Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 8 - Evidence - June 2, 2010
OTTAWA, Wednesday, June 2, 2010
The Standing Senate Committee on Legal and Constitutional Affairs met this day at 4:15 p.m. to study Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime).
Senator Joan Fraser (Chair) is in the chair.
[Translation]
The Chair: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is meeting today to study Bill S-9, An Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime).
We are pleased to welcome our first witnesses, from Statistics Canada.
[English]
From the Canadian Centre for Justice Statistics, we have Julie McAuley, Director; Mia Dauvergne, Senior Analyst, Policing Services Program; and Craig Grimes, Senior Analyst. At least two of the three of you have been here almost as much as a number of senators. We welcome you all.
I believe you will make an opening statement, Ms. McAuley. Welcome.
Julie McAuley, Director, Canadian Centre for Justice Statistics, Statistics Canada: Thank you for the opportunity to present to the committee regarding Bill S-9.
Statistics Canada does not take a position on the proposed amendments in the bill. The presentation we have prepared contains our most recent data on motor vehicle thefts. All data sources used are clearly indicated on the slides, as are any pertinent data notes. We have also included supplemental information at the end of the presentation for the consideration of the committee and have distributed a copy of a Juristat article on motor vehicle theft that was released in 2008 using 2007 data.
My colleagues, Ms. Mia Dauvergne and Mr. Craig Grimes, will help answer any questions.
The first slide in the deck indicates that police-reported motor vehicle thefts in Canada have generally been declining since 1996. The rate of motor vehicle theft declined 15 per cent between 2007 and 2008. Police-reported motor vehicle thefts are incidents in which a land-based motorized vehicle is taken or attempted to be taken without the owner's authorization. It includes incidents where the perpetrator has the intent to steal a vehicle but is unsuccessful.
In 2008, police reported about 125,000 motor vehicle thefts, averaging about 340 stolen vehicles per day. This figure includes both completed and attempted incidents. A little over half of all motor vehicle thefts in 2008 involved cars and another one third were trucks.
Motor vehicle theft is one of the most common types of police-reported crime in Canada. In 2008, they accounted for 6 per cent of all Criminal Code offences and 7 per cent of all non-violent offences.
The next slide shows that the highest rates of motor vehicle theft tend to be in the Western provinces and Northern Canada. In 2008, Manitoba had the highest reported motor vehicle theft rate in the country for the twelfth straight year. However, vehicle theft rates in Manitoba have declined in three of the past four years, including a 10 per cent drop in 2007 and a 39 per cent drop in 2008. This is a return to a rate not seen in Manitoba since the mid-1990s.
The next slide indicates that the same general geographical pattern is seen for Canada's census metropolitan areas. In 2008, the highest rates of motor vehicle theft were in Western Canada — in Winnipeg, Abbotsford-Mission and Kelowna. Winnipeg's rate has been among the highest in Canada for the past 16 years. In 2008, Winnipeg accounted for 81 per cent of Manitoba's motor vehicle thefts.
Motor vehicle theft is one of the least likely crimes to be solved by police. Of all vehicle thefts in 2008, 12 per cent resulted in an accused person being identified, compared to 34 per cent of all other non-violent offences.
Slide 5 shows that, similar to other non-violent offences, motor vehicle theft is a crime often associated with youth. In 2008, police-reported motor vehicle theft rates were highest among those 15 to 18 years old. Youth 12 to 17 years old accounted for approximately three in ten persons accused of motor vehicle theft in 2008, similar to the proportion of youth accused for other non-violent offences.
About 82 per cent of all persons accused of motor vehicle theft in 2008 were male. This compares to 76 per cent of males accused of other non-violent offences.
On slide 6, we can look at police-reported motor vehicle thefts and organized crime, drawing from analysis done in 2007. We do not yet have a reliable, direct way of measuring organized crime involvement, but vehicle recovery status has been used as a proxy measure. As you can see, about four in ten stolen vehicles were not recovered by police, suggesting that these may have been related to organized crime. Vehicle recovery rates were lowest in the province of Quebec and among the highest in Winnipeg.
In the next slide, we turn to the question of court outcomes for charges of motor vehicle theft. It is not possible to identify motor vehicle theft using court administrative records alone, since motor vehicle thefts are currently recorded together with other thefts under section 334 of the Criminal Code. However, we can link court records, which contain criminal court outcomes, with police records, which contain offence characteristics, in order to identify this subset of theft in Canada.
The question of whether motor vehicle theft is treated differently from thefts in general by the courts is often asked. We recently linked these administrative files to answer this question for another project.
An unrepresentative sample of court records did show differences in the way in which theft in general and motor vehicle theft were treated by the courts. Incarceration was used more frequently for guilty charges of motor vehicle theft, and there were significant differences in the length of custody imposed by the courts for motor vehicle theft compared to other theft.
Section 335 of the Criminal Code describes taking a motor vehicle without consent as an offence resembling theft. In slide 8, we see that several thousand of these theft-like charges are heard in Canadian criminal courts each year. The number of charges heard against youth has been declining since the introduction of the Youth Criminal Justice Act, while the number of these charges heard against adults has generally been increasing over the last decade.
The proportion of guilty findings for adults and youth tend to be higher for this charge than charges generally, but almost identical to the proportion found guilty for theft in general, section 334.
Next, we turn our attention to data currently available from criminal courts on the possession of property obtained by crime. Since trafficking in such property is a new offence proposed under Bill S-9, it is not possible to provide data on the extent to which these cases also include trafficking of that property. However, it is possible to provide data on the number of cases that contain the underlying offence of possession of property obtained by crime. Since 2000-01, approximately 10 per cent of cases, or roughly 40,000 cases each year, have contained at least one charge for property obtained by crime.
In summary, motor vehicle theft continues to be a high-volume offence in Canada, but Canada's police-reported motor vehicle theft rate has been declining since 1996. Motor vehicle theft rates are particularly high in the West. Vehicle recovery rates serve as a proxy for organized crime involvement, and we have seen that recovery rates vary across the country. Stolen vehicles are less often recovered in Quebec than elsewhere in Canada, while the recovery rate was among the highest in Winnipeg.
The Chair: Mr. Grimes or Ms. Dauvergne, will you add anything? This is fascinating stuff. We will then begin with questions.
Senator Wallace: Thank you, madam chair, and thank you for the presentation, Ms. McAuley. The information you have given is helpful, and the one question I have does not relate to any of the information I see there.
You may know one of the aims of the bill is to deal with the importation and exportation of stolen automobiles. We understand that a significant part of that criminal business, if not all of it, is linked to criminal organizations.
In that context, does your department have any statistics or information you can give us at all about the extent of that illegal trade across the border, not only of automobiles but also of automobile parts that result from chop shop operations?
Mia Dauvergne, Senior Analyst, Policing Services Program, Canadian Centre for Justice Statistics, Statistics Canada: We do not have information specifically on the involvement of organized crime in motor vehicle theft. As Ms. McAuley explained earlier, we can use vehicle recovery status as the proxy measure. Beyond that, we do not have anything at this time.
Senator Wallace: I noticed that in the presentation. That aside, do you have any information dealing with the nature of that illegal activity on a cross-border basis; or is that really a Canada Border Services Agency matter?
Ms. Dauvergne: That is beyond the scope of our data collection processes.
Senator Wallace: Thank you very much.
Senator Angus: I understand these are raw data, and probably no conclusions have been drawn by you, but, being from Montreal, I would like to ask the question. I figure the lowest rates of recovery are near the port. Do you have any data to suggest that the reason there is such little recovery is because those stolen vehicles in and around Montreal leave the country by ship?
Ms. Dauvergne: We do not have any data that provide us with information on what would happen with a stolen vehicle, other than to say whether it was recovered. That is where the information comes in with using the unrecovered vehicles as a proxy measure for the involvement of organized crime.
Senator Angus: You said four in ten. I think you explained that, Ms. McAuley. However, I want to be sure: Four in ten stolen vehicles were not recovered. I am assuming, therefore, that 60 per cent were recovered?
Ms. McAuley: Yes.
Senator Angus: Is that an average across the country?
Ms. McAuley: Yes, it is.
Senator Angus: It may be more or less, depending on the region. In Montreal, it might be only one out of ten, right? I am drawing that conclusion. I hope I am right.
Ms. McAuley: Yes, it is an average across the country, but the Juristat article provided to you does go into more detail on where the variations are. It is in Table 2 on the last page of the Juristat article.
Senator Angus: These numbers are for thefts of the whole vehicle in each case; is that right? It has nothing to do with theft from vehicles, correct?
Ms. Dauvergne: It would be the attempted or complete theft of a vehicle, yes.
Senator Angus: We have a terrible rash of this in Montreal. In fact, just the night before last, over the course of a three-minute walk from my home down to another home, I counted five piles of car window glass, meaning five cars had been broken into; the windows had been "zapped" open. Are there any statistics about those kinds of break-ins and thefts?
Ms. Dauvergne: We do collect information on thefts that are from motor vehicles. That is the category that parts of vehicles would fall into. That is not information we have with us today, but we could certainly provide it to the committee.
Senator Angus: There is data?
Ms. Dauvergne: Yes.
Senator Angus: Thank you.
Ms. McAuley: Just for clarification, that is police-reported break-ins. It would be the responsibility of the individual to report that directly to the police.
Senator Angus: You are lucky if you get the police to take a report. There are so many of these.
Senator Lang: Following Senator Angus, I want to refer to page 5 of your slides: "Persons accused of police-reported motor vehicle theft, 2008." I look at the age of the offenders and accordingly at the numbers of offences that have been reported in that age category, if I read that correctly. Am I reading that correctly?
Ms. McAuley: It is the rate per 100,000 population.
Senator Lang: Up to the age of 18, a huge number of vehicles are stolen. In part, I guess it is for the purposes of joyriding or otherwise, and it really puts both the public and those who are involved in the theft at risk.
In view of the numbers here, is the Department Justice Canada looking at the legislation that pertains to young people 18 and under, and perhaps making some changes there that would be more of a deterrent than what we see, which would maybe make the numbers in this chart go down a bit?
Ms. McAuley: That is a question that we would not be able to answer. That is a question that is better directed to representatives of the Department of Justice Canada.
Senator Lang: Okay. I guess that answers my question, Madam Chair.
The Chair: I think there are plans for adjustments in the youth criminal justice system, but we have not seen them yet in this committee.
Senator Lang: I realize this is outside the scope of the legislation we are dealing with, but it is certainly information worth considering.
[Translation]
Senator Boisvenu: I want to apologize for being late due to an event that was beyond my control, and I thank the witnesses for being here. I also apologize to them because I was not able to hear their presentation in its entirety. This is a very interesting subject matter and my chief concern is with the age of the criminals who commit the offence of auto theft.
I looked at the table under the item "Persons accused. . .". By looking at the curve and the part that relates to youths aged from 12 to 18, we can see that almost two-thirds of the stolen cars would be cases of theft committed by youths under the age of 18. Therefore, car theft is, for many young people, an initiation into the practice of crime.
Besides, the resolution rate of car thefts is 10 per cent. This means that these young people never get arrested and that they can continue in this vein for many years. In this way, they become increasingly criminalized and the cost of rehabilitation of these youths by the state continues to increase because criminality is becoming more and more firmly ensconced.
What are the statistics regarding the kind of sentences that were handed down for the 10 per cent of the young people who get arrested and who seem to me to be youths aged 18 or 19? We have a serious problem with organized trade in stolen cars where the resolution rate is almost nil and which is mainly perpetrated by criminals who are minors. Have any sentences been handed down?
[English]
Craig Grimes, Senior Analyst, Canadian Centre for Justice Statistics, Statistics Canada: The sentencing data for automobile theft cannot be extracted from the data we are collecting generally. The reason is that right now auto theft is within section 334 of the Criminal Code. There is no way to break out auto theft from theft generally from the court sentencing data without doing record linkage with policing. We did that for another project with very limited utility. I could not tell you anything about young offenders.
Senator Boisvenu: There is quite a bit of concern in that.
Senator Runciman: I had a question about young offenders that ties in with Senator Boisvenu's question. I guess you do not keep any statistics for diversion, whether we are diverting more young people than we charge. You do not keep that kind of statistic either so that we can assess that, right? I am thinking specifically of auto theft, but it could be on a broader basis than that.
We brought in the Youth Criminal Justice Act a few years ago, where diversion is the name of the game. I was told about an auto theft in my riding where the police chased the individual for about half an hour and stopped the car. He was 15 years of age and he got a letter of warning, I think, and maybe some community service, which is never monitored. I am not sure how frequently that is occurring.
Do you keep statistics comparing diversion versus an actual penalty?
Ms. Dauvergne: We have that information available to us as reported by police services. We have a variety of different surveys that collect information on crime in Canada, one of which is police-reported information. We can make the distinction between youth who are charged and youth who are not charged for auto theft, using that information.
What Mr. Grimes has commented on is the sentencing information. They cannot splice that out from section 334 of the Criminal Code.
Senator Runciman: Is it possible for us to get that information?
Ms. Dauvergne: We could certainly give you the police-reported information.
Mr. Grimes: There is also court information related to stays or withdrawals. Within that category, there are a number of other sanctions. Diversion is a very difficult subject to extract from the data. As Ms. Dauvergne indicated, there is the cleared by cleared otherwise. On the court side, there are sanctions from the Youth Criminal Justice Act that relate to reprimands and a number of other sanctions for the individual. All of that data is available.
Senator Runciman: How do you liaise with police groups to ensure the data you are collecting is done in the most productive and helpful manner? What is the process there?
Ms. Dauvergne: We have longstanding relationships with all of the police services across the country. We work with them on a daily basis. When their information is reported to us, it is put through a stringent verification process in which we follow up with every single police service in the country on all of the offences that they report to us and ensure that the information is reliable and consistent across the country.
Senator Runciman: They give you the data and you report it publicly. Who decides how that data will be released publicly? You are reporting on crime rates versus numbers, for example. Who makes those kinds of decisions? Is that the ministry itself?
Ms. McAuley: It would be within the mandate of Statistics Canada. The information that we do collect would be released. It is released every year; we release the crime statistics and the crime rate in the third week of July. We also now release the Crime Severity Index. If the police-reported information we have is of good quality, we will release it.
Senator Runciman: I read an article some time ago that you do a victimization survey. Is that correct?
Ms. McAuley: Yes, we do a victimization survey every five years.
Senator Runciman: It suggests the volume of crime may be three times higher than what you report. The suggestion is that people do not report for a variety of reasons; they do not have confidence in the justice system, or they may have further victimization.
We continually see crime statistics that are good news, I guess, in terms of what we are hearing. Can people really have confidence if the volume of crime is at this level but the statistics are here? I am looking for a view from you regarding whether people should feel as comfortable about decreasing crime in this country as the headlines would suggest.
Ms. McAuley: I would not be able to provide my personal view on that. We do create statistics every five years on person-level victimization. We do look at those data that are produced. The next round of data will be available in August. We look at them compared to what our crime rate is, and we do look at the differences.
Senator Runciman: Do you publish that data as well?
Ms. McAuley: We do publish the data. In August, there will be the first release from the General Social Survey, GSS, on victimization.
Senator Joyal: I would like to come back to the chart where the two lines of the adult and the youth run in parallel.
The Chair: Slide 8, I think.
Senator Joyal: Yes, slide 8. I have read very quickly the article that you have provided with the charts, the other publication. You state that three out of ten vehicles are stolen by youth. Would that be somebody below the age of 18?
Ms. McAuley: It would be anybody age 12 to 17.
Senator Joyal: Three cars out of ten are stolen by people from that age group. Do you have any indication for the remaining seven of them? In which age group is the highest proportion of theft, or have you not investigated that?
Mr. Grimes: That is different than the data that is in slide 8.
Ms. McAuley: For clarification, the three in ten are those accused. There has not necessarily been a sentence. It is just the number of accused.
Senator Joyal: It is only the accused. We cannot draw the conclusion that they are guilty of auto theft, in other words.
Ms. McAuley: It is the accused rate.
Senator Joyal: In that Juristat article, Chart 1, you indicate that some of the recent decrease in police-reported motor vehicle theft may be due to the implementation of specialized policies and programs by many police services. You mentioned other programs in Vancouver, Winnipeg, Regina, and of course British Columbia. You are referring to the GPS tracking system. In your opinion, could that explain the decrease in motor vehicle theft in the last five years?
Ms. McAuley: I would not be able to answer that. I would defer to one of the panellists coming up later, Dr. Linden, who may be able to provide you with more information on that.
Senator Joyal: You cannot draw a relationship between the decrease in numbers and greater awareness among police forces or the sellers of cars who invite you to buy a GPS when they sell you a car to better protect your car and so forth? In other words, you cannot make any correlation according to the statistics you have available?
Ms. McAuley: That is correct. We would not be able to provide any conclusive information. That is why I would defer that question to the next panellist.
Senator Joyal: Can you explain why the two lines in the chart on page 8 of your presentation, which indicates the levels of theft among youth and adult criminals, was in 2005-06 almost at par or at the same level?
Mr. Grimes: Slide 8 is court data, and that is related to an offence that resembles theft. It is taking a motor vehicle without consent. It is not possible to extract motor vehicle theft from theft generally using court data. This is the one offence in the Criminal Code where we can talk specifically about motor vehicles, but it is not theft. It is described in the Criminal Code as an offence resembling theft. Most thefts that we receive data on come in under section 334, not section 335.
Senator Joyal: Am I reading the chart on page 8 correctly to say that youth theft, in the most general terms, with the qualification you have just stated, has been decreasing regularly, while adult theft has increased slightly in the last two or three years?
Ms. McAuley: This chart shows that the number of charges heard against youth has been declining and the number of charges heard against adults has generally been increasing.
Senator Joyal: If it has been declining, do you know any specific reason? Is it because police cease to lay charges, or were there other interventions and the court proceedings were finally dropped? Is it because there is greater awareness among youth that this is a crime and should not be done on? Is it better education or awareness? Can you make any correlation between the two?
Ms. McAuley: I would not be able to answer the latter part of your question about the perception of the youth, but we would be able to come back to you looking at the charge rates by police for motor vehicle theft as an offence and those not charged from the data that Ms. Dauvergne was talking about previously.
The Chair: Would the aging population have anything to do with the decline in the number of charges laid against young persons?
Ms. McAuley: We would have to get back to the committee after looking at that.
[Translation]
Senator Carignan: I read an article on Juristat, written by Ms. Dauvergne. One specific point makes me uncomfortable with regard to the motives that are invoked for the high number of offences committed by youths aged 15 to 18. Among other things, we hear that a study on young offenders has demonstrated that joy rides, transportation and thrill-seeking are probably the main motives. Among the most frequently stolen vehicles, of course we find Hondas, but also Grand Caravans, Plymouth Voyagers, Shadows and Plymouth Sundances.
Senator Boisvenu: This is not very attractive, at least not as attractive as a Rolls-Royce.
Senator Carignan: That is not what gives the greatest thrills.
Has a study been done on the kinds of vehicles that are stolen according to the age of the thief? Has this information been collated to validate this hypothesis advanced by authors Anderson and Linden?
[English]
Ms. Dauvergne: That is not work that we have undertaken in Statistics Canada, but I believe Dr. Linden will be able to speak to that question.
[Translation]
Senator Carignan: Here we have the age of the accused persons. Have any other studies been done regarding the age of the thieves? We could hypothesize that young people are less skillful and get caught more often, which increases the number of people accused in this group.
Has that been validated or are there other studies or statistics than those on indictment rates by age? I am not sure that I have made myself clear.
[English]
Ms. Dauvergne: Perhaps you could reword it, if you would not mind.
[Translation]
Senator Carignan: The data indicate the number of thefts by age group. The study takes into account those individuals who were arrested. Are there other ways to determine age, as is done with victimization studies, for example, but conversely, in order to determine the number of thefts by age group? One could assume that the figure is skewed by the fact that young people are not as cunning, and are therefore more likely to get caught. A 30-year-old will be more experienced and thus evade the law more often, which might have a certain impact on statistics.
[English]
Ms. Dauvergne: I would not have information on other studies that would have been undertaken specifically about age and youth who commit motor vehicle theft, but I can tell you that it is not uncommon for us to see a disproportionate number of youth involved in crime and, in this case, in motor vehicle theft.
Mr. Grimes: Part of the problem is in that in order to do what you are asking, we would need to know information about the individuals who have not been apprehended in order to see whether there is a difference between the youth who are apprehended and those who are not, and we do not have the data to do that analysis.
[Translation]
The Chair: Your colleague Senator Boisvenu would like to ask a supplementary question.
Senator Boisvenu: I have glanced over the statistics. They indicate that Quebec has the lowest rate of solved thefts and percentage of recovered stolen vehicles, whereas the west has the highest rates. Can we assume that there are more joy rides out west and more organized criminal activities in Quebec? Vehicles are not being recovered in Quebec, and that might be because they are used by organized crime, but that young people out west are more likely to go for joy rides.
Senator Carignan: Young westerners are more keen to have fun.
Senator Boisvenu: Have you noted that the rate of solved thefts is much lower in Quebec then elsewhere? If the rate of solved thefts is lower in Quebec — with fewer cars being recovered — then is there more organized crime in Quebec? Do you not want to comment?
[English]
Mr. Grimes: It is a similar problem. It is trying to answer about those that have not been recovered and trying to make some estimation on that. It is not possible. We do not have that data.
Senator Boisvenu: It is simple to double. The difference is very big.
Ms. McAuley: We use vehicle recovery status as a proxy measure, as reported on slide 6. That is what we do. We do not have reliable data on organized crime in Canada.
Senator Joyal: I think the last paragraph on the page that begins with Chart 4 in the Juristat article illustrates the point made by Senator Boisvenu:
In 2007, about 4 in 10 stolen vehicles were not recovered by police, suggesting that a substantial proportion of motor vehicle thefts are related to organized crime. According to the CISC, organized crime groups involved in vehicle-related crime operate primarily out of Montréal and Toronto (CISC, 2008). Montréal not only reported the highest number of motor vehicle thefts in the country, but this city also had the lowest recovery rate. Toronto recorded the second highest number of motor vehicle thefts, but a recovery rate that was closer to the national average. In Winnipeg, where "joy-riding" is known to be prevalent, the large majority (82 per cent) of stolen motor vehicles were recovered by police.
It is incredible. In Winnipeg, there is the habit of taking a joyride, and the police retrieve the vehicle a couple of blocks away.
Since you seem to make a direct relationship between organized crime and the recovery rate of vehicles, one would be tempted to conclude that where the recovery rate is the lowest, it is because the vehicle theft is in fact in the hands of organized crime. Am I badly paraphrasing what you say in your report?
Ms. Dauvergne: What we can say is that that is a possibility. What we cannot say is that that is a conclusion.
Senator Joyal: I do not want to debate with you. I just want to outline the facts following the point made by Senator Boisvenu.
Senator Carstairs: We have not taken into consideration the size of the populations of these cities. I would suggest to you that Montreal and Toronto are significantly larger in population than the city of Winnipeg. That is a factor.
I suggest another factor might be that there is a publicly run automobile insurance program in the province of Manitoba. As a result, the province is very involved in publicity about stolen vehicles and about ways to avoid stolen vehicles.
Regarding joyriding, what is fascinating is the data that often these young people will not joyride just one car in a day; they will joyride five or six cars in a day. Technically, they have stolen six vehicles in one day for the purpose of joyriding. Those vehicles are almost all recovered.
Senator Runciman: Theoretically, if you relate joyriding to the younger citizen, you should be able to make a linkage between location and age here as well. I am not sure whether that is the sort of analysis you could provide, but that would help us in understanding that as well.
The Chair: Any drilling down that you can provide is always useful to us, of course.
[Translation]
Senator Carignan: With regard to the statistics on the 10 most commonly stolen vehicles in 2007, are those absolute numbers of vehicles stolen or relative to the number of vehicles sold by brand or model in Canada?
[English]
Ms. Dauvergne: Are you referring to Text box 1 of the Juristat report?
[Translation]
Senator Carignan: I am referring to the box on the 10 most commonly stolen vehicles in 2007.
[English]
Ms. Dauvergne: That would be according to the number of stolen vehicles.
[Translation]
Senator Carignan: Is that based on the total number of vehicles stolen?
Ms. Dauvergne: Yes.
Senator Carignan: I would like to come back to the statistics on youth, particularly to chart 4. Do you have a breakdown by age and types of vehicles stolen in order to help us determine whether we are talking about joy rides or organized crime?
[English]
Ms. Dauvergne: On the first part of your question, about the type of stolen vehicle, I would not be able to provide you with the name of the automobile, as Text box 1 did, but I would be able to provide you with the type. For example, if it were a car or a truck or some other type of vehicle, I could do that by an age breakdown.
As for the other part of your question in relation to organized crime, we would not have available to us information on the involvement of youth as it relates to organized crime.
Senator Baker: As always, the information given by the witnesses to the committee is very useful. However, I just have two very short questions.
First, we have been talking about theft of an automobile in the same context as joyriding. To my recollection, these are two distinct charges under the Criminal Code, with different elements and different sentencing. Joyriding is section 335, a summary offence.
In looking at the total number of persons charged, would it not be fairly simple to differentiate a charge under section 334 of the Criminal Code, which is theft, from a charge under section 335 of the Criminal Code, which is commonly referred to as joyriding?
Mr. Grimes: For courts, yes, it is. We can differentiate. The problem is that for section 334, there is no way to indicate whether the item then was a motor vehicle or something else.
Senator Baker: Yes, I understand that. However, I did not follow the general drift. Joyriding is not theft within the meaning of section 334, but within the meaning of section 335, which is to take a vehicle without someone's permission, not for the end result of stealing it, not with the mens rea of stealing.
If there is a differentiation of the charges laid — section 335 here and section 334 there — why are we confusing theft with joyriding during our general discussion? Certainly the charges are identified in our courts as completely different.
Ms. Dauvergne: The police report information to Statistics Canada under a violation code that groups those two together.
Senator Baker: That is very unfortunate, because section 335 is not an included offence under section 334, and that is very strange. Normally, you would get a report. If it were an included offence, yes, you could understand it, but it is not. That is very unfortunate. I do not understand that. When a charge is laid, a charge is laid under a definite section of the Criminal Code.
The Chair: Senator Lang had a very short supplementary.
Senator Lang: I wanted to follow up on that, if I could. When we look at this under section 335, joyriding, could that statistic actually include not just vehicles but snow machines?
Senator Baker: Oh, yes, as well as vans and motorcycles. A vehicle is defined as a snow machine as well, by the way.
Senator Lang: When I looked at this chart, madam chair, I thought we were looking at auto theft here, and now the field is wide open.
The Chair: It gets more complicated as the days go by.
Ms. McAuley: We define these as land-based, which is a car, truck, van, sport utility vehicle, motorcycle, bus and snowmobile.
Ms. Dauvergne: We could, however, break that out into smaller categories.
Senator Baker: You may not be able to under the charge because they call it "vehicle."
Ms. Dauvergne: Given the way in which police report the information to us, however, they are able to give us —
Senator Baker: They say, "to wit, a snow mobile," I guess.
Ms. Dauvergne: That level of detail is not there. I could tell you whether it is an automobile — a car — or I could tell you whether it is a truck, or I could tell you whether it is another type of vehicle.
Senator Baker: I have one final question. I am sorry to take so long, madam chair. There is a provision under the Criminal Code, section 354, called "Obliterated vehicle identification number." Under that section, it is an offence to wholly or partially remove or obliterate a motor vehicle identification number. It is the exact same wording as we have in this bill before us.
Do you have any statistics at all or have you looked at that yet? That is subsection 354(2) of the Criminal Code.
Mr. Grimes: Data for sections 354 and 355 have been provided in the supplementary tables as a group for possession of property obtained by crime.
Senator Baker: Yes.
Mr. Grimes: I do not know off the top of my head, but it is possible to look specifically at subsection 354(2).
Senator Baker: I ask the question because it would be helpful if there are any statistics on it. There have been no reported cases in the past five years in Canada of a conviction under this section of obliterating a vehicle identification number. I cannot find one. It would be useful to find out whether you have any statistics on this.
Mr. Grimes: I will provide to the clerk of the committee whatever statistics we have for the various subsections under sections 354 and 355.
Senator Baker: Maybe everyone was charged, but nobody was convicted. Anyway, that is fine.
The Chair: Just before I go to second round, I have a couple of short questions myself.
First, you have given us interesting data on the trend in police-reported motor vehicle thefts and charges laid for taking a motor vehicle without consent. Do you have data on the trend in the recovery rate? Taking into account that you have to use things as proxies, I am trying to figure out whether you have any data that would help us understand the trend for involvement of organized crime, if such data exist.
Ms. Dauvergne: Some data exists. We would be able to provide a trend. However, it is limited in the sense that it would be only a sample of police services representing about half of the population of Canada.
The Chair: Would it cover Manitoba, Quebec, Ontario, New Brunswick, Newfoundland, Yukon? I am looking around the table here.
Ms. Dauvergne: We would have to calculate the exact representation from each of the provinces. I would not have that at this time.
The Chair: Okay. It would be interesting. Further along that line of getting statistics that mean what you want them to mean, if this bill passes, will it make it easier for you to track motor vehicle theft statistically?
Mr. Grimes: If there is a different Criminal Code section —
The Chair: Then you can track it.
Mr. Grimes: We get information by Criminal Code section for courts. Right now, with section 334, it is not possible to break out the characteristics. Presumably, a change would create a change in the data that we collect.
The Chair: The last bullet of slide 7 refers to a non-representative sample. I assume that you are being statistically pure here and that a non-representative sample is a sample that does not meet all of the criteria that people who have doctorates in statistics would use, but that you thought it was sufficiently interesting and sufficiently representative in lay terms that it was worth mentioning here. Am I correct in that assumption?
Mr. Grimes: The objective in putting together that sample was to differentiate motor vehicle theft and other theft for the purpose of producing data for the Crime Severity Index. The sample was a sample of the records we could link in order to do that work. It was a very restricted sample; it was not designed to produce provincial or any other breakdowns. It was simply for that purpose.
The Chair: However, you did think that the results were sufficiently interesting to mention here.
Mr. Grimes: Yes.
The Chair: The mere fact that you called it a non-representative sample does not mean we should just tear off the bottom of the page and throw it out, does it?
Mr. Grimes: I have some data on that, if you would like me to provide them.
The Chair: You could give them to the clerk. That would be great.
Mr. Grimes: Okay.
The Chair: Thank you so much. It is always very useful to hear from Statistics Canada. It really is. We appreciate the work you do for us.
Ms. McAuley: Thank you for the opportunity to be here.
[Translation]
The Chair: We are continuing our study of Bill S-9, an Act to amend the Criminal Code (auto theft and trafficking in property obtained by crime).
We now welcome Mike Sutherland, president of the Winnipeg Police Association, and Professor Rick Linden from the University of Manitoba.
[English]
Thank you both very much for being here. We are very grateful to you.
Rick Linden, Professor, University of Manitoba: Those of us who have been trying to reduce auto theft in Canada for a long time welcome this legislation. Several groups I have been involved with, most notably the National Committee to Reduce Auto Theft, have been lobbying for the passage of this legislation for most of this decade, and it is nice to see it getting closer to passage.
While I support most of the proposed legislation, I have two issues with it. As background, let me explain the problem we have in Winnipeg, some of which came out in the previous panel. For most of this decade, we have been the auto theft capital of North America. That is not just Canada. We were running about 70 per cent above places like Modesto, California, which was the top place in the U.S., so we had a very serious problem.
The reason for this is that auto theft became an important part of the lives of a number of young people in Winnipeg. We have a relatively small number of active auto theft offenders who have proven to be hard to control. The pattern of thefts is that some of these young people will steal several cars in a day, drive them around and then abandon them.
As Senator Carstairs mentioned earlier, it was not unusual — it is now — for some of these kids to steal four, five or six cars in a day, just moving from one to the other. They even did this on days when it was 30 below in Winnipeg, which leads you to think if you could channel that energy, it would be a wonderful thing.
The highest-risk youth have been very difficult to control. Over the last year, many of them have cut off electronic monitoring bracelets in order to get back to stealing vehicles, even though they know they will be caught after they do it. Some of them even steal vehicles with the monitoring bracelets on. They know they will be tracked.
One of the problems we have with the current law is that the Youth Criminal Justice Act does not allow us sufficient scope to hold youth in custody while awaiting trial or to provide custodial sentences that might enable the correctional system to help these kids get themselves under control. Unfortunately, the proposals in Bill S-9 will not likely help with this. This is too complex for a non-lawyer like me to get into, but it would help if auto theft were to be designated as a violent offence, which is not part of the proposed legislation.
In Winnipeg, it is a violent offence. We have had several deaths due to auto theft. In one 17-month period, I think eight of Mr. Sutherland's colleagues, police officers, were deliberately targeted by people driving stolen vehicles. Many people have been seriously injured, including one jogger who was deliberately targeted on his early morning run by a young person driving a stolen car.
We are very concerned about trying to keep some of these high-rate offenders under control rather than out on the streets stealing vehicles.
The second problem I have with the legislation is a personal one. I am not a proponent of mandatory minimum sentences, and I do not see any need to use them here. I have not seen any evidence that mandatory minimums deter crime, and I see no need to take away judicial discretion in this legislation.
To put the role of legislation of all kinds in perspective, I will conclude my opening remarks by describing how we have reduced auto theft in Winnipeg. I think some lessons from what we did are applicable to many other types of crime in Canada and ways we might possibly reduce them.
Those of us who had lobbied to have auto theft defined as a separate violent crime saw such a law as a useful tool, but not as any panacea. Without the help of a new law, we developed the Winnipeg Auto Theft Suppression Strategy, which reduced auto theft in Winnipeg by 73 per cent between January 2007 and April 30, 2010. If we exclude attempts and consider only completed thefts, theft rates have dropped by 80 per cent in Winnipeg since their peak.
The program costs were $52 million. Much of it was funded by Manitoba Public Insurance and the rest by the provincial government. Those program costs have all been recovered. The ongoing savings to those insuring their cars in Winnipeg now exceeds $30 million a year, and that is flowing back to the automobile owners through reduced premiums.
There are now 10,000 fewer vehicle thefts in Winnipeg than there were in 2006. That represents a 13 per cent reduction in Winnipeg's total crime rate, which shows you how important that crime was in our city.
How did we achieve these dramatic reductions? We put together a comprehensive crime reduction strategy that involved all parts of the justice system, all working together and backed by sufficient funding, very strong leadership and great teamwork. I will briefly mention the three components of the strategy.
The first is a tiered approach to young offenders. We developed a broad range of programs for four levels of youth. First were Level 1 youth, who were simply young kids growing up in high-rate communities, all the way up to Level 4 youth, who are our chronic high-risk offenders. These are the ones who were stealing five and six cars a day.
For the Level 4 youth, we implemented a new strategy of focused deterrence, which we borrowed from Regina and from a project some of you may be aware of — the Boston Gun Project, which was used against youth homicides in Boston.
All of the Level 4 youth are in the community under conditions of release, including curfews. We put them under very intensive supervision. The youth were contacted every day by probation or police officers. That is seven days a week; and they were also contacted by phone every three hours, with a six-hour break over the night, to verify their activities. They are constantly being monitored. There is zero tolerance for breaches, and all youth who violate their conditions of release are apprehended by the police so they do not have the opportunity to reoffend.
The second component of the program is one of electronic immobilizers. Here we do owe a debt to Parliament for passing the legislation mandating immobilizers on all vehicles sold in Canada after September 2007. That has been a huge contribution to reductions in auto theft.
Initially, we offered free immobilizers, worth about $400 installed, to owners of the highest-risk vehicles, the Caravans and the Neons that were alluded to earlier. I can explain why it is thrilling to steal those things. While this resulted in 63,000 installations, we still had displacement. Kids would just walk down to the next one on the block that did not have an immobilizer. We then implemented a mandatory immobilizer program that took in an additional 100,000 high-risk vehicles. Every vehicle that had a risk of theft of 1 in 100 or greater was mandatorily immobilized or the car could not be re- registered. This was done free, and people get an ongoing reduction in their insurance premium of $40 a year once the immobilizer has been installed.
Finally, we had a number of programs dealing with the underlying causes. We addressed the social causes of auto theft by working with young people, their families, their schools and employers to try to reduce the number of youth attracted to this activity.
We have evidence that each of these components had an impact on theft rates. It is important to emphasize that none of this required any new Criminal Code legislation. At the same time, the IMPACT program in British Columbia, just to recognize some of our competitors, has also done an outstanding job of reducing auto theft using very different strategies. Bait cars are a focus of their strategy.
The lesson we can draw from this is that while legislation such as Bill S-9 is a good step, significant reductions in crime will occur only if we also invest significant resources in improving police tactics and police numbers and in implementing other evidence-based prevention programs.
Mike Sutherland, President, Winnipeg Police Association: I would like to thank Professor Linden. I should have phoned him before I left Winnipeg, as we are in agreement on almost all the points he made about the proposed legislation before you, particularly, I would like to emphasize, that auto theft is a violent offence. I can give you some examples of the most tragic situations that have occurred in Winnipeg.
As Mr. Linden mentioned, in 2007 a jogger was injured seriously by individuals who were specifically targeting not just him alone but also other joggers. Nine others that morning were targeted and either fled the area in fear for their lives or were struck in a less serious manner. Rachel Leost was killed after her van was hit by a stolen vehicle in 2007. James Duane, a cyclist, was also killed in 2007 after being struck by a stolen car operated by a Level 4 car thief. In 2008, a cab driver, Antonio Lanzellotti, was killed after his vehicle was struck by a stolen vehicle. We believe that there were two stolen vehicles involved, and they were essentially playing smash-up derby with one another on the streets of Winnipeg, operating recklessly with dangerous disregard for the lives and safety of anyone else on the roads at that time. Finally, in 2009, Zdzislaw Andrzejczak was killed when his Subaru was struck by a vehicle that was operated by a Level 4 car thief, again with a number of other Level 4 car thieves in the vehicle. It was a stolen Hummer, and it was being operated at speeds well in excess of 100 kilometres per hour.
In addition, there have been officers on foot as a result of being engaged in a variety of activities being deliberately targeted by car thieves. In an incident earlier this month an officer was struck and hospitalized. During a routine traffic patrol, he had observed a speeding vehicle, attempted to wave it over, was struck and hospitalized. Thankfully, the injuries were relatively minor in nature. Directly the next day, a suspect was involved in a break and enter using a stolen car. Although police attended, the suspect made good his ability to enter the vehicle and drove at one of the officers on foot. The officer was unable to evade being struck without discharging his firearm, and the suspect was fatally wounded as a result.
We have had numerous incidents where not only police have been targeted but citizens as well. Pedestrians on the sidewalk have literally had to dive out of the way to avoid being injured or worse by the operators of stolen vehicles.
I am here to tell you that some will not be deterred, despite our best efforts and despite immobilizers. I certainly do not want to be a how-to manual for any offenders out there, but let me assure you that there are methods employed by the determined that can preclude the immobilizer system. I had conversations with my colleagues in the stolen auto unit in Winnipeg today, and certain factory models are vulnerable to determined auto thieves.
In the situation we face now, there is a small minority in Winnipeg, but it is a dangerous minority. Let me illustrate for you how prolific it can be for even small groups. I would like to thank my colleagues back home who, because of their duties, are not always permitted the liberty of being able to testify before you. I am sure they could do a much better job than I could, but I will do my very best to do them justice.
The Chair: You are doing fine.
Mr. Sutherland: Thank you very much, Madam Chair.
I can take you to a single offender who had a predilection for 1998 Windstar vans. Before he became active, in a period of five months, there were four thefts of that particular model. However, once he became active, from January 1 to May 18, 2007, a total of 109 Windstar vans were stolen. From May 1 to May 18 of that year, 31 were stolen. This individual was arrested on May 18, and from May 19 to June 5, there were absolutely no Windstar vans stolen in Winnipeg.
As I said, some have learned to bypass factory-installed immobilizers. Twelve days prior to the arrest of this particular group, 39 of their targeted vehicles were stolen, and 12 days following the arrest there were only four.
Winnipeg has an infamous family. I will not give names as there are allegations before the courts currently, as well as previous allegations involving youth members who were accused. In total, they have been charged with 85 stolen vehicles, 102 charges, including driving offences, flight from police, dangerous operation of a motor vehicle and mischief endangering life, as well as 118 charges of breaches on various court orders and 14 charges of robberies and break and enters.
The Chair: One family?
Mr. Sutherland: That is one family. This is an allegation, not proven in court, but I can tell you that one member of this same family, who has an electronic monitoring bracelet, is alleged to have been operating a vehicle last night at 2 a.m. at about 10 kilometres per hour. Why so slowly? It is our belief and that of my colleagues that a dangerous behaviour is exhibited by some of these determined thieves where they will look to engage police with a sort of baiting tactic. Because they are on GPS and travelling slowly, we can track them. When police arrived in the area, the vehicle rapidly accelerated to speeds in excess of 120 and 140 kilometres per hour, at which point our units abandoned the chase out of concern for public safety. They were eventually apprehended with the use of our canine tracking unit and some other response units in the area.
Again, this illustrates the situation for us. Sometimes electronic monitoring and other forms of community release can be effective, but sometimes the deliberate and very determined offenders will modify their behaviour. They know that sometimes during the day they are allowed specific freedom, so they will engage in certain activities while they are "less monitored" than at night, when they are supposed to be in their homes and under absolute curfew during those hours.
The difficulty our members have — and the good professor alluded to it — is that the number of curfew checks required to deal with these individuals and ensure they are adequately monitored is very expensive because of the hours required by police personnel. The difficulty is that the police can monitor and can stay on top of them as best they can for a week or two, until these individuals decide to go right back to it; and when they do, the consequences can and have been fatal.
With respect to what we are asking for, I know that a bill like this has in some form been in the conception or discussion phase since 2005, I believe. We are hoping that soon auto theft will be recognized as a stand-alone offence. Where I do mildly disagree with my companion from Winnipeg is that, as a police officer, I can tell you that with court- based precedents, when a sentence at the low end of the scale is given, occasionally it tends to be adopted or to become more and more the norm. In 23 years of policing, I have seen that offences such as home invasion and robbery started where individuals would be looking at 12 to 14 years for a home invasion and robbery, and that has slid down to five to eight years unless there are extreme, egregious circumstances.
If I had my druthers, I would like to see auto theft considered as a violent offence because it is simply not the same as stealing goods of a certain value. These vehicles are being operated as weapons. There are circumstances where these individuals have deliberately put objects on the accelerator to weigh them down and launch them into the streets or into parkades. Our officers are trying to stay on top of them, but when bail is provided or when the sentences are relatively short before the individuals are back out again and deliberately reoffend, it becomes a huge frustration. You feel like you are running for all you are worth, but you are on a treadmill and making no progress. When lives are lost and innocent citizens are killed, and their families are devastated as a result, you feel absolutely useless as a police officer and a peace officer in terms of the duty that you were sworn to perform.
While it may not be perfect, this is a positive step and long overdue, in my view. From Winnipeg's perspective, I think we are losing the designation of auto theft capital of Canada, which is wonderful. However, when those auto thefts do occur, even on a more limited basis, we may face significant tragedies as a result. Winnipeg's problems do not tend to stay Winnipeg's problems for very long. Sometimes Winnipeg's offenders go to Edmonton after they are released from Edmonton maximum security or other institutions in other areas, and they make their home in Edmonton, Calgary or other metropolitan areas of Canada. Although we may be at the point of the spear now, I hope that in this case, by enacting laws such as these and bringing them to fruition, we can prevent the types of tragedies that have occurred in Winnipeg from happening in other jurisdictions.
My firm belief is that there are those who will not change their behaviours. Some of these individuals started out as youths but are now moving into adulthood without any sign of change. Without meaningful consequences for deterrence, I am not sure what will happen. Each day these individuals are not in custody, they represent a significant danger to the public.
Senator Wallace: Thank you, gentlemen, for your excellent presentations.
Both of you gave us a graphic illustration of the realities of joyriding and the threat to citizens that auto theft can lead to. This is what we need to hear. We have to know the reality on the street, and you described that graphically.
I am thinking about your association and the bill we have before us. I take from what you have said that you are supportive of the bill, but I will ask you to comment beyond that. I am sure you are aware that the bill does create separate and distinct offences that deal with auto theft: the theft of an automobile or a vehicle; the alteration of the vehicle identification number, VIN; trafficking in stolen vehicles and stolen vehicle parts; and the importation and exportation of stolen vehicles.
In that menu, what is it about the bill that appeals to you or that you see as advantageous for your purposes?
Mr. Sutherland: I will talk about the present and then about the future. I will answer in two parts, if I may.
In terms of the present, it is a stand-alone offence, so it is distinguished from thefts of other property and can be dealt with more severely. The bill provides for mandatory minimums, which would be of immense assistance, even giving our officers a six-month break from some of the top 10 offenders.
In terms of the future, Winnipeg has shown there is no shortage of those who could be recruited for the purpose of organized crime in the future. Right now we have a high recovery rate, but with the involvement of organized crime, we could see a scenario where these individuals will be exploited or used by organized crime groups to make stolen vehicles more profitable.
Senator Wallace: Professor Linden, in your presentation you indicated that you have been lobbying for this legislation for some time, and I think generally you are pleased to see that it is here. I certainly heard some of the improvements that you would suggest.
Again, you have zeroed in on the need to have auto theft defined as a separate offence. We have heard from other witnesses why they believe that is important. Could you expand on that from your perspective? Why do you see the creation of a separate offence as beneficial?
Mr. Linden: I have been the chair of the Manitoba Auto Theft Task Force, and one of the members has always been a Crown prosecutor. The Crown prosecutors tell us, particularly when we have this serious problem, that they would feel they had more persuasive arguments to put before a judge if this were recognized as a separate offence rather than being lumped in with other kinds of theft.
As Mr. Sutherland mentioned, taking something that has the potential of killing someone is not like stealing a big- screen TV. Highlighting it as a separate offence points out that auto theft does have those characteristics. I would like to see us go beyond that, to have auto theft defined as a violent offence because of the potential harm that has been done. Having auto theft as a separate offence is one step, and I would like to see it go to the second step.
Senator Wallace: Professor Linden, in your presentation it seemed that you were zeroing in on joyriding and the dangers it can create for our citizens. One of the significant aspects of the bill, though, is to focus as well on the activities of organized crime as it relates to auto theft and trafficking in stolen autos. I did not hear you make any reference to that. You spoke about the strategy you have developed, which has been extremely effective, and that is tremendous, but how does organized crime fit into your experience, and does it relate at all to the successful strategy that you have been able to implement?
Mr. Linden: A number of the young offenders involved are members of gangs, but this is not really a part of organized crime. There would be no point to it. The occasional vehicle gets used for dial-a-dope dealing, but they are virtually all just abandoned. That is speaking from a Winnipeg perspective.
If I were speaking from the perspective of people in Montreal, then the aspects of the bill that deal with things like the VIN and exportation would be more useful. My broader contacts with national people involved in auto theft reduction suggest that they would value those parts of the bill very highly.
Senator Carstairs: Thank you for your presentations. Professor Linden, you spoke about the need to make this a violent crime. It is very clear from Mr. Sutherland's testimony that many incidents are violent, but not all are. Are there not other charges, say vehicular homicide, with which these people could be charged in addition to theft of an automotive vehicle, instead of making it a violent crime?
Mr. Sutherland: The difficulty with respect to the Criminal Code is that it is an intent-based scenario. Therefore, the best you could hope to achieve in a practical term would be, perhaps, criminal negligence.
However, for the very first time in Manitoba, as a result of the Andrzejczak incident I referred to earlier, the Crown has moved to a manslaughter charge. The problem is that it is very difficult to prove intent when the intent may have been simply to go joyriding or something of that nature.
I might also add that stolen vehicles are used not just for joyriding but also to commit other types of offences, such as break and enters, robberies and even drive-by shootings. Although not 100 per cent verifiable, there is a correlation in the graph between break and enters and stolen vehicles. When they decline, they do it on a one for one relationship.
Therefore, there are, but they are very difficult to prove. Just by the nature of the vehicle and what it is capable of, it may not be intended, but the consequences are still just as devastating.
Senator Carstairs: Maybe I can get Professor Linden to answer this one: You talked about the importance of resources. We have had no indication from government that any resources will flow as a result of the passage of this piece of proposed legislation.
I think you mentioned that Manitoba Public Insurance put $52 million into this successful project. Clearly you are of the view that resources must follow if you are to deal with it; it cannot just be identifying vehicle theft as a separate Criminal Code violation. It must have some resources for the police and others to make it work.
Mr. Linden: Absolutely. The key to crime reduction, from a legal perspective or from the perspective of using the law, is to enhance the certainty. We had such success because it was certain that when these kids broke curfews or got into trouble while they were in the community under conditions of release, they would be apprehended. That certainty only came from the fact that we were resourced, with extra police officers being assigned to the stolen auto unit and a 15-person auto theft unit within probation services. Without those resources, this would have had no impact.
To indicate how critical it was, one of Mr. Sutherland's colleagues, Kevin Kavitch, who was with the stolen auto unit, did an analysis that demonstrated the correlation between a number of these high-rate offenders who were on the street on any given day and the number of cars stolen on that day. We took that to the Minister of Justice at a time when our program was failing — we had had reductions and it bounced back up again in 2006. The minister then invested more resources and Manitoba Public Insurance started the immobilizer program. Once we got to the tipping point, the rates started to decline very dramatically.
Even a modest increase in resources was not sufficient. It was not until we got them to an appropriate level that we were able to have an impact on crime.
Senator Carstairs: Detective Sutherland, I have one more brief question. There is some disagreement between the two of you regarding mandatory minimums. I happen to accept Professor Linden's philosophy on this. Unfortunately, my experience in doing some review of other bills with mandatory minimums is that the judiciary picks the minimum, and that becomes the basis for just what you were arguing against. If there is a mandatory minimum, that is what the judge will give. The mandatory minimum in this legislation is not very strong.
Mr. Sutherland: With mandatory minimums, baby steps might be the best way to proceed. From a personal perspective, I think in certain circumstances sentences should be much greater than the minimum.
I would hope that the judiciary would look at the circumstances and set the bar somewhere above the minimum, but at the very least we are sort of guaranteed that the minimum will occur for repeat offenders. With the Winnipeg experience, as Professor Linden alluded to, when 40 per cent of our top 50 were out, there was a minimum of a 20 per cent increase. Sometimes the increase in thefts went as high as 60 per cent.
We know that a small group is responsible for a wide variety of crimes, statistically. The issue for us is that we needed this legislation a long time ago. I am hesitant to be critical of the first step in it, and I am hopeful that if there are improvements to be made, we can do those down the road.
Where we are at now is that, as a simple property crime, it can be lumped in with property crime, and the sentences can be handed out on the basis of property crime. Unfortunately, six months for even three, four or five offences for property crime simply does not exist.
[Translation]
Senator Carignan: I have a question for Professor Linden. With regard to your study, which was quoted by Statistics Canada, I asked a question earlier concerning young people's motives for stealing vehicles. It is my understanding that, given the success of the methods that were used, the elements that you identified were probably the motives. Did your study focus solely on Winnipeg or on Canada as a whole?
[English]
Mr. Linden: The study cited there dealt only with Winnipeg. However, we did the study in a number of other sites. Those were done by other academic researchers. We found similar results, but we were focusing only on the youth population.
One of the main differences we found was that a study done in Montreal showed that more of the young people there were involved in stealing for profit as opposed to for joyriding. Again, that reflects the differences discussed in the earlier session between organized crime being involved versus kids out thrill seeking.
[Translation]
Senator Carignan: I also want to reconcile the numbers and make sure that I have understood correctly. In your presentation, Professor, you note a reduction of 10,000 stolen vehicles in Winnipeg, i.e., a decrease of close to 80 per cent between 2007 and today; is that correct?
Mr. Linden: Yes.
Senator Carignan: I would like to be clear on the numbers, because they are quite impressive. According to Statistics Canada, there were 14,000 vehicles stolen in all of Manitoba in 2007. That number was cut by 10,000 in Winnipeg alone, which implies that there are almost no more vehicle thefts in Winnipeg. Am I mistaken in my assumption?
[English]
Mr. Linden: We have reduced it by about 10,000, but we will still be among the top half dozen when the 2009 figures come out from Statistics Canada toward the end of July. We will still be in the top three, four or five cities in Canada because we were so high that we can drop by 80 per cent. That is 80 per cent in completed thefts, 73 per cent overall. Also, the 73 per cent overall figure gets us into 2010. Those statistics will not be officially released until the summer of 2011 because of the lag in reporting.
[Translation]
Senator Carignan: And so that continues to be a problem in Winnipeg despite such a significant reduction and the three elements that you explained were part of a strategy to reduce vehicle theft, including the supervision of level-four youth, which is something I have never seen in my entire life. That is the first time I hear about such intensive supervision of people who are placed under conditions of release. Would minimum sentences not be the next step? Do you have anything else in your bag of tricks in terms of another solution?
[English]
Mr. Linden: No, because I do not think there will ever be minimum sentencing under the Youth Criminal Justice Act. Therefore, I do not think we will evolve to that for the people who are the most difficult for us. As Mr. Sutherland indicated, some of them have gotten older, so they are above 18 and committing the offences as adults. They are getting longer sentences and being taken off the street for longer periods of time.
It is hard to know what to do with kids who simply do not care whether they are caught. In fact, they are deliberately trying to draw police into chasing them, as in the example Mr. Sutherland described of the alleged occurrence last night. Other than custodial dispositions, there does not seem to be much that can be done with them, with the proviso that while they are in custody, there should be programming to try and help. Otherwise, we will be chasing these kids for the next 30 years.
[Translation]
Senator Carignan: Have you further studied the link between car theft by youth and organized crime? Since you were able to reduce car theft by 80 per cent, the remaining offenders must have enough criminal experience and be sufficiently organized in order to be part of a system. Given the persistent theft rate, have you studied the main causes of vehicle theft in 2009, excluding the share of thefts attributable to joy rides?
[English]
Mr. Linden: Are you asking what is causing the kids to get involved now?
[Translation]
Senator Carignan: There are now 10,000 fewer vehicle thefts. It appears that the methods used were targeted primarily at joy riding and youth; so I presume that the remaining vehicle thefts today in Winnipeg are carried out by more hardened criminals. Have you studied the criminal behaviours of those people?
[English]
Mr. Linden: They are more experienced. Back in 2004, which was when we were at our highest, we had kids as young as 10 stealing vehicles. You asked a question before about the thrill of stealing a Dodge Caravan. The reason those were the best targets was because Chrysler designed a vehicle that a 10-year-old with a screwdriver could enter and start as quickly as you and I could with a key.
As the program took hold, and as the immobilizer program came in, it became too difficult for those young children to get involved. The average age has been increasing. As an example of the targets now, a 2004 Cadillac Escalade, a very high-end vehicle, has a very bad immobilizer in it — a Passlock II immobilizer. Kids 15 and 16 years old with some sophistication are able to start those and drive them around.
The pattern has been that we do not have nearly as many young people. We have older people. They still come from the same families, the same areas and backgrounds, the same lack of education — bad families, the picture of troubled youth all over.
The Chair: Thinking of school for crime, I should warn you that we are being televised.
[Translation]
Senator Carignan: To tie in with our study on DNA data banks, I would say that is almost genetic.
[English]
Mr. Linden: If I could respond to that, the probation services did a study where they looked at interrelationships between all of our high-rate offenders. They found that three extended families — and by family I mean eight different last names, so there are cousins, not just brothers and sisters — made up something like 60 per cent to 70 per cent of our highest-risk auto theft offenders. Again, that suggests that programming focused on trying to do something with those families is necessary if we want to stop them from being recruited to crimes like auto theft.
Senator Baker: I would like to direct my questions to Detective Sergeant Sutherland. First, I imagine you started as a constable and you were working for years at the street level; is that correct?
Mr. Sutherland: I did, actually. I started right on the street. I was one of the two members from my recruit class who elected to walk the beat.
Senator Baker: How long were you a constable before progressing to a sergeant?
Mr. Sutherland: I believe it was 16 years.
Senator Baker: That is a lot of cases in case law.
Mr. Sutherland: Quite a few.
Senator Baker: As far as Senator Carstairs' question is concerned, it is true, is it not, that if a vehicle were to approach you in a manner that would suggest that you were in danger of being hurt, you would charge that person with assault with a weapon, would you not?
Mr. Sutherland: It would depend on the circumstances. We would have to be able to elucidate to the court, with a preponderance of evidence beyond a reasonable doubt, that that was the intent of the individual — that the individual was not just driving down the road but was deliberately targeting us. Sometimes that is not quite so easy. There are some pretty skilled defence counsels on the other side of the equation.
Senator Baker: Absolutely, and we will be hearing from one in a few moments; he is probably in the room — Mr. Phil Downes, who is a representative of the Canadian Council of Criminal Defence Lawyers. He is famous before the Court of Appeal for Ontario. He is listening to you now, and he may disagree with some of the words you have to say.
Mr. Sutherland: I would not doubt it. It probably would not be the first time.
Senator Baker: On your comment concerning home invasions, you are right that at the beginning with the lower courts, the provincial courts and the appeals to the supreme courts, it was 10, 12, 14 years in some cases. However, when it got to the Court of Appeal level, Alberta set the standard of eight years. I wanted to put that on the record, because those things are not included in the Criminal Code; it is a judgment of the court. The appeal courts across the nation set the standard, but you were absolutely right on the progression up to the Court of Appeal.
Mr. Sutherland: If I could comment on that briefly, that also affects pleas. I have investigated a number of home invasion robberies. For the first few I did, there were pleas — in one case, for 22 years, and in another case, for 14 years. However, when the scale began to slide in terms of what had been done by other courts, the pleas were no longer for those types of areas either. Once the slide starts, regardless of where it starts or where it is initiated, the difficulty is that pretty soon everyone is down near the bottom of the playground.
Senator Baker: My only point is that it was not exactly a slide. You do not establish a standard until you get up to the Court of Appeal, and that is what happened in the particular case of your illustration.
Getting to my main question, some of the members from the government side have been asking you questions about how great the proposed legislation is. You think it is a good piece of proposed legislation. You do not want to criticize it, but you did say this, and I wrote it down. You said that although it is not perfect, and those were your words, you support the bill.
Mr. Sutherland: I do.
Senator Baker: I am looking at the bill, and I suspect that when you say it is not perfect, you might be referring to the defence that is included in the section having to do with the alteration of vehicle identification numbers. Is that correct?
Mr. Sutherland: My biggest concern is the categorization as still being part of the property catalogue of offences. The other scenario you referred to is a difficult one all around. I do not have extensive experience in auto theft. That is not my background in policing. However, provisions currently in the Criminal Code, such as theft and possession of goods obtained by crime, refer to the same language, talking about without lawful excuse and knowing. Those are all difficult. After Charter challenges and the presumptive legislation around knowledge, it is difficult to get around that sort of situation because it is a high evidentiary burden for police officers to bring to the court. Candidly, I am not a legal expert, and I freely admit that. I am not sure, in the current framework of the Charter and the way the Criminal Code exists, that there could be significant improvements in those areas. I think the fundamental illustration is the mens rea, the intent, the knowledge of evil deeds, I guess, as one way of putting it.
My biggest concern is really this: At this point, I will embrace any legislation that distinguishes auto theft as a stand- alone offence, just given the struggles we have had in Winnipeg. I would like it to be considered along the lines of a property offence as Professor Linden has indicated, and that is the biggest improvement I would like to see. The bottom line is that I am sure there are much smarter and more studied and experienced people who could deal with that particular scenario. My limited basis of the Criminal Code is that those elements already exist in other legislation. I am not sure, in drafting a new bill, that we would be able to draft a whole new scenario that would not be subject to significant Charter challenge.
Senator Baker: Just so we are correct on the record, yes, proposed new subsection 353.1(1), in clause 4 of the bill, does say that "Every person commits an offence who, without lawful excuse," and then it goes on. However, then proposed new subsection 353.1(3) says that despite subsection (1), it is not an offence to wholly or partially alter a VIN if you are doing a modification on a vehicle or if you are repairing a vehicle. That secondary defence — without reasonable excuse or lawful and justifiable excuse — is in a lot of legislation, but are you aware that some police forces are objecting to that additional defence and asking us to remove it?
Mr. Sutherland: I am aware that concerns have been expressed, by the OPP in particular. However, I am not certain whether it has to do with that particular section.
Senator Baker: It does.
Mr. Sutherland: I am not a mechanic. In fact, I am not very good with my hands at all. I do not know what legitimate reason there would be to permit alterations under repair sections, so I cannot provide an educated response to that. There may be legitimate ones. I am just not aware of what they are.
Senator Baker: I imagine you will encounter it. If the bill passes, you will have a case like that.
Senator Runciman: Thank you for coming all the way to appear before the committee today. It is very much appreciated.
Mr. Sutherland, have the passage of the Youth Criminal Justice Act and the emphasis on diversion impacted your ability to deal with auto theft and with the folks who fall in that category?
Mr. Sutherland: Diversion works some of the times. Unfortunately, it does not work all of the time. The difficulty I alluded to before is simply that unfortunately some individuals are just so committed to a pattern of behaviour that I am not sure what, if anything, anyone could do to have them stop these dangerous behaviours. That is why this bill is so important. If someone continues to repeat and offend in the same fashion over and over again, we can finally say, "Well, that will be the end for a significant period of time."
Senator Runciman: Taking a different view than the professor on minimum sentences, your experience as a front-line officer is frustration with the revolving door. We have heard this from police officers, not just with auto theft, of course, and we heard about courts and about abuse of discretion. Has that been your experience? It is a frustration on the front lines? You deal with these folks, and then you see them out on bail or on the street the next day.
Mr. Sutherland: There is absolutely no doubt. Especially when dealing with the volume of charges that I mentioned with respect to a particular family or individual, you feel like you are on a treadmill. The difficulty is that at a bare minimum, there has to be some type of meaningful consequence. I agree with the professor that, for some people, a custodial situation with programming would be the best, because they would be out of the environment that reinforces that behaviour. However, without custody, you will not even reach them. They will be so entrenched in the support systems for that bad behaviour. I am all for programming, if it works, but at the end of the day, my career and my job have been about protecting lives and property, and when there are those who continue to endanger repeatedly, we have to put a stop to it.
Senator Runciman: You talked about diversion working some of the time, and I am thinking primarily of the Youth Criminal Justice Act. The professor is not optimistic about minimum sentences being applied under that act. I guess if you see a repeat offender under that act, you would support the need for it, as long as programming was available to address the situation as well. I gather you would, as well?
Mr. Linden: As a general policy, diversion is great for kids, because most of us, including myself, move in and out of doing bad things when we are little and we do not need to be locked up forever. However, when you are dealing with kids who get into a state as serious as our Level 4 auto theft offenders, I do not think we can treat them the same as we treat every other young person.
Senator Runciman: In your experience, what age category is involved with the violent offences involving car theft? Traditionally has it been young offenders who use a vehicle as a weapon?
Mr. Sutherland: Traditionally, it has.
Senator Runciman: Other than a general change to this proposed legislation, is there any way this issue could be addressed through changes to the Youth Criminal Justice Act?
Mr. Sutherland: I do not know whether it could, candidly.
Senator Runciman: I am not sure what the broader implications would be with respect to what you are suggesting.
Mr. Sutherland: There may be, but the problem is it could have occurred, but now we are moving to a situation where some of these offenders have now graduated to being of adult age. That, to me, is the difficulty. Would I like to see it included in the Youth Criminal Justice Act? Yes, I would. The problem is that there is vulnerability as well. Organized crime, even at the street gang level, which is not supremely sophisticated yet, will still use young offenders to carry out a number of their various tasks with the full knowledge that there are no consequences under the Youth Criminal Justice Act. Again, it reinforces a scenario whereby these young people can be led by those that they admire into doing terrible things, and you cannot get them out of that black hole because bail is easily granted and custody is the last thing imposed.
The bottom line is that the enemy of the possible is the perfect. There are few perfect things in this world. I am happy with this as a good, solid first step.
Senator Joyal: Professor Linden, would you tell us your background as a professor? You have claimed you are not a lawyer and that you do not have a legal background, so I understand that you are not in the law faculty at the University of Manitoba. Could you tell us your professional background as a professor?
Mr. Linden: I have a PhD in sociology and have been teaching criminology for my entire career.
Senator Joyal: It is on that basis that you testified today?
Mr. Linden: Yes.
Senator Joyal: May I return to your brief, where you say:
I am not a proponent of mandatory minimum sentences and see no need to use them in this piece of legislation. There is no evidence that mandatory minimums deter crime and I see no need to take away judicial discretion for those who commit this crime.
Let me put a question to you that might be difficult to answer. Do you have any analysis or statistical data that shows that the judicial discretion that has been used in the past was badly used, in other words, that the court needed to be — I will use a bad word — framed in that kind of crime to ensure that the punishment meets the level of the nature of the crime?
Mr. Linden: Related to auto theft?
Senator Joyal: Yes, we are talking here about auto theft.
Mr. Linden: Not insofar as it would affect the issues we have been dealing with in Winnipeg, again because it is youth, to whom the sentencing dimension of this proposed legislation would not apply. Anecdotally, there are always cases of someone who commits a crime and yesterday just got out on bail, so obviously judicial discretion is not perfect.
One problem with mandatory minimums is that you have Crown discretion. When they looked at the impact of mandatory minimum sentences for other kinds of offences, they found that the actual sentencing outcomes do not really change very much because they are adjusted at the Crown level rather than by the judiciary. No, I do not know of any statistical evidence that has shown bad consequences because of failure to sentence long enough.
Senator Joyal: We are always provided the argument that the court is too lenient; it does not take the crime seriously; and it just gives the minimum, a sentence that, in the eyes of the public, does not seem to fit the nature of the offence.
In your studies, reflections and investigations, is this another bias? Crime today is very media-focused, as you know. One case makes the headlines and then open lines and the yellow papers and everything. They are repeating that offence or that crime forever, and then it becomes the perception, and the perception becomes the reality, and the reality is that the justices are not strong enough on the punishment and that we have to give them the signals that they have to be hard on crime.
I am trying to understand your professional point of view, which is criminology, which you said you have done all your life. Have you had an opportunity to reflect on what I have just outlined? Could you enlighten us?
Mr. Linden: That is why I was asking you whether the context is auto theft. I have looked at many studies of mandatory sentencing policies. The most notable one would be a paper I just read dealing with the consequences of California's three strikes law, which is about as draconian and expensive a mandatory sentencing regime as you could put in. The studies of that, and there have been well over a dozen, have shown that the three strikes law had no impact, in the sense that California's crime rate did not decline any faster than the crime rates of states that did not have such a law. If you look at counties where the three strikes law was pursued aggressively, crime rates did not drop any more than in California counties where it was not as pursued as aggressively.
The Department of Justice did an evaluation of firearms legislation in Canada that showed no impact. Gang homicides have not gone down as a result of the five-year minimum for gun crimes in Canada that was passed a number of years ago. There really is no evidence that suggests that mandatory minimums work.
My real objection to mandatory minimums is that they give the appearance of doing something about crime. You can say we are cracking down by changing the mandatory minimum for gun crime to five years. It actually used to be four years, so it was not that big a transition, but it was sold as a five-year mandatory minimum. That gives the appearance that this has been taken care of. In fact, if we really want to reduce gang violence, which is what that was targeted at, we have to do many things other than tinker with the law. The law is not sufficient.
Senator Joyal: The habitual criminal, such as the situation that Detective Sutherland described of the individual who waits until two o'clock in the middle of night to go out and provoke the police, someone like that, to me, has a psychological problem, those you described in the fourth tier of your classification. Even though you threaten to put them in prison for six months, I do not think it will have a big effect on them. They are not reasonable people.
Mr. Linden: We still have these Level 4s out committing crimes, but we have fewer of them. We have data where we have tracked these kids. Many of them have moved out of offending. Many of them, once they have been put in the Level 4 category and placed under intensive supervision, have in fact stopped repeating their offences. The key is the term that I used in the paper, focused deterrence, where rather than passing a law that will apply to everyone, we say to individuals, "If you violate this law, if you step outside this line, we will come after you and arrest you." For many people, that is enough deterrence.
However, the problem we were addressing earlier is kids, like the ones who commit crimes while they are on electronic monitoring. There are people who are not deterred by that. Again, the fact that we had a 73 per cent or 80 per cent reduction in completed auto thefts suggests that a focused deterrent strategy works. It has worked in the U.S. The Boston Gun Project I mentioned dropped gang homicides in Boston by over 60 per cent almost overnight because individuals were targeted.
We are now adopting a strategy in Winnipeg where we have identified the 50 most violent gang offenders. We are calling them into a meeting to say we have zero tolerance and that we will be checking on them. We also offer them some off-ramps from the gang life with training, education, therapy, or whatever it is they need.
The problem with laws in general is that they do not necessarily penetrate to the individual, because most crimes do not result in arrests. It is estimated that 15,000 cocaine transactions result in one conviction in the U.S. for trafficking in cocaine. For the average cocaine sale, it does not matter what the penalty is because the person will not get arrested. The poor individual who does get arrested is surprised that he is going to get 25 years.
What we want to do, and what has been successful in these focused deterrence programs — and some have been directed at selling drugs as well — is look the individual in the eye and say, "We are watching you." Then you have to keep those promises. You have to make sure that if they do step outside the line, they are arrested. Deterrence works if it is certain. Deterrence does not work if it is just off vaguely in the distance somewhere.
The Chair: Colleagues, we are now well advanced in overtime and we have more witnesses to hear from, so I will ask Senator Joyal if he can conclude his line of questioning. Then we will have very short supplementaries from Senator Carignan and Senator Rivest, and at that point I am afraid I have to cut off the list with these truly fascinating witnesses.
Senator Joyal: I understand from your presentation that it is a more tailored approach to the individual, and you believe it is more effective than simply putting them all in prison. However, is that not too expensive? I see the amount of money you have put in there, $52 million.
Mr. Linden: Most of that expense was the immobilizers. However, the other side is that we have paid all that back, and we are now saving over $30 million a year. Auto theft is a unique kind of offence because we have the immobilizers.
These programs are not hugely expensive. We are just mainly taking resources — say in our gang program — that already exist, and instead of trying to spread them broadly across the universe, we are focusing them on a small number of individuals who are most responsible for crimes.
I think this would really apply to situations like impaired drivers, where we know that people who are chronic alcoholics cause an undue proportion of the damage. If we focus on them rather than on stopping the general population, things improve.
Based on what is happening in the world of criminology now, this targeted deterrence seems to be the direction that programming is going. The United States Department of Justice has adopted it as one of their model programs.
Senator Joyal: I am sorry to be cut. I have many more questions for you.
Mr. Linden: I am happy to answer by email anytime.
The Chair: We would happily keep you both here all evening, but we cannot do that.
[Translation]
Senator Carignan: Professor Linden, you quoted from studies done in California on minimum sentences. People often quote those studies, always the same ones. Have researchers measured what the crime rate could have been were it not for minimum sentences? We are told that the crime rate did not drop, but perhaps minimum sentences prevented it from rising. Are there any studies on that issue? Could minimum sentences — like those for drunk driving — together with an effective advertising campaign — like the one against drunk driving — not be used as targeted deterrents, which you appear to favour?
[English]
Mr. Linden: I am not sure I understand the question about inebriation.
[Translation]
Senator Carignan: There are minimum prison sentences for re-offenders in the case of driving under the influence of alcohol.
[English]
Mr. Linden: I am not sure how to relate that to what I have been talking about. However, I will go back to the California studies. Under the same conditions, in the same state, within California, some of the counties pursued the three strikes policy more aggressively than others. If the three strikes policy was effective, one would expect that rates in the aggressive counties would go down more significantly than the rates in the counties where three strikes laws were not used as much. That was not the case.
Similarly, if we compare states, such as New York, which did not have a three strikes policy, with California and look at crime rate declines, we see that, if anything, crime dropped more rapidly in the states without three strikes legislation. That is the kind of research that is available on that policy.
[Translation]
Senator Boisvenu: Yes, but they have added 10 per cent more police officers in New York.
The Chair: Senator Carignan, I said a short question.
Senator Carignan: Very well, I do not want to argue with the witness.
Senator Rivest: I share your opinion on minimum sentences. Aside from limiting judicial discretion and creating an "automated teller" type of justice system, you do not believe minimum sentences are a deterrent. So why do you believe there are minimal sentences in our laws? Who are they for? Criminals or public opinion?
[English]
Mr. Linden: I think they are addressed to public opinion, to make it look like the government is doing something about crime. If we look at the California case, it became politically impossible for any politician to oppose the three strikes laws, even though they knew that the cost would become catastrophic.
California went from a state that had perhaps the best university system in North America to a state that now has the biggest prison system in North America. Its higher education system is in crisis from lack of funding, in part because of the billions of dollars a year taken up by the three strikes laws.
Again, it is not a matter of being soft on crime. I think the beauty of the focused deterrence strategy is that you can take a tough-on-crime perspective because you are being tough on those offenders who are most likely to commit crimes by ensuring they are apprehended and incarcerated for any violations of the law they commit. It is certainly possible to be tough but also to be more sensible in focusing your resources.
The Chair: Gentlemen, as Senator Runciman said, thank you so much for coming all this way to help us out. Both of you have provided testimony that was on occasion breathtaking and very helpful to us in our study of this bill. We are truly grateful.
Mr. Linden: Thank you for the invitation and the questions. It was fun.
Mr. Sutherland: Yes, thank you, madam chair.
The Chair: We now welcome, from the Canadian Council of Criminal Defence Lawyers, Mr. Phil Downes. Welcome to the Senate. We are eager to hear your statement.
Phil Downes, Representative, Canadian Council of Criminal Defence Lawyers: It is a pleasure to be here, thank you. Good afternoon, senators. I bring you greetings today from my colleague, Bill Trudell, who is the chair of the Canadian Council of Criminal Defence Lawyers. We are extremely honoured to have the opportunity to appear before you and help with the work that you are doing today.
As many of you know, our council was formed in 1992. The Honourable Kim Campbell, then Minister of Justice, offered her encouragement to the establishment of the council. We try to offer a national perspective on criminal law issues, with a view to preserving the constitutional principles we see as protecting us all and seeing that the criminal law develops in a practical manner that is consistent with the principles of fundamental justice. We are grateful to be here today as you study this bill.
Much of Bill S-9 I do not intend to say anything about, subject to your questions. I would like to focus my comments on a couple of areas. One I will call necessity, and the other is minimum sentences. Having heard some of what your previous witness said, I expect I may be duplicating some of those comments.
First, then, is necessity. This is the Criminal Code of 1961; it is 680 pages long. This is our same Martin's Criminal Code today; it is 1,650 pages long — almost two and a half times the size. I borrowed these from Mr. Trudell because he had a 1961 code.
In any event, the Criminal Code continues to grow in size because there seems to be a belief that responsible government is simply about passing one new law after the other. When it comes in particular to the Criminal Code, we seem too often to behave in a reactionary and what I think is often an irrational and simplistic fashion. There is a problem, so pass a law, make a new offence, add some jail time and problem solved. It is one amendment after the other, and the Criminal Code will keep on growing and weighing down our briefcases.
With the greatest of respect, we think this bill is one of the more obvious examples of this tendency. As you know, at its heart, this bill is about creating three new offences. I will be happy to elaborate in response to any questions you have, but it does seem to us that adding these new offences will have little practical effect other than increasing the statistics on how many charges get laid by the police.
In the specific case, looking at the bill in detail, we ask whether it is really necessary. Is it really just about increasing the sentencing for an offence that already exists, that already addresses the criminal conduct in question?
My guess — and I think you may hear differently from the next witness, Crown counsel — is that many charges under this new offence of theft of an automobile may end up, depending on the way the legislation is operationalized by the provinces, getting plea bargained to a lesser offence to avoid the mandatory minimum simply because our courts, Crowns and judges are already weighed down with one new offence after another, one minimum sentencing after another, one new policy after another. The volume that we are putting through our courts is simply unmanageable. I am not sure there will be much disagreement about that. The vast majority of cases will be plea bargained in any event.
With respect to the offence of altering the vehicle identification number, I will ask a question, because I have not seen it referred to in the previous evidence I have read. Why is that offence not covered already under the offence of mischief to property under the Criminal Code? If it is simply about sentencing, if Parliament chooses to address the sentencing for offences that already exist, fine. However, why create a new offence unless there is a really good reason for doing it?
Similarly, with respect to the new trafficking offences, it seems to us that the current possession offences under section 354 are sufficient, particularly bearing in mind the provision in section 358: "Possession is complete when a person has, alone or jointly with another person, possession or control over anything . . . or when he aids in concealing or disposing of it."
In my submission, that, in conjunction with the law as it currently stands on aiding and abetting, might well be adequate to address the so-called middlemen that the bill purports to catch who previously had not been caught before.
It is our submission that, while this bill is no doubt well-intentioned to address a problem in certain areas, it is simply another law on the books, adding to the weight of the Criminal Code, allowing us to say we are being tough on crime and cracking down on this type of offence. However, the real impact will be minimal.
It is ironic that this committee has heard evidence that there has been a gradual and continual reduction in auto theft since 1996. Why are we passing laws to address an offence that, it seems to me, technological and police surveillance and investigation technique advances are making increasingly obsolete in any event?
The defence bar is not alone in these concerns. You have heard evidence previously from an officer from the Ontario Provincial Police, typically not afraid to address or support legislation tackling criminal activity, who told you that the new offence will have little effect on auto theft or on organized crime investigations. There may be differences of opinion on that, but I think his evidence, as I read it, was very interesting.
Let me then say something about mandatory minimum sentences. Senators, if you have heard me before, you have heard me say this before. I will not echo what the professor said — he said this more eloquently than I could — but it is our submission that mandatory minimum sentences have no measurable effect on crime rates. They are blunt instruments that fail to distinguish between low-level and high-level car thieves.
As I have said before to this committee, it is my experience that the overwhelming number of people engaged in criminal activity actually have no idea going into it what the penalty will be. The first thing they ask when they come into my office, or if I meet them in the jail, is "What will I get for this?" However, the risk of being caught does mean something to them. Therefore, empowering our police with more resources and the kind of technology they have would be useful. You see this in the reduction of car theft because of things like ignition interlock and GPS devices. Those are the things that really reduce crime, because people know they will get caught.
With respect to minimum sentences, most significantly I say this: Our judges in Canada are widely recognized as some of the most independent and skilled in the common-law world. We send our judges to other countries to teach the judiciary in countries such as China, Russia and Rwanda. We conduct judicial education, and we take pride in that. Our judicial appointments processes rarely, if ever, result in allegations of political interference or unqualified candidates. Yet we are seeing the steady erosion of judicial discretion by the passage of legislation such as Bill S-9 and the increasing tendency to use minimum sentences.
As an organization, we are profoundly concerned about that double standard when it comes to looking at the role of our judges.
Finally, let me say something about conditional sentences. I appreciate this is a submission that can be made elsewhere, if and when Bill C-16 is considered. We are also concerned about the gradual disintegration of the conditional sentence regime.
Clearly, there are people who think it has no place in our sentencing regime at all, but there are statutory criteria for imposing a conditional sentence that do take into account public safety. Curtailing judges' discretion in this area and with respect to this sentencing tool is, in our respectful submission, another sign that we do not have confidence in judges when it comes to particular cases. They are the ones who see the particular individual — the young person, the first-time offender — who comes before them. They can weigh all of the circumstances and determine what the appropriate sentence is. We think conditional sentences can serve the public interest in some cases, and judges and Crown attorneys are well- equipped to decide what those cases are.
I am grateful for the time given me, and I am looking forward to hearing your questions and responding to them.
Senator Wallace: Thank you, Mr. Downes. It is good to have you back again.
I have a couple of issues. I am sure you have been following the progress of this bill through this committee and have looked at some of the evidence. A significant purpose of the bill is to enable law enforcement to better respond to organized crime and its involvement in auto theft and the theft of auto parts.
We have heard about chop shop operations. I am sure you are well aware of them. Chop shop operations have become a sophisticated business. I believe we have heard that on average 400 automobiles a day are being stolen. The cost to taxpayers and insurance policyholders is in excess of $1 billion. It is significant, and something must be done to respond to the situation.
What about the issue of organized crime and its involvement in that illegal activity? From your perspective as an experienced defence counsel, what can you tell us about the involvement of organized crime in auto theft? Also, please make any comments you wish about Bill S-9 in that regard.
Mr. Downes: I certainly defer to the expertise of the police when it comes to the issue of organized crime. They are increasingly well-equipped to deal with it. One of the difficulties is what we mean by organized crime. Under the provisions, a criminal organization can be three people, with no other affiliation to a gang, such as a motorcycle gang or something else. Their purpose is to steal cars, generate money, and so on.
I have read the evidence. The evidence about the lower recovery rates being indicative of organized crime makes sense, because it is a lucrative business with high-end vehicles. I am sure there is a fair amount of organized crime, but I am not sure it always has the meaning we think of being gang-related, especially a Hollywood notion of gangs, if you like.
My difficulty is that I am not sure what this particular bill does to assist the police in tackling organized crime. It creates a new offence, and it adds that offence to the criminal organizations list. However, I would have thought that if that was an issue then the theft offence should already be in there. I have no problem with that.
I have looked at the evidence closely, and I am not sure what in this particular bill will allow us to better detect organized criminal activity. OPP detective Boyd's evidence was that it would not make that much of a difference, and they will often charge them with other offences, such as possession of stolen property, forgery, fraud and others. I struggle to see the meaningful connection in tackling organized crime.
Senator Wallace: In relation to the specific offence of auto theft, I have heard that having it as a separate offence will provide Crown prosecutors with much better information about the past record of someone appearing before the court. Right now, if someone is guilty of previous thefts, it could have been a television, an automobile or anything. It is not distinguished. From the evidence I have heard, having that specific offence of theft of an automobile will better enable the courts to understand the true track record of the person before them and respond in a more appropriate way in sentencing. At least, that is one justification we have heard.
Mr. Downes: I have seen that, and it is interesting. I would just say two things about that. First, I am not sure that our inadequate record keeping is a reason to create a new criminal offence. If someone is convicted of theft, the information about what they have stolen is out there. I am not sure that simply making it easier to keep track of that information is a principled justification for creating a brand new offence.
Second, there seems to be a notion that stealing an automobile is a particular crime that victimizes people. In my submission, all theft, and theft of many other things, is equally harmful to people. I am not sure what is so special about the car that makes it different. My laptop computer was stolen recently. That was tough. I would rather have my car stolen. I wonder whether, by picking on this offence, we are saying to judges it is more important in terms of victimization than other thefts. I do not see that as a good basis for creating a new offence.
Senator Wallace: In some of the evidence I have heard, victimization is one aspect of it, but the criminal enterprise that seems to be involved now and to a large extent controlling automobile theft is highly sophisticated and crosses over national and international borders. We have heard a lot of evidence about automobiles and parts of automobiles ending up in containers and going to international markets. That is my impression of the magnitude of it and the involvement of however we define criminal organization. Organized crime has become pervasive. The feeling I have heard expressed is that new tools and changes are needed in the Criminal Code to adjust to that reality. You may have some thoughts on the effectiveness of it, but to your point that it is only the victimization we would look at in Bill S-9, I would say it goes beyond that. I have heard that it is the nature of the criminal enterprise.
Mr. Downes: I understand your point. Again, I am not sure what in the bill allows the police to do their job better than they are doing now. If you want to talk about giving the police more resources to conduct counter-intelligence or surveillance or wiretaps on criminal organizations, I am sure they would be happy to have them, but how does creating a new offence that is already in the code but not particularized help them catch people better or prevent the crimes from happening again? That is the difficulty I have. I know you have heard evidence from police witnesses who will explain it, and I have not heard all of that, but that is my logical problem with it.
[Translation]
Senator Boisvenu: I will start with a comment on the size of the Criminal Code. If we went back to the Criminal Code we had 50 years ago, 50 per cent fewer lawyers would be working.
If we did that, as you seem to suggest, do you realize that crimes such as domestic violence, child abuse or drunk driving would be allowed today? The Criminal Code is bigger because crime is more complex and new crimes have been added, including domestic violence in large part. Thirty or 40 years ago, for a number of reasons, these crimes did not exist. Do you realize that the Criminal Code has gotten thicker, not only because government has acted but also because crime has gotten more complex and because society had no other choice but to get involved in certain areas such as domestic violence, child abuse and sexual assault?
[English]
Mr. Downes: I do not mean to suggest that is the exclusive reason for the growth in the Criminal Code, but in my submission it is a reason. The offences you referenced were there, but they were interpreted differently by the courts. I would say the common law has developed in relation to sexual assault, domestic abuse and impaired driving. We have seen a huge growth in some of the procedural and investigations sections, such as search warrants. I do not mean to be flippant.
[Translation]
Senator Boisvenu: In passing, drunk driving was a habit. I remember my father driving around with a case of beer on the floor; he could have met up with police officers and it would have been normal.
Auto theft, as we see it, is a scourge which could almost be considered social. A researcher told us earlier on that most thieves come from three or four major families. It is almost part of the social fabric. What would you say if we compared auto theft today to drinking and driving 30 or 40 years ago? Would you not agree that it was through very radical legislation on drinking and driving that we drastically reduced motor vehicle deaths that were caused by recidivists and alcoholics?
[English]
Mr. Downes: It is interesting that you raise the issue of drunk driving, because we have seen a sea change in that. There is no question about it. I think it was always illegal, but we have seen a sea change. Much of it has to do with the public's awareness and feelings about drunk driving. It is no longer socially acceptable. In that area, it has not been legislation that has made the big difference in the reduction of drinking and driving; it has been public education, awareness and a stigma.
Senator Boisvenu: What we did 10 years ago is equivalent. It is criminal. We did that.
Mr. Downes: Yes.
Senator Boisvenu: With minimum sentences. We tried to do the same thing with car thieves. It is criminal. I just want to know if you can make the parallel between the two.
Mr. Downes: Given that we have seen this reduction in car thefts since 1996 anyway, from the evidence before you, through some of the techniques we have heard evidence about, I am not sure that this legislation will be the next level to bring it down another notch.
Senator Baker: On the first part of the witness's presentation as to the size of the Criminal Code, of course the witness is absolutely correct, but the witness should also recognize that there is not just the Parliament of Canada passing all these new laws, but also the provincial legislatures and the municipal councils throughout Canada passing new laws. In view of all these new laws, we never hear of a political party running and saying they will cut down on the number of laws we have. Has the time come, perhaps, that with this multiplicity and overbearing number of new laws, perhaps ignorance of the law should be an excuse in some cases?
Mr. Downes: Ignorance of the law should be a defence? I suppose as a defence lawyer I am glad there is ignorance of the law. That is part of the problem. We have this proliferation of laws, and we do not seem to take many off the books.
Senator Baker: I find this area of vehicle identification numbers confusing. What is presently in the Criminal Code has exactly the same words as this bill regarding being in possession of an automobile, a vehicle, whose vehicle identification number has been altered or eradicated. That is under section 354(2) of the Criminal Code.
That was referenced by the minister and the department in the background papers here. It is in the background papers that this is an offence. However, when I checked the case law, I discovered that it was declared unconstitutional back in 1983. It is still there in the Criminal Code, and provincial and superior court judges have made errors over the years in referencing it and applying it, and the Court of Appeal said this was struck down in 1983. We still see it in the background papers of the proposed legislation, but it was declared unconstitutional.
That is why I asked Statistics Canada earlier to provide me with any cases. I cannot find any cases on Westlaw or Carswell that have ever been prosecuted or referenced in the past five years in Canada.
Do you think it is time? Look at your searches of lawyers' offices in Canada. Section 488.1 was struck down ages ago, back in 2002, I believe, yet it is still there in the Criminal Code. In other words, you pick up your huge Criminal Code and you read it and you think, "Okay, that is the law." No, that is not the law. Do you have anything to say about that? Surely it must complicate your business.
Mr. Downes: It does. It is interesting, because I represented the Crown on the case where section 488.1 was struck down in the Supreme Court of Canada, so it has a bad memory for me. I see it in the students that I teach.
Senator Baker: Section 488.1?
Mr. Downes: Yes, in the Supreme Court of Canada.
Senator Baker: Lavallee?
Mr. Downes: Yes. I acted for the Crown in Ontario in that case. I see it with the students I teach at the Faculty of Law at the University of Western Ontario. They see this and often make a mistake, thinking this is now part of the books, when it is not.
It is beyond the scope of this particular bill, but many people have said that our Criminal Code needs a radical overhaul, a haircut. Attention needs to be given to the general part of the Criminal Code to rationalize it and to make it more understandable for the public. I am a big believer in public education. That is a huge project, but it needs to be done.
Senator Baker: I will conclude with this question. You ask what the bill accomplishes. I think it accomplishes a couple of things, in that it puts this offence in with the multiplicity of offences for which you can get a search warrant to tap someone's telephone, so it does in some ways change the existing law. Would you agree?
Mr. Downes: If the new offence is created, then you are right; it empowers it under the wiretap sections.
The Chair: May I observe that you have the lighter version of the Criminal Code. I assume that it is the English version. If you had the full, bilingual version, you would be lugging around 2,660 pages.
[Translation]
Senator Carignan: I want to be sure I have understood your testimony on motor vehicles. I understand why you would wonder about the specific grounds for addressing motor vehicle theft rather than that of other property because to you, motor vehicles are no different than other property such as a television, for instance. Is that indeed what you were saying?
[English]
Mr. Downes: Yes, I am saying that I think we need to be careful about giving the message to the owner that theft of a vehicle is somehow worse or more serious in terms of victimization than theft of other property.
[Translation]
Senator Carignan: You do not feel that it is more serious? You are a criminal defence lawyer. I am sure you have gone before the court asking for the cancellation of a seizure made inside a motor vehicle because the search warrant was not valid. I am sure you submitted that motor vehicles were an extension of a person's privacy requiring special protection.
My wife is a lawyer. One day, the judge before her said: "I apologize, I do not have the file. I had brought it home with me and my vehicle was stolen. The file was inside, we are going to have to reconstitute the file." In this case, which involved a family law file, the judge's vehicle was an extension of his office. You can see that a vehicle is somewhat more valuable than, for instance, an ordinary asset. I find it difficult hearing a defence lawyer say that. It seems to me that a crown attorney could plead along these lines if he were to challenge a search warrant.
[English]
Mr. Downes: That is interesting. I do not think the Supreme Court of Canada or our courts of appeal agree with you. I think the automobile is a significantly reduced expectation of privacy. We start with the body, we then go to the home, and then you move maybe to an office.
[Translation]
Senator Carignan: To a lesser degree, but it still stands all the same.
[English]
Mr. Downes: I think the motor vehicle is seen in search-and-seizure law as a very low expectation of privacy. In any event, I am not suggesting it is not important to many people and can have the consequences you talked about with having things inside.
[Translation]
Senator Rivest: I like your approach; what is good about it is that it is clear. I agree with several of your points. I do understand that car theft has been around ever since cars have existed. However, we are witnessing a new phenomenon that has resulted in additions to the Criminal Code. The proposals contained in this bill are aimed at fighting organized crime. We are not talking about car theft per se, but the theft of cars as goods used to support organized crime financially. I am sympathetic with respect to your computer, but there is no trafficking involved, it is not helping organized crime. Do you not feel that vehicle identification may help to pull the rug from underneath organized crime? This is how I feel that this bill may prove its usefulness.
[English]
Mr. Downes: Stop me if I am misunderstanding you, but I take it the reference is to the new offence of deleting or defacing the vehicle identification number.
[Translation]
Senator Rivest: This was simply an illustration to demonstrate that this will make it harder for organized crime. When an individual puts a stolen vehicle on a boat, he tampers with the identification so that the item cannot be traced. In my opinion, this bill is designed to deal with organized crime and not to deal with ordinary car theft, as was the case in the past. Do you not feel that it may be somewhat useful?
[English]
Mr. Downes: I just have trouble imagining how the creation of an offence for tampering with a VIN will suddenly, in the minds of the organized criminals, change their concern about the penalties or about the consequences of what they are doing. If you are talking about the impact on the border services, that may be a different concern. Frankly, I am still struggling to understand the border services' position on this. I have read the evidence carefully, and I still have trouble knowing what will benefit them that they did not have already. I remain to be educated on that. However, I do not see that the new offence with respect to the VIN will in a practical way mean anything to people who are capable of engaging in large-scale, sophisticated, organized crime.
Senator Wallace: Mr. Downes, to go back to your point about the removal of the VIN, would it not be beneficial at least to the extent that, if it can be proven that someone has removed the vehicle identification number, that in itself is an offence? The section Senator Baker pointed to earlier references that the removal of the VIN or the absence of a VIN is evidence, and the presumption is that the vehicle was stolen. We are talking about something beyond that. We are talking about the actual act of having removed it constituting an offence. I understand that the benefit of making the removal an offence is that it provides the opportunity to interrupt the entire criminal enterprise — from theft, to trafficking, to chop shops. To that extent, it is an integral part of that criminal enterprise.
Having a specific offence that deals with the removal of the VIN provides that interruption in the criminal process. That is what I understood to be one of the major advantages. What is your comment on that?
Mr. Downes: Presumably that means that in the context of the chop shop where a car is being cut up and the police have reason to go in and investigate and find the VIN, then they have a basis now to lay a charge. I am puzzled as to why, knowing they must have had other evidence to go in there. Surely that would not be the only offence that they would be charging at that time. There must be other evidence of criminal activity, particularly if it is organized criminal activity.
Police witnesses may disagree with me, and fair enough; but from a practical point of view, I do not see how going in and finding an altered VIN gives them the "aha" moment that now we can shut down this criminal enterprise. I would have thought they could have done that anyway if they have reasonable grounds to believe. Reasonable grounds to believe is all it takes to get a search warrant, to go in and seize the evidence. It is gone.
Senator Wallace: I did not take from what we have heard that it gives it them that "aha" moment that finally we have you over a vehicle identification number, but it is a component. As we heard from many witnesses, there is no one-size-fits-all solution to this problem. There are a number of tools in the kit, and this is one element of it.
When you say that, I am reminded that we focused in our discussion with you on the theft of the motor vehicle, that new separate offence; but there are the other aspects of the bill that deal with trafficking and possession for the purpose of trafficking as well as importation and exportation. Within that, the removal of the VIN could play some role.
What I understand is that targeting each of these as individual offences that could be prosecuted separately provides a greater opportunity to disrupt that entire criminal enterprise, from the moment of the act when the vehicle is taken out of someone's yard or off the street, until perhaps it ends up in a chop shop or in a container going to wherever.
That is the rationalization I have taken from it. Breaking the problem down into smaller, bite-sized components provides a greater opportunity to prove what is needed for one of them and disrupt the enterprise. What do you think of that?
Mr. Downes: My principal position has been that all of this is covered. When it comes to the trafficking, I know the argument is really that there are many people assisting in trafficking who are not caught under the current possession of stolen property offence. However, if the law of possession and the law of aiding and abetting are properly applied, those people are all captured. For example, if individuals assist in the importation or exportation of stolen vehicles by filling out paperwork that they know to be false, they are aiding and abetting in that offence, or they are committing another offence.
From a practical point of view, I am not sure who else the added possession for trafficking offence would capture. That is my fundamental point here today. I wonder whether there is more symbolism than substance in the proposed legislation.
The Chair: You have made your point very eloquently. I will cut you off with regret, Senator Wallace.
Thank you very much, Mr. Downes. As usual, it was stimulating and very helpful. We are grateful to you. I am sorry for the delay in beginning your time with us, but you were very patient, and we are duly appreciative.
Mr. Downes: It is a real pleasure to be here. Thank you very much.
The Chair: Colleagues, we are pleased to welcome back to this committee, from the Canadian Association of Crown Counsel, Mr. Jamie Chaffe, the president. I know you practically had to clone yourself to be here. We are very grateful to you.
Jamie Chaffe, President, Canadian Association of Crown Counsel: It is very poor genetic material, Madam Chair, but I am happy to be here and happy to be able to make it. In the interests of time, I believe Ms. Anwar has provided the senators with our written materials.
The Chair: She has.
Mr. Chaffe: I will shorten my opening remarks somewhat and go directly to what our association feels the anticipated impact of Bill S-9 would be.
We expect, particularly given the noted support of police associations and agencies and the Canada Border Services Agency, who are actively supporting this legislation, that there will be a substantial amount of work, a number of charges, arising from these new criminal offences. It needs to be said that much of this work will be brand new to the criminal justice system. As described in the testimony of the Canada Border Services Agency, this legislation will allow it to conduct targeted and proactive investigation of suspicious goods at the border, powers it never had before.
In respect of the new auto theft provision, we expect there will be fewer guilty pleas to the charges proceeded by indictment than there were under the existing offence of theft over $5,000. While an accused will not attain a mandatory minimum sentence until his or her third or subsequent conviction, an accused will be more inclined to try and beat his first or second conviction for auto theft when a mandatory minimum awaits a third conviction. We expect this will increase the number of these types of charges that will go to trial.
As with the other recent Criminal Code amendments that have enshrined new offences, new mandatory minimum sentences and new procedures for dangerous offender designations, Bill S-9 will lead to a significantly increased trial rate and fewer guilty pleas in criminal courts.
With respect to previous proposed amendments before this committee and others regarding violent offences, the Canadian Association of Crown Counsel, CACC, has taken the position that in jurisdictions that have workloads that are already over capacity, and where there is a significant delay between the date of charge and the trial date, Bill S-9 may result in a necessary adjustment of sentencing incentives. In these overburdened jurisdictions, the provincial governments might well need to direct their staff to offer lower sentences or diversion for the reduction of trial capacity caused by this new added trial load.
Therefore, where such work pressures exist, provincial Attorneys General and their staff will need to create trial capacity and will likely do so by triaging non-violent cases out of the trial courts. Usually, those cases involve offences against property. That has been our position with respect to amendments around violent offences.
These new criminal laws are focused specifically on property offences. As such, they will present a significant dilemma for the criminal justice system, unless they are supported by significant new funding for criminal justice infrastructure.
I think it is important that this committee know that many of the jurisdictions in Canada are over capacity in terms of workloads. I will talk about three specific provinces. I could speak about all of them, but for the purposes of this discussion I will start with Manitoba.
In March 2009, a working group established under the collective agreement, consisting of senior management in the Manitoba Department of Justice and representatives of the Manitoba Association of Crown Attorneys, MACA, completed a report that outlined a serious workload crisis. Manitoba has serious problems with auto theft. Management and the MACA working group representatives agreed that, based on the approximate number of files opened every year by prosecutions — about 45,000 files — and the number of prosecutors currently carrying anactive caseload, bringing caseload numbers to manageable ranges would require an additional 70.5 Crown attorneys with a corresponding 35 support staff.
The report included this statement:
45,000 files per year divided by 250 files per Crown Attorney per year equals 180 Crown Attorneys. There are currently 109.5 Crown Attorneys carrying an active caseload, leaving a shortfall of 70.5. Based on a prosecutor to support staff ratio of 2:1, this requires 35 new positions for support staff. These figures do not include supervision and education of these new lawyers, as most if not all of them will be developed over time from within the articling program. It should also be noted that these numbers are based on current demands. Should circumstances change, it may be necessary to revisit staffing requirements.
Bill S-9 and the previous legislation that this association has commented on offer material changes in circumstances in terms of workload. These estimates are low for Manitoba.
Following this report, in July 2009, the government in Manitoba committed to adding 16.5 Crown attorneys and two articling students by the end of 2011. The government is not committed to adding any further full-time equivalents with respect to Crown prosecutors beyond 2011 and has not accepted the principles set out in the report. That is the state of the union in Manitoba.
In Ontario, in September 2008, the provincial government formally acknowledged that there was a workload crisis in Ontario's Crown system. In addition to approving the hiring of an additional 40 prosecutors immediately, the provincial government promised to hire at least an additional 40 new prosecutors by April 2009.
The provincial government did not keep this promise. Instead, it instituted the Justice on Target program with the stated goal of reducing the number of appearances and days to disposition by 30 per cent by the year 2012. A key component of JOT, as it has become known, is a direction from the Assistant Deputy Attorney General for prosecutors to focus on the diversion of criminal charges.
The Chair: In case anyone watching us on television is worrying, the disturbances we are experiencing here are not riots but equipment being banged around in the antechamber.
Mr. Chaffe: It is much quieter than my usual courtroom, so I am fine.
The focus is to be on diversion of criminal charges, primarily property offences, out of the trial courts. The Crowns are encouraged to strongly consider diversion under the Direct Accountability program, which is a critical part of JOT, for a discrete list of these offences.
Therefore, instead of adding resources to deal with an acknowledged workload crisis, the provincial government changed course in 2009 to focus on the reduction of work to be conducted by the criminal courts through diversion. We are now two years into the program, and JOT has had an insignificant impact on the number of appearances and days to disposition of criminal charges, except in one office, while the workload issue for prosecutors in the criminal justice system as a whole continues to increase in severity and gravity.
Quebec has the lowest ratio of prosecutors to population in Canada. Their workloads are overwhelming, and they are among the most poorly paid prosecutors in the country. From the period 2003 to 2008, the number of open files at the court of Quebec for criminal matters exceeded that of closed files was 127,000. This exceeded the average number of open files by approximately 25 per cent. The time from first appearance to disposition for adult criminal matters back in 2007 was 183 days compared to the 122-day national average.
In Quebec, as in British Columbia, there is a process of charge approval whereby Crown prosecutors decide what charges will go before the court after the police have completed their investigation. Workload considerations weigh heavily upon these prosecutors as they make these very difficult decisions about which charges will receive the attention of Quebec's overburdened criminal justice system.
The last province I will talk about is British Columbia. The criminal justice system in B.C. is hanging on by a thread in some offices and has fallen off the cliff in others. The failure of the provincial government to promptly replace judicial vacancies in the provincial courts and replace Crown prosecutors who have retired, gone on maternity leave, or gone on secondments, coupled with recent cuts to legal aid and the predictable increase in self-represented accused, has impacted heavily on the criminal justice system.
Legislation increasing incarceration while decreasing credit for pre-trial custody and eliminating conditional sentence orders has resulted in more cases being set for trial. More trials and judicial vacancies mean more hours are being set per day in court with the predictable result that not all matters are reached. It puts those matters that are adjourned in danger of being stayed for delay on the new, second trial date for those offences.
Preparation time in B.C. is evaporating, and offices are now contemplating the question: What crimes do you want us not to prosecute?
Recently, the Attorney General has pursued an initiative to deal with first-time impaired drivers administratively under provincial legislation in what appears to be, at least in part, an effort to remove some work from the criminal justice system.
This is the state of the union in four provinces. I think those are the ones I have time to describe this evening. These are provinces that have supported Bill S-9, as I understand it, and the majority of the other new legislation that will significantly add more workload to an already overwrought system, without any mention or apparent intention to add resources to support the legislation.
Absent a significant increase in funding to add sufficient criminal justice infrastructure — by that I mean prosecutors, courts, judges, probation and parole officers and corrections — these new provisions, and the expected policy support that we can logically expect from provincial governments, particularly where they have supported these legislative changes, will create a direct conflict with the heretofore strategy of triaging property offences out of the court system to create needed capacity for violent offences.
Therefore, the CACC would like to recommend to this committee that Bill S-9 and any new criminal legislation that is contemplated by the federal government and provincial governments include sufficient funding to allow the law to be carried into effect, or include a clear direction regarding which criminal offences we will not be prosecuting in order to create capacity for the new work. Those are the submissions of the CACC.
Senator Wallace: Thank you, Mr. Chaffe. It is good to have you back again.
I have an observation first. You are obviously concerned about the resources and the impact of this bill upon current resources and what it could lead to in practical terms. I recall your expressing similar concerns when you appeared and provided evidence in respect of other bills. I am sure you take them very seriously.
I would like to pull back from that for a moment and focus on the substance of the bill. Maybe I will start with one particular element, the element that would create this new separate offence of theft of a motor vehicle. We have heard evidence that indicates that that would be a marked improvement over what exists today. Putting the resource issues aside for a moment, as an experienced Crown prosecutor and one who would be dealing with the substance of that amendment, what is your comment? What would that mean to you as a Crown prosecutor as far as affecting the administration of justice?
Mr. Chaffe: I am not here to comment with respect to my views as a Crown prosecutor. I am about to make an exception on that. We do not comment on the goodness or badness of a particular bill, whether it is good or bad policy. I will make this comment, though: Superficially, as a Crown who does a lot of sentencing, as all Crowns do, it would help a Crown know what the record is for. Instead of just "theft over," it would say "auto theft" or words to that effect. We can get behind the record, but it takes an enormous amount of time. If the police force you are working with does not have a database that tracks cases, the information is not readily available. That would allow anyone standing up in court and filing a record before the court to know what the theft over conviction was for.
I do not know whether I made an effective presentation before your question, but what is unique about Bill S-9 as opposed to all of our other testimony is that the focus of the proposed legislation is on property offences. The dilemma it creates for provincial Attorneys General is traditionally we have gone to the category of property offences to create capacity, by diversion or plea bargaining, so that we can deal with violent offences.
The point I wanted to make with respect to Bill S-9 is that this is new. It is a focus on property offence, and it will create a very difficult dilemma for us. It is hard to prioritize violent offences and property offences when we are trying to focus the limited resources of the criminal justice system.
I should not talk about how I feel about what these bills would do in terms of good or bad, but I take your point with respect to the sentencing scenario.
The Chair: I will interrupt on a point of information. The ruckus we heard out in the antechamber was overflow effect from the fact that there has been a fire alarm in the Centre Block and the building has been evacuated. I do not know whether anyone has an office there or cares, but just so you know. Forgive me for interrupting your line of questioning.
Senator Wallace: For the record, I do not have an office there, but I care. I know I speak for all of us. Now I am thinking I smell smoke, so I will be much briefer, and perhaps Senator Baker will as well.
Thank you for that, Mr. Chaffe. This does relate to property offences as compared to other offences, and I understand what you said about triaging and how you deal with the reality of those different types of offences, but it seems from what we have heard that the federal Department of Justice Canada and the Attorneys General of the different provinces have taken this issue as a significant priority, together with law enforcement. I realize you have to deal with the reality of it when charges are laid and to prosecute these in court, but they have made it a priority, and that is obviously why the matter is here before us.
Beyond the new offence of theft of a motor vehicle, there are the other new offences as well — trafficking, possession for the purpose of trafficking, importation and exportation. The thrust of the bill in a significant way is to disrupt the criminal enterprise that extends through each of those separate offences. I may be asking you something now as a Crown prosecutor as opposed as a representative of the association, but as a Crown prosecutor, could you comment on the creation of these new offences, some of which are included in some way, shape or form in the code today, although they are, as I understand it, clarified and separated distinctly. From a prosecutor's point of view, do you see that as being advantageous to prosecute cases involved in this criminal enterprise chain involving auto theft, trafficking and so on?
Mr. Chaffe: I have had the benefit of reviewing some of the previous testimony from police associations and the Canada Border Services Agency. It appears to me from their evidence that they are quite intent on using these new provisions. That means that prosecutors across the country will get a lot more work. That is a particular problem. We understand that when provincial Attorneys General support legislation of this nature, then we can logically expect supportive policy statements that come from the Attorneys General to their agents, the prosecutors in the field. We can reasonably expect this will be a priority for us. The dilemma it creates for us is what do we do with all the rest of the offences that the police bring us under the Criminal Code. You said earlier that the provincial Attorneys General are in favour of this, and that certainly is the case. I am not denying that, but ultimately, when we cannot carry a law into effect on the ground, it is the prosecutors and provincial Attorneys General who really become demonized for not being able to carry the law into effect.
The point we are trying to make here is that it is just not enough to write the law. We can identify areas of criminal activity that need more specific charges to address them. We can do that. That is your job. The police are expert at detecting crime and investigating it, and they are quite effective around giving that information to legislators. I am not for a second being critical about that. However, it is not enough just to write the law. If you cannot support the law with sufficient resources to carry it into effect, ultimately, it has been our experience that the Crown prosecutors are demonized for that failure. That not only is not fair, but it distracts, I think, the legislator, the police and the Insurance Bureau of Canada from the real problem, which is insufficient resources to carry the law into effect. You will not find in the criminal justice people more dedicated to carrying out their duty of carrying the law into effect. We support the rule of law. That is our role in the system.
It is incredibly frustrating to hear in the public the frustration around this issue, to hear it from the police officers whose charges I withdraw because I have higher-priority cases. We hear it from the witnesses in the courtroom, to whom I have to say, "I am sorry, but I am have to run this case first, ahead of yours, and we will have to adjourn yours to another date; and there is a chance that your case will never be heard because of a Charter application for delay, but I am going to prioritize this violent offence ahead of your property offence." It is incredibly frustrating for prosecutors to hear that they are responsible for some sort of revolving door in the justice system.
For many people, that becomes a distraction from the real problem. The real problem is that we have a criminal justice system that is overwrought with work. It needs resources to work effectively. If it is not resourced effectively, we get these aberrant results that attract so much media attention.
Senator Wallace: You could not describe it more graphically than you have, to make the case that resources are needed to support this bill and others. You did say — maybe I misunderstood you — that someone has suggested this bill would not be resourced. We have had no evidence to that effect. I realize you are dealing with a track record, but there has been nothing to indicate that it would not be resourced. Certainly, you have made the point very well that it should be resourced.
Mr. Chaffe: We welcome any announcement that it will be. With respect to the funding of prosecutorial resources, we have only heard evidence to the contrary across the country. I think no one understands more — in terms of various crime spikes, anecdotally — that we are in a recession; times are tough and people are under tremendous pressure. We understand that, but we have not heard anything remotely around an increase in funding to support prosecutorial services or any other aspect of the criminal justice system. We are seeing the opposite from shore to shore.
The Chair: Here you are making your case. I will come back to you, if we have time, Senator Wallace.
[Translation]
Senator Carignan: We are extremely sensitive to the demands of crown attorneys with respect to their conditions of work and salaries. I am always very impressed when I see the salaries paid to crown attorneys versus the salaries declared by defence lawyers. The amounts are quite substantially different even though they are both practising the same type of law, with separate roles. Unfortunately, we are not authorized to make any decisions with respect to your conditions of work, but we will convey the message to those who do, particularly to our provincial colleagues.
I have a question that is a bit more technical. We are working very hard to lower the crime rate. All of the measures that we have taken are designed to achieve this and increase public confidence in the justice system, an essential component of this system.
The previous witnesses did, however, state that there had been a phenomenal reduction in car theft. In Manitoba, for example, we were told that there were 10,000 fewer thefts in four years. If I am correct in understanding that there are 45,000 cases in Manitoba, that represents nearly a 25 per cent decrease, thanks to crime-fighting measures. The crime rate is dropping, that is undeniable. Do you see any evidence of this decrease in the crime rate in your everyday work?
In assessing the figures, with the hope that I am comparing apples with apples, we are talking about a phenomenal reduction. Have you received any information from your colleagues, especially from Manitoba, to the effect that they have experienced a decrease in cases? If not, there must be another reason why the workload has increased.
[English]
Mr. Chaffe: There was a tremendous drop in auto theft in Winnipeg. That is outlined in the study I mention earlier in my submission; there is a particular part that explains how that came to be. Resources were diverted from other areas of criminal prosecutions, and a special project consisting of prosecutors and police forces focused on this particular problem in Winnipeg.
I probably will misquote the file, but the average file load of a prosecutor in that project was much reduced from that of an ordinary prosecutor. By "ordinary," I do not mean that in a derogatory sense; but if you were on this project, you were given the resources to really prosecute effectively. It is my recollection that the average file load for prosecutors on this project was 50 per annum, whereas colleagues in the same office who were not assigned to the project would be dealing with upwards of 250 criminal files.
Can it be effective? I think Winnipeg is an excellent example of how focusing resources on a problem can bring about a result; but it also tells the whole story, because all the other prosecutors who were not on this project had to pick up the slack. They had to pick up all those other files.
The annual file load is 45,000 cases. If you use a special group of prosecutors for a particular project so that they can do a limited number of important projects very well, those other files do not go away. The other colleagues have to bear the load on that. They have the same 24 hours in a day that the lawyers on the special project have.
I think you asked whether there was a sharp reduction in auto theft, and I believe there was. I think the explanation was the special project, this focus of police and prosecutorial resources on a particular problem.
Senator Baker: It is a fascinating presentation from the Crown prosecutors' association. You represent both provincial and federal Crowns; is that correct?
Mr. Chaffe: We represent the member organizations for all the provincial Crown associations across the country and the federal Crowns in the Public Prosecution Service of Canada, PPSC, as well as the civil side.
Senator Baker: You mentioned the figure of 250 files a year. Did I hear you correctly that one Crown prosecutor would handle 250 files a year?
Mr. Chaffe: I think that is the goal.
Senator Baker: That is the goal; so you are talking about 300 files a year in some cases.
Mr. Chaffe: Yes.
Senator Baker: Now I am beginning to worry that some of the crooks are getting off. They are getting off because — and perhaps you can explain this to us — we have a law in Canada, section 11(b) of the Charter, institutional delay or delays by Crown prosecutors in not being available. Is that counted against the Crown?
Mr. Chaffe: Institutional delay is counted against the Crown, yes.
Senator Baker: If you delay these cases, you could end up with a decision of the court where the accused — the crook, the person who did the offence — gets off scot-free on a judicial stay entered because the law has been violated. Is that correct?
Mr. Chaffe: If Mr. Downes brings an application for section 11(b) and succeeds, the result usually is a stay of proceedings.
Senator Baker: An institutional delay, delay in the courtrooms, delay from you as a Crown prosecutor, counts against the Crown. Am I correct in assuming the Supreme Court of Canada has laid down a certain period of time where it is reasonable for someone to be prosecuted?
Mr. Chaffe: That is correct.
Senator Baker: If that is not upheld, if it is not within that area, that accused gets off scot-free on a judicial stay; is that correct?
Mr. Chaffe: Yes.
Senator Baker: You have 300 cases a year. On an indictable offence, run this through for us now. This bill we have here today, these auto theft things and VINs, are usually associated with drugs as well — in some cases. On every single case, you would have a provincial Crown prosecutor and a federal Crown prosecutor in the same courtroom prosecuting one person; is that correct?
Mr. Chaffe: Not for very long. There would be a delegation, I would expect, from the federal prosecutor to the provincial or vice versa. It would depend on the facts of the case, senator. Unless it was a major, special prosecution, it would be unlikely to have both.
Senator Baker: How many days would it take for those 300 cases — or 250 cases you would like to have — which you claim the Crown prosecutors have across this country? That would be in a year, 365 days, but you do not have a court on Christmas Day. There are some holidays on which you do not have court.
Mr. Chaffe: There are 250 juridical days.
Senator Baker: Give me an estimate. How many days are taken up on just one case — how many days upon plea, preliminary inquiry — if it is indictable?
Mr. Chaffe: It depends on the charge. I can give you generalities, if you like. Cases are taking longer, over time. We can take impaired driving, which occupies a tremendous portion of the charge menu of any criminal court. Fifteen years ago, I could probably do two or three in a day. Now, one impaired driving case takes usually two days if there is any sort of Charter application. Recent amendments have shortened that somewhat, but we are still looking at a day at least for an impaired driver charge.
Senator Baker: You are looking at pre-trial. These are the Charter arguments; those could go on for a week.
Mr. Chaffe: Not for an impaired driving case.
Senator Baker: I could go through them, but okay. I am talking about an indictable offence on drugs, say, or what we are dealing with today. A person has a choice, do they not, if they are indictable proceedings? You have a preliminary inquiry choice to cut down a bit, and you have a jury trial choice.
Add up all of the days you would spend on one file. What is a general average now on how many days one case would take?
Mr. Chaffe: It depends on the file.
Senator Baker: Come on, give me one case.
Mr. Chaffe: I do not think I can.
Senator Baker: This is important, Madam Chair. Preliminary inquiry could take a dozen days.
Mr. Chaffe: Depending on the charge, yes.
Senator Baker: Then a pre-trial could take a week, if it is a complicated charge of what we have here — wiretaps and so on.
Mr. Chaffe: Pre-trial applications, yes.
Senator Baker: It could take a week or even two, if it is wiretaps. Then you are talking about a trial that could go on for 20 days.
Mr. Chaffe: Yes.
The Chair: We are talking about murder, are we?
Senator Baker: No, a drug offence.
Then you have appeals to the superior court, which take additional days. Then there are appeals to the Court of Appeal.
For one of those 300 cases a year you were talking about, you could be tied up with for 30 days of the 365 in the year.
Mr. Chaffe: Yes.
Senator Baker: How in the heck do you do 250 cases year?
Mr. Chaffe: Let us look at it this way: At the end of the day the provincial Attorneys General and their agents are here to try and ensure the system does not break. In order to do that, the Attorneys General direct us in a general way to manage the rate at which things go to trial. Each province needs to ensure that around 90 per cent of the cases do not go to trial.
The Chair: Ninety?
Mr. Chaffe: Around 90 per cent. The matters that do go to trial have to be the most serious ones. They are the ones that we preserve through all sorts of different programs for the most serious offences where there are no guilty pleas.
That is the way. From 10,000 feet, it has to work. We cannot handle trial rates that go much higher than 10 per cent in any jurisdiction.
Senator Baker: This bill that gives the power to now have wiretaps in this and so on will stretch out the case of a trial in every instance.
Mr. Chaffe: These types of provisions could be used to target a very sophisticated criminal organization, and that would require a tremendous amount of resources to investigate, give pre-trial advice on, and to prosecute. Yes, it would present a lot of new work.
Senator Baker: It is impossible.
The Chair: Absent the question of resources and all other things being equal and perfect, are there any elements of this bill that would make prosecution easier, because, under the existing code, things are too hard to prove or too complicated? Are there any elements here that would assist Crown counsel in doing their job, assuming that the necessary resources were available?
Mr. Chaffe: Easier? I do not think I would say that. Does the proposed legislation present particular obstacles? From my reading it does not.
I am not the person you should be asking this question of. I am just a country doctor, Jim.
The Chair: I know you have made it very clear to us more than once that you are not here to talk about the merits in terms of moral principles, and we are not asking you to go beyond that. I am just asking you as a practical matter and as Crown counsel go about their jobs.
Mr. Chaffe: It brings us in a new area of work. Is it any harder than any other area of the Criminal Code to prosecute? No, it is not.
The Chair: Is it any easier? Is it neither easier nor harder?
Mr. Chaffe: There may be other areas of the code that are particularly difficult to prosecute, but any large project prosecution is quite difficult, particularly if there are wiretaps involved.
Frankly, I think Mr. Bartlett gave very good evidence to the committee, from my personal perspective and not that of the CACC. He is a far better person to ask about the design of the bill. I am not here to talk about that.
Senator Baker: On Senator Wallace's point regarding minimum sentences, could you verify for the committee that a provision in here says that whether the Crown introduces someone's previous record depends upon the provincial code of conduct for Crown prosecutors? Is that not correct?
You just mentioned impaired driving. Let us say the offence took place in Ontario over five years ago. The instructions are given and can be read on the Internet, so they cannot be denied. The instruction is that the previous records will not be entered if it is beyond five years.
There is a discretion built in there to the Crown prosecutor. However, that does not exist in all jurisdictions. Why does it not?
On your third offence, this bill says you get the minimum, but that only depends upon the Crown prosecutor and whether the Crown prosecutor will enter the previous offences. The judge does not have a magic ball in front of him; he must be given this by you. Am I misinterpreting this?
Why are the rules not the same in each province so that people will be dealt with the same under the Criminal Code? You used the example of impaired driving, which you are very familiar with. Why is it that there are different guidelines for Crown prosecutors throughout the country?
Mr. Chaffe: I am not aware of the particular differences between policies across the provinces. I do not think I can help you with that.
There is discretion in this bill whether we proceed by indictment or not on the third offence. As a practical matter, though, I think it would be ethically difficult for a Crown not to file a record. It is an important sentencing consideration, and we are always to be open and forthright with the court.
The Chair: Mandatory minimums play into that; do they not?
Mr. Chaffe: Yes. When you are talking about impaired driving offences, there is a notice provision: Notice of intention to seek increased penalty. That is a particular design of that particular section.
If you do not file the notice, then the judge has certain discretion around what penalty to give out. However, I do not think that would mean the Crown would not be forthright with the court about the existence of the record.
Senator Baker: Oh, yes, the existence of the record. Then you have to request —
The Chair: Senator Baker?
Senator Baker: I am sorry, Madam Chair, but we have all read of these offences where someone is convicted 10 times of impaired driving in the previous 10 years, and we wonder how it is possible when we have mandatory minimums.
The Chair: We just heard how it is possible.
Senator Baker: Yes, of course. He does not want to comment on that.
Mr. Chaffe: I am not sure I said all that, but I gave some sort of answer, yes.
The Chair: It is a fascinating line of questioning. It is just that it is my job to keep an eye on the stopwatch.
Senator Carignan, were you trying to squeeze in a supplementary? Is it a very brief one?
[Translation]
Senator Carignan: Perhaps you answered my question about the impossibility of holding 250 three-day trials within the same year. I understood that approximately 90 per cent of these cases were resolved before the trial took place, either at the appearance stage or at other stages, that there were guilty pleas, and as a result, the average volume was 250 cases. If all of the cases were to go to trial, this would be an impossible situation. So for the 90 per cent of the cases that do not go to trial, are we to understand that it is because they were guilty pleas at one stage or the other before the trial, which would explain this figure, right?
[English]
Mr. Chaffe: Yes, senator. That is the way it works. We have the discretion with raw charges. We actively plea- bargain to achieve guilty pleas for cases. The accused sometimes want to plead guilty. Particularly in the most overburdened jurisdictions, we have quite robust systems for attempting to deal with cases without the need of a trial.
I should put a caveat with respect to the 250 files. I think that is the goal for Manitoba. It is higher. Each province measures these things differently. In Manitoba, they have a particularly robust analysis of workload that is not the same across provinces. Everyone keeps statistics in a different way. For instance, in Ontario, individual Crowns, per head, would do anywhere between 700 and 1,200 charges a year, so we do not break it down on a file basis. It is hard to compare this province to province.
I also should put a caveat around the 90 per cent number. It may be plus or minus percentage points, depending on the province. However, that is the general rule with respect to preserving trial rates around 10 per cent.
The Chair: Thank you. We are just a few minutes over time, so the overburdened staff are only partially overburdened.
Mr. Chaffe, as usual, it is fascinating. We are very grateful. I think we will see you again before long, on another bill, we hope.
Mr. Chaffe: Okay. Thank you very much, Madam Chair.
The Chair: In the meantime, thank you. You have been extremely helpful. As I said to some previous witnesses about other evidence, some of the statistics you throw around are breathtaking, not necessarily in a comforting way. Nonetheless, we need to know these things. Thank you very much.
Mr. Chaffe: Thank you.
The Chair: Colleagues, we meet again in this room tomorrow morning at 10:30.
(The committee adjourned.)