, makes more significant amendments. Its hallmark is the drug-impaired driving provisions.
A series of criminal law reform bills are making their way through the legislative process, but the Bill C-23 package deals with a variety of things: sentencing amendments, a few impaired driving amendments, several official languages amendments and other procedural reforms such as to warrant provisions.
Mr. Nicholson: I would never use the term omnibus bill. That term has its own connotations, as I am sure you are aware. It is efficiencies, but you, as a long-standing parliamentarian, would be aware that when items come to our attention or are brought to our attention from provincial attorneys general, we sometimes wrap them up. They are usually non-controversial items and enjoy widespread support. I am sure this bill will be no exception to that rule.
Senator Baker: As Ms. Kane said, there is nothing substantial as far as the changes are concerned.
Mr. Nicholson: The changes are generally clarifications of the existing law, Senator Baker. On a regular basis, we usually collect these things and every so often, we introduce a bill to tighten up the law. The substantive changes to the bill that you indicated with respect to impaired driving will be available for you when we conclude our deliberations in the House of Commons on that matter.
Senator Baker: Is that bill called Bill C-32?
Mr. Nicholson: Yes.
Senator Baker: As far as I can see, looking at the section that is presently in the code, the only change being made to section 742.1 is the insertion of words that covers five lines. You are only inserting, as I see, three separate things that would not require, I suspect, much education on the part of the judiciary or the Crown prosecutors. Is this not a simple matter of looking at these three specific exceptions and applying them to the section already in effect? Where is the complication you are talking about?
Mr. Nicholson: I do not think there is any complication. It is easily understood, Senator Baker, but I take nothing for granted. I thought the original bill was straightforward and could have been implemented, but it has been changed, as you see.
A lot of individuals are involved with the criminal justice system of this country, and we indicate to provincial attorneys general across the country that we will put the changes into effect. As Senator Jaffer pointed out, an educative process is involved any time we change the Criminal Code. We want everyone involved with the criminal justice system to be aware of the changes we made.
Senator Baker: With respect to the wording, Bill C-9 specifically spells out serious personal injury offence, as defined in section 752, a terrorism offence or a criminal organization offence. Then you put in the words "prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more." Can you think of an occasion where such offences would not be prosecuted by indictment?
Mr. Nicholson: In my opening comments, I stated that it would be rare that they would not be prosecuted by indictment. The original wording of this bill, as you know, made reference to the fact that if the offence had a maximum penalty of 10 years or more, then conditional sentencing. However, we are left with this particular wording after a lengthy review at the standing committee on justice. Again, I am the first one to agree with you that few cases would be prosecuted by way of summary conviction.
Senator Baker: I am sure that the chair, who is a former professor of law, would agree that it would be extremely unlikely to prosecute someone summarily for any of these serious offences, unless of course they ran out of the six months imposed by the Criminal Code and they had to go by indictment.
What response do you give to people who say, minister, you cited some serious cases in which a judgment was brought down by a judge. The judge makes a decision based upon the presentations of the defence and of the Crown prosecutor. If a conditional sentence is imposed and that convicted person violates that conditional sentence, then they immediately go to jail. They do not stop at "Go" and collect $200: They immediately go to jail. The condition has been breached and the original sentence applies. Then, reverse onus is on the accused to prove that this course of action should not be the case.
Given that fact, and given that every sentence that is imposed is appealable by the Crown, and the Crown is certainly not limited by resources, then what do you say to those people who say these protections are built into the system? You can cite cases that sound terrible, but one would have to be the original trier of fact to determine whether it is as terrible as it sounds, and we have those built-in mechanisms in the code that protect us against repeat crimes.
Mr. Nicholson: It goes back to our role as legislators. Our job is to give guidance and direction to everyone involved with the criminal justice system, as to the seriousness with which we view particular offences. We are used to doing that and it is as old as, or even older than, Confederation. As you know, every bill that we pass has a maximum sentence. Why do we put in a maximum sentence? We are giving direction to the courts as to the seriousness with which we view that offence. The maximum sentence could be two years, five years or life imprisonment. How do we come to that determination? We, as legislators, have the responsibility to make the determination as to how seriously we view the crime.
Conditional sentences were brought in, I believe, in 1996 as an alternate. I think it is an alternate that can work well and has, for the most part, worked well. However, as with any changes to the Criminal Code, it is incumbent upon those of us in the business of legislating to look at the changes, refine them, and give further guidance to the courts with respect to the changes. This response is appropriate. That is what I would say to those individuals. It is a judgment call. We must listen to Canadians. We must look at the body of evidence that is before us and come to a determination as to what we think is appropriate. We do that all the time at this level with respect to the Criminal Code. I am comfortable with this response, as I believe you are, because that is the job that falls to us. That is what I would say to those individuals who ask why we are doing this: why we are giving this guidance. It seems to me that it is our role to give guidance with respect to the criminal justice provisions.
Senator Baker: We have now a new Department of Public Prosecutions that was passed in a bill before this Senate committee. Presumably, we have a new system in Canada today but I am not sure whether we do: The bill was passed by the Senate. Perhaps you could comment on that.
However, I have a final question. The minister was careful when he read out the gravamen of the offence: likely to endanger, likely to do this and likely to do something else. In all those sections of the Criminal Code, nothing is clear-cut. The conditional sentences were put in there to allow a certain judgment to be made, in that someone could have a whole list of judgments against him or her, with a record 50 pages long, but perhaps relating to the same offence, and the person judged likely to endanger someone. What effect do you think this change will have on the Crown prosecutors who are now under the Director of Public Prosecutions? Will they think twice before they lay a particular charge or will they, do you think, go with the included charge?
In the case, say, of an offence of home invasion, perhaps they would go with the offence of assault robbery or some lesser offence. Because of this change that will be made, perhaps the Crown prosecutor might feel it an injustice to charge the offence that would be captured by this new section.
Mr. Nicholson: That is a judgment call in every case. That is the role of the Crown attorneys, who are under provincial jurisdiction. They are the ones who administer the Criminal Code and, of course, will continue to do so in the provinces of Canada. However, I think Crown attorneys will welcome direction like this and they will welcome a bill like this. I do not have any reservations that people will not charge someone with the appropriate section because they will not like the penalty that will be imposed on the individual. I do not see that as a problem.
Senator Baker: What was removed from this original bill then is all reference to charges that would be made under the Controlled Drugs and Substances Act or any other federal act that would be administered by federal prosecutors under the Director of Public Prosecutions office. Is that correct?
Mr. Nicholson: That is right.
Senator Baker: We are left with all charges under the Criminal Code that normally would be prosecuted or would be prosecuted by the province.
Ms. Kane: For clarification, the Public Prosecution Service of Canada would prosecute all Criminal Code offences and other federal statutes in the three territories. Bear in mind that even though the amendment to Bill C-9 that carves out only serious personal violence offences, terrorism offences and organized crime offences as those ineligible for conditional sentences, other criteria still govern when a conditional sentence should be imposed. While drug offences under the Controlled Drugs and Substances Act are not absolutely prohibited from receiving conditional sentences, all the other criteria would apply so they would be available only if there is no mandatory minimum penalty and if they are appropriate, based on the other criteria set out.
Senator Baker: The minister was not correct when he said that the provision applies only to Criminal Code offences prosecuted by the province.
Ms. Kane: The minister was certainly correct.
Senator Baker: He was correct but he forgot to mention those others.
Mr. Nicholson: I am sorry, Senator Baker, it is still possible. I would have preferred a direct inclusion, as was in original bill, with respect to the Controlled Drugs and Substances Act. I would have preferred that provision in the bill but it was taken out.
Senator Baker: Put it in an omnibus bill.
Mr. Nicholson: I will have a look at Bill C-23. Who knows? Would it have your support, senator, if I put it in there?
Senator Baker: I would need to look at the section.
Mr. Nicholson: That is fair enough.
Senator Joyal: I want to come back to the context into which this amendment to the Criminal Code is introduced. You mentioned in your presentation, and Ms. Kane said too, that the reform of conditional sentencing was introduced in 1996, 10 years ago, and you said it is time to review it. Can you tell us what kind of study has been undertaken in the department to review the existing section 742.1 and the impact it has had in the court? In other words, how was the section used; what is the rate of accused who are given conditional sentencing; and what impact has section 742.1 had on the criminal justice system generally in terms of rehabilitation and so on? I think if we are to change the system and make it narrower, it is probably because you have done a certain evaluation of the way that the previous section has been used after 10 years, which seems to be a fair period of time to know about it.
Can you enlighten us more on the context in which the review of section 742.1 took place?
Mr. Nicholson: Thank you for the question. I will try. You may be aware of the studies of Julian Roberts with respect to that section. If you look at those studies, they say, in some cases, conditional sentencing has been helpful. It is difficult to conclude how conditional sentencing affects recidivism rates. In the research that I have seen not only in this context but in the context of most of the changes to the Criminal Code, it is difficult to prove that human behaviour will be altered one way or the other. However, to the extent we can, we look at the studies such as the one I have mentioned. We are in ongoing negotiations and discussions with the provincial attorneys general across this country. We take their input and their experiences with federal legislation and, again, we assimilate that input and we try to come up with a response that is reasonable.
As you point out, this particular legislation has been in effect for a little over 10 years. I believe it is appropriate, apart from the amount of time that it has been in effect and the changes, but we take directions as well from the decisions of the courts in terms of where they are with these issues. We try to come up with a reasonable response.
Again, I think this response is reasonable, and I hope that you and your colleagues in the Senate will see fit to move this bill through the Senate and towards creating law.
Senator Joyal: Was the Julian Roberts study commissioned by the Department of Justice?
Mr. Nicholson: I believe it was.
Senator Joyal: Could it be made available to the members of this committee so we can review the conclusions?
Mr. Nicholson: Absolutely.
Senator Joyal: You also refer to the provincial attorneys general conference, which occurs on a regular basis. Did they make specific recommendations in relation to section 742.1, as they normally do?
Mr. Nicholson: Yes, they did, specifically with respect to this section.
Senator Joyal: Can we have a copy of their annual conclusion or recommendation that they provided in relation to section 742.1?
Mr. Nicholson: I will make inquiries with respect to that information.
Senator Joyal: Did the Law Reform Commission of Canada review the use of conditional sentencing and evaluate or comment on it generally?
Mr. Nicholson: No.
Senator Joyal: In relation to the section as it is now, did you evaluate the impact it would have on the rate of incarceration? In other words, taking into account that section 742.1 would imprison a higher number of convicted persons, do you have any statistics of the impact of that section on prisons if it was enforced within the last 10 years?
Mr. Nicholson: I believe you have the Canadian Criminal Justice Association, CCJA, before you, and they may be able to provide details as to the impact of an amendment that would apply in this case to serious personal injuries. I believe it is difficult to predict.
In comments I made in response to Senator Jaffer, I do not think we are talking about a huge number of offences that would be caught under this amendment. Nonetheless, I hope I made the point that I believe the cases that would be caught by this amendment are significant. Again, I do not think the problem is widespread.
I also indicated that I think the role of conditional sentences has an important part to play in our criminal justice system, but I believe this amendment is a necessary refinement. Again, I do not think we are talking about huge numbers that would be caught by this amendment.
Senator Joyal: In relation to that issue, I am trying to reconcile the reading of the proposed changes to section 742 with section 718.2 of the Criminal Code, which deals with the restorative justice principle included in section 718.2(e). How do those two sections work? Should I conclude that the amendment to section 742 excludes the use of section 718.2(e) in relation to Aboriginal people specifically?
Mr. Nicholson: I do not think it would. Mr. Villetorte would like to make a comment on that.
Matthias Villetorte, Counsel, Criminal Law Policy Section, Department of Justice Canada: It is not in contradiction with the objective and principle of sentencing as found in section 718. It is complementary to it.
I think you also mentioned section 718.2(e), which is the specific provision dealing with Aboriginal offenders. The amendment does not target Aboriginal offenders per se. It is a reform in general. Therefore, it is not contradictory to section 718.
Senator Joyal: In other words, a judge faced with a situation involving an Aboriginal person could still do the reflection exercise that section 718.2(e) contains in relation to Aboriginal people?
Mr. Nicholson: Exactly.
Senator Andreychuk: Minister, it is not the section per se that bothers me. We have introduced conditional sentencing and, in my opinion, the public understands people being held in prison. Being in the community is also understood because we have had probation or variations of sentences that involve community service or fines.
I think in the public's mind, this idea of losing their freedom or having their freedom is well known. Therefore, probation was something they understood. We will not put them in jail. There is denunciation deterrence when they go to jail.
When we introduced conditional sentencing, it is somehow in between. My difficulty lies in trying to explain to people the difference in the conditional sentence. The question is not so much deterrence and denunciation as safety.
How do we get across to people that conditional sentencing has taken into account the safety of the public, and those who receive conditional sentencing are those who are not likely to endanger the public? That issue is the one we are after.
It takes only one or two cases of a repeat offender to destroy the credibility of this system. How does this bill per se help us by not incarcerating people that should not be incarcerated? We can deal with their sentence in the community as justice demands, and at the same time we do not endanger another life.
Mr. Nicholson: That challenge is the one we face, Senator Andreychuk. You have hit the nail on the head: to balance the right of the individual, the right of the victims, the right of society to feel protected and the right of society to continue to have confidence in the criminal justice system. That is the balancing act in imposing a sentence when you sat on the bench, and that is the challenge that you and all of us have as legislators.
All I can say is that by bringing forward a bill such as this one, one that targets some of the crimes that all of us agree are serious, and by making it clear to the extent we can that home arrest or conditional sentencing is inappropriate, I think we are doing our job.
How do we sort that balance out? We are saying that the more likely it is that an individual will be convicted of a serious criminal offence, the more reason to be careful and concerned about the safety of the public. We make a division at that point.
The provisions with respect to conditional sentencing say that an individual who commits a more minor offence is less likely to place others around him or her in danger. We make that call, and we basically make it on the seriousness of the offence within the Criminal Code. The judgment call we must make is to impose on that principle the information that is acquired by the court and is presented to the court.
Our job is to determine that if the offence is at a certain level of seriousness, we do not want the person sent home after conviction. However, we are willing to believe, and take a chance, that on a more minor offence, that individual might benefit from not being sent to a detention centre in terms of that individual moving on with their life, making a constructive contribution and perhaps maintaining their family situation and employment. In making that decision, we say there is an opportunity or an avenue for that individual to return to society.
We try to accomplish that balancing as legislators, and the balancing you and others who have sat on the bench must do on a daily basis.
Senator Andreychuk: We probably failed in 1996, if that was the year we brought in conditional sentencing, to make the point that conditional sentencing is a restriction of freedom. Prison is a restriction of freedom, and conditional sentencing is a restriction of freedom, whereas, to me, probation was, "I am going to risk giving you a second chance. I will not worry about denunciation and deterrence in the same way."
Conditional sentencing relieves some of the difficulty for families, as you said, because others who did not commit the offence suffer when a person goes to prison. The point we have not made is that conditional sentencing is a restriction of freedom, and those within the system and those within the community must know that a person is deprived of their freedom because they are likely to endanger, not because the offence was serious or less serious, in my opinion.
My point is, when we look at only severe sentences and severe crimes such as terrorism, et cetera, there are significant indicators that there is a cumulative effect. They start with a less serious offence and, if they are still within that milieu of criminal activity, they could likely escalate into the endangerment category. Senator Baker talked about the 50-page rap sheet, which will sometimes show a trend.
Mr. Nicholson: A 50-page rap sheet would show a trend. Of that, I have no doubt.
Senator Andreychuk: Some 50-page rap sheets show a repetitive petty crime, but some will show an escalation. That situation is where "likely to endanger" cannot be tied only to the severity of the charge but also to the behaviour of the individual. Does this act cover that point? It seems to apply to the serious crimes but not to the behaviour of an individual.
Mr. Nicholson: I believe the general provisions in the bill do apply to that situation. What we are doing here is in addition to that. As was pointed out earlier, it complements the provisions already in the Criminal Code. You have made a valid point, and I am particularly interested in your comments that the message that conditional sentencing is not probation but a form of sentencing perhaps is lost in the discussion with respect to conditional sentencing. That problem too is part of the challenge that we and those involved in the criminal justice system have.
Senator Andreychuk: As one of the longer term members of this committee, along with Senator Joyal, we look at omnibus bills closely. It is not what the preamble indicates. We are always looking for that section that has been added, often termed as housekeeping in the opinion of others but in the opinion of this committee as substantive.
Mr. Nicholson: I removed that term from my lexicon and I never use it.
The Chairman: Minister, I know you must go. On behalf of the committee, I thank you for coming today. Even though this bill is only one page, it was interesting today that each senator who posed questions looked not only at the one-page bill but pushed the parameters of this bill into the implications on public policy. It became an interesting discussion on public policy, and we thank you for that.
The members of the Department of Justice will stay on so we can continue with our questions.
Senator Joyal: Ms. Kane, in the context of the point of view expressed by Senator Andreychuk, a certain number of reasons could lead to removing conditional sentencing. Because of the past history of the person, they could come to the conclusion that conditional sentencing should be applied — for instance, using the danger factor. Would another way of approaching this issue be to label the use of violence or aggravating factors as an element to be taken into consideration in coming to the conclusion that conditional sentencing should be removed?
Ms. Kane: There would be a variety of ways to restrict conditional sentences. As the minister indicated, the government introduced a bill to make it clear that, in cases where the maximum sentence is over 10 years, those offences would not be appropriate for conditional sentences. The 10-year sentence makes it clear that those offences are serious and therefore should not be eligible for conditional sentences. The further amendment narrowed that restriction, and the further amendment was obviously in the context of the bill that was before the other place. That was the way that narrowing was achieved.
There are a variety of ways to amend the Criminal Code, but this amendment was felt to be the most appropriate way to send a clear message that, in certain cases, conditional sentences should not even be an option.
Senator Joyal: In other words, essentially the amendment was based on the seriousness of offence, the one that entails 10 years?
Ms. Kane: That is correct.
Senator Joyal: It was not based on other circumstances that could lead to the conclusion that conditional sentences in that context would not be the proper sentence offered to the court?
Ms. Kane: In the law as it stands, there are already four criteria now that the judge must consider in terms of whether conditional sentence should be the sentence. This provision adds a fifth criterion. The factors that you mentioned or that you referred to as aggravating factors, the seriousness of the offence and so on, in my view are built already into the existing section 742.1 that refers the judge to the purposes and principles of sentence and the fact that the offence is not likely to endanger the safety of the public.
Senator Joyal: In your opinion, was it the only way to approach this issue?
Ms. Kane: The amendment, as introduced, was designed to provide a clear, simple approach to say that offences over 10 years should not be eligible for a conditional sentence: not to provide another subjective criterion but to provide a clear limit that, in these cases, there is no conditional sentence available.
Senator Joyal: Was that change a recommendation of the study that concluded there was a need to limit for purposes of public policy, as the minister outlined?
Ms. Kane: The research did not suggest particular amendments to the Criminal Code. The research looked at conditional sentences as they were imposed under the current provisions of the Criminal Code, and various reactions to those sentences from victims of offences and from other criminologists. The case law that was reviewed looked at the imposition of the conditional sentence provisions as they are now.
There was also a lot of federal-provincial consultation about possible reforms to conditional sentence. Our provincial colleagues explored a range of alternatives they had presented to the former Minister of Justice as well as the current Minister of Justice. As in all those federal-provincial consultations, a variety of options were suggested.
The government chose the option to pursue the model for Bill C-9, as introduced.
Senator Joyal: Can you outline the options suggested by the Attorney General?
Ms. Kane: A federal-provincial working group of officials presented a report to provincial and territorial attorneys general.
Among the recommendations was setting other limits. Mandatory minimum penalties are off limits. Currently, if the offence received a jail term of two years or less, the bench would decide the other criteria. So, one of the options was having offences that would receive a jail term of one year or less. That option was considered, and only those offences that the judge would otherwise say should receive a jail term of less than one year would be eligible for conditional sentences. That option would cut the group in half.
There were suggestions that there be certain presumptions against the use of conditional sentences for certain offences. As the minister indicated, he will make inquiries about the availability of that report and then you will see the full range of options considered. They were presented for the consideration of ministers as options.
Senator Joyal: I understand that and I thank you for your information. It helps us to understand the policy context into which the amendment is introduced. The minister was right. After a period of time, especially when we introduce changes such as conditional sentences with the half success and success that reform might have had — the half success being the one described by Senator Andreychuk — people think the conditional sentence is no more a sentence. That factor might be one that led to the conclusion that we must restrict the conditional sentence because people do not think that the value of the sentence is meaningful to society. It brings criticism to the system that is not based on reality.
It is helpful for us to understand the context into which the proposal you made has been selected, chosen or decided in Bill C-9 so that we understand it in the context of the rehabilitation. We cannot stick only to the fact that the bill limits the access of conditional sentencing to a certain number of offences because individuals who find themselves in jail are still open to rehabilitation. That is the way I try to understand a sentence. The sentence is part of the rehabilitation and the person who has been found guilty is still accessible to rehabilitation.
Which context of the limit of conditional sentencing makes the rehabilitation option, which is the option that comes after the person leaves the prison, better or worse? That is Part II of the reflection that I think we should have in relation to this bill. As the chair said, it might widen the scope of this bill, but nevertheless, it is part of the decision we need to consider.
Senator Banks: Everyone is supposed to be equal before the law but they are not. We know that because the disproportion of Aboriginal people in jail says there is something wrong. We do not know what it is.
In response to the question that Senator Joyal asked earlier, and to which Mr. Villetorte responded, whether the section 718(2)(e) still applies in the new provision, I need to ask the question more specifically because I think they are mutually exclusive. Section 718(2)(e) says that, where possible, if Aboriginal folks are involved in the conviction, that fact should be taken into account, and alternatives to prison ought to be examined and carefully considered.
I think I heard the answer that it still applies. My question is: If an Aboriginal person is convicted of an indictable offence with a penalty of 10 years or longer and the judge sentences that Aboriginal person to a prison term of two years or less, that notwithstanding section 718(2)(e), that Aboriginal person is not susceptible of a conditional sentence; is that correct?
Ms. Kane: I do not know if I have captured your series of events, but if you had an Aboriginal person currently who was convicted of offence that carries a 10-year maximum that is not a personal injury offence or serious — if this bill is passed as amended and if it is not a personal injury offence —
Senator Banks: I am sorry, I left that part out. Let me make the question clearer.
An Aboriginal person convicted of a personal injury, indictable offence, which carries with it a maximum sentence of 10 years or greater, and receives a sentence of two years or less, that person, with the new amendment, is not susceptible of consideration by the judge for conditional sentences. Is that correct?
Ms. Kane: That is correct, nor is anyone else that would commit that offence. It is not meant to target Aboriginal people because we realize they are overrepresented as offenders and victims of crime. This amendment targets the nature of the offence committed.
Although a conditional sentence may not be possible as a sentencing option, there may be other sentencing options that the court can consider. A probationary sentence or other option may be available, but the conditional sentence would not be available. It would be within the discretion of the judge to craft the appropriate sentence and, in that context, the judge would look at section 718.2(e) as well as all the other purposes and principles of sentencing to see what is best for that offender within the parameters of the law that might exclude certain options.
Senator Banks: In the event of an Aboriginal person being convicted in those circumstances, under any of the three named offences, a conditional sentence would not be an option?
Ms. Kane: That is correct.
Senator Jaffer: Further to what Senator Banks said, the healing circle and special provisions would still be available to Aboriginal people. Is that correct?
Ms. Kane: Certainly, those provisions will still prevail. The amendment only applies to conditional sentences.
Senator Jaffer: I have a question on training. It is unusual to have a six-month waiting period for a bill to come into force. What kind of training are you looking at? I understand that a large number of people are involved in the system, but is there any specific training? Are there any papers? What kind of training will there be?
Ms. Kane: The six months to bring the law into force is not only to permit the provinces to train criminal justice system professionals. It is usual in all criminal law bills for the act to come into force on a date to be fixed, and not when it has received Royal Assent. When this bill was originally introduced, it did not have this clause in it so an amendment was made to add a clause to indicate when the law would come into force. In all situations, the people administering justice need to know with certainty when the law has changed so the amendment was proposed for six months after Royal Assent. That period is not unusual. Many bills give our colleagues that period of time to change forms and make everyone aware that conditional sentences would no longer be an option in certain situations. We do not think the change is complicated. It will be straightforward to clarify for Crown attorneys, for those working with offenders and for the judiciary that conditional sentences are not available in these circumstances, but that a six-month period will be an appropriate time to make that change.
Senator Baker: I have a point of clarification. The wording of the new five lines in this particular section of the code says, "If a person is convicted of an offence, other than" those offences defined for which the maximum term of imprisonment is 10 years or more. Is the intention then, to target those offences for which the maximum term of imprisonment is 10 years or more in reference to a section in the code, or is the intention in reference to the sentence by the judge after the sentence hearing, because there is a difference between those two things?
Ms. Kane: It is the sentence as set out in the Criminal Code as the maximum for that offence.
Senator Baker: That clarification is good because presently, the law is as you said, what is set out in the code.
Did you consider, in anticipation of bringing this bill in as law, the fact that there are offences for which sentences are imposed that are defined by minimum and maximum not in the Criminal Code, but by judgments of courts of appeal? I will give you an example.
For home invasion, usually under what is now called the Controlled Drugs and Substances Act, the standard was set by the Court of Appeal of Alberta, if my memory serves me correctly. If someone is found guilty of that offence, the minimum term starts, I believe, at eight years. It used to be five years. That standard is not in the code. If a judge in Newfoundland convicts someone of that offence, the first thing they do in their judgment is to go to the case law and they see the accepted term of imprisonment for someone who is convicted of this offence, which finds no definition at all in the code.
In your considerations of minimums and maximums, did you consider those terms that are not set out in the code but terms set out in Canadian law? You said all of this amendment refers to actual terms set out in the code.
Ms. Kane: We always operate on the basis of the parameters for sentencing set out in the Criminal Code. That is the framework. Within that framework, judges impose, and the case law then sets the appropriate range of sentences for offences. I do not think it would be possible for us to put in the Criminal Code references to cases that may change over time. That is the benefit of our Canadian system. We have the parameters and then as time goes on, courts of appeal and the Supreme Court may weigh in and change those ranges of sentences that are appropriate. We know from reviewing sentencing on a range of things that the maximums are rarely imposed. They remain maximums and most offenders never receive the maximum. The maximum is reserved for the worst situation for the worst offender. A variety of circumstances influence the sentence that is best for a particular offender within the parameters of the law and the circumstances that present.
The only way we can approach providing limits in the Criminal Code is to use what guides everything else, and those limits are the current maximums in the code now for sentences, and the minimums that are also there for a select number of offences.
Senator Baker: In other words, you ignore what is actually happening in the courts. You can rely only on what is in place in legislation. There is a certain unfairness, though, in that analysis.
Ms. Kane: We do not ignore what is happening in the courts. We look at the sentences imposed by the courts at the appellate level to determine whether what we have in the code now in terms of maximum reflects the current situation. I think the maximum for a home invasion far exceeds the eight years that the Alberta Court of Appeal may suggest as the starting point.
Senator Baker: The maximum is normally 15 years. That clarifies my point.
The Chairman: If there are no further questions, honourable senators, I want to thank Mr. Villetorte and Ms. Kane for staying on after the minister left. You have clarified a number of important items for honourable senators.
The committee adjourned.