Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 25 - Evidence, April 25, 2007
OTTAWA, Wednesday, April 25, 2007
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill S-4, to amend the
Constitution Act, 1867 (Senate tenure), met this day at 4:17 p.m. to give consideration to the bill.
Senator Lorna Milne (Deputy Chairman) in the chair.
The Deputy Chairman: Honourable senators, the Standing Senate Committee on Legal and Constitutional Affairs is
here today to study Bill S-4, to amend the Constitution Act, 1867 (Senate tenure).
This bill was introduced in the Senate on May 30, 2006. A special committee was created by the Senate on June 21,
2006 to study the subject matter of the bill, along with other issues of Senate reform.
This committee began it study of the bill on March 21, 2007. In that time, we have heard from numerous experts
who have enlightened the committee with their extensive knowledge on the potential political and legal implications of
this bill. We were also extremely fortunate to have the opportunity to speak with three distinguished members of the
British House of Lords who are involved with several upper chamber reform initiatives and so were able to share many
common areas of inquiry and concern.
The result has been a most lively exchange of ideas that has provided senators and Canadians alike with the wide
breadth of opinions that exist on what place this institution has in the Parliament of today.
I want to welcome before us by teleconferencing Dr. David Smith from the Saskatchewan Institute of Public Policy
at the University of Regina. Professor Smith is a leading authority on constitutional governance in Canada. In
particular, his scholarship explores the central political institutions and political processes of Canadian democracy,
which he examined in 2003's The Canadian Senate in Bicameral Perspective.
Professor Smith's scholarly work covers a broad spectrum of political studies in Canada, as well as studies of
comparative politics generally. He has contributed much to the work of Parliament, providing expert testimony in
parliamentary committees considering measures such as the clarity bill and the Royal Assent bill, and has served as a
commissioner of electoral boundaries. Professor Smith has made nationally and internationally recognized
contributions to the field of Western Canadian and constitutional studies. Professor Smith, please proceed.
David E. Smith, Senior Policy Fellow, Saskatchewan Institute of Public Policy, University of Regina, as an individual:
Thank you. I am happy to be here today. I will read my remarks, which I have sent ahead for the purpose of
On September 20, 2006, I appeared before the Special Senate Committee on Senate Reform to discuss Bill S-4 on
Senate tenure. In those remarks, I said that I thought that the fundamental character of the Senate of Canada, to be
inferred from the criteria for appointment established at Confederation, that is age and property qualifications of
nominees, life tenure, originally, along with a fixed number of senators, and to be taken from the Supreme court of
Canada Senate reference opinion of 1980, is independence. Any proposal to alter the Senate, whose effect would
compromise the Senate's independence and which, at the same time, has not met some standard of provincial
concurrence for amendment of the Constitution — a set of circumstances, I believe, that echoes those leading to the
reference opinion itself in 1980 — would undermine the essential characteristic of the upper house.
The government maintains that the proposed change to a fixed term of eight years for senators in place of a
mandatory retirement age of 75 may be implemented by Parliament acting alone under section 44 of the Constitution
Act, 1982. Honourable senators have heard contradictory testimony from constitutional experts as to the soundness of
that position. My own view is that a fixed term for senators, whether renewable, or elected or appointed, challenges the
principle of independence that the Fathers of Confederation sought to entrench in the structure of the Senate and
which the Supreme Court of Canada reiterated in 1980.
A provision for non-renewable appointment for a fixed term would result in a chamber characterized by continual
turnover. The features now cited as the Senate's strengths of experience, knowledge and perspective would disappear.
Moreover, rather than Senate membership coming at the end of an individual's career, it could come at its
inexperienced beginning. For example, a person in their thirties appointed to the Senate for eight years would be in a
position to seek a seat in the House of Commons by the time she or he was 40. If that were the case, Senate tenure
might as easily be seen as prefatory to a period in the House of Commons as it is now seen to follow time in the lower
house or in another occupation. In other words, the relationship between the two chambers would be reversed and the
independence that now attaches to senators, whose political ambitions are at an end, would be compromised.
A provision for renewable appointment would make a senator who desired renewal susceptible to influence from the
prime minister, who would continue to make the nominations to the Governor General. Ambition and a view to future
opportunities would assume far greater significance than they have today in the calculations that members of the upper
house bring to their work. That comment is not intended as a criticism of such behaviour but as a statement of political
life that would now apply to the Senate.
Although Bill S-4 does not provide for election of senators or even of nominees for senatorial appointment,
comments by the Prime Minister suggest that he favours a form of advisory election of nominees. In my view, election
would not strengthen senatorial independence but would jeopardize it by creating a constituency and constituents,
where none exist now, to whom a senator would have obligations. I avoid the term
"accountability" because election to
a position that is non-renewable is no election at all; the elected need never account to the electors for their actions.
Election with renewable terms presents the real challenge to independence because senators would have to satisfy
their constituents' desires in order to be re-elected. Again, the word "accountability" is inappropriate because in a
parliamentary system with the House of Commons remaining the confidence chamber, it is unclear what form
accountability in the Senate would take. The simple but inevitable response is to say that allegiance and discipline will
be defined in the Senate as it is defined in the House in terms of partisanship.
Bill S-4 speaks to terms for senators and not to their election, although another bill is before the House on the
Senate appointments consultation. Still, as Professor Alan Cairns noted recently in his testimony, terms are presented
by the government as a first step in a sequence of incremental changes. The contrast between mega-constitutional
change in the past, which failed, and a modest change in the future, which, because it is presented as manageable has
the potential to succeed, is strongly implied.
Yet, a succession of incremental changes can have a profound impact. In an opinion of the judicial committee of the
Privy Council early in the last century, the name of which I have unfortunately forgotten and have been unable to track
down, the justices make the same point about a series of decisions on a subject of jurisdiction that might move
imperceptibly from their starting point so that eventually, what was once white has become black.
The problem with the proposal to replace the appointment of senators until age 75 with a fixed term, whether
elected or appointed, is the problem that arises with all proposals to change the form of senatorial selection — they
start at the wrong end. What is to be the purpose of a renewed or reconstituted Senate? If it is to do what it does now,
which is to investigate, study and review proposed legislation, then any other manner of selection would be inferior in
its results to the form and place since the foundation of the federation. What would constitute a term that would
maintain these functions? If the object were to make the Senate a body that represents and responds to opinion by
attaching it to the public through some consultative mechanism, such as an election, then the function of the Senate
On this point, it is worth stressing that despite independence being the Senate's singular characteristic, an
independent Senate is not a body insulated from public sentiment. That has never been a charge levelled at the Senate
The concern is no longer about independence from but linkage to the political executive. Once elected, what
argument is there for the Senate remaining subordinate to the House of Commons? As difficult as the concept of
accountability is to achieve within the present understanding of responsible government, how much more difficult will
it be in a constitutional arrangement of power that sees the popular will represented in the two Houses of Parliament?
From the perspective of those who support Bill S-4, the foregoing comments may seem extreme. Still, small changes
may have large and unintended consequences. In my opinion, disagreement over the manner of selection of senators
would be easier to resolve were there agreement first on the role of the Senate and its members in the Canadian
The Deputy Chairman: Thank you, Dr. Smith, for that very thoughtful presentation.
Dr. Smith, your comments apply to the bill that mandates an appointed term for eight years with a possibility of
reappointment. What if the term was changed to 12 or 15 years with no possibility of reappointment? Would that
change any of your opinions about it? Would it make it more likely to be constitutional?
Mr. Smith: I am not sure I was actually talking about the constitutionality of the bill. That is something that only
the Supreme Court can deal with, with regard to independence. My own view is that 15 years is not in and of itself a
contradiction or in conflict with independence. I would not say that. I do think that there are the difficulties of the
terms and how the selection process for the nomination occurs, and whether it is 15 years or eight years, many of my
comments would apply to the longer as opposed to the shorter term.
Senator Joyal: Welcome, Professor Smith. The important element of your testimony, which we have not heard from
other witnesses and experts, points to the changes that Bill S-4 would bring to the relationship between the Senate and
the House of Commons. The way the system works, as you have described, makes the Senate an independent House of
Parliament. The court, as you said, in 1980 stressed that independence. Of course, the way the Senate has been
constituted entrenched that in the law of the land.
By changing that, a senator appointed for a renewable eight years could have his or her eyes on the House of
Commons as a future step in his or her career or public service ambition would change the nature of the dynamics in
the chamber. Could you expand on other aspects of the work of the Senate that would be changed in its relationship
with the House of Commons in terms of review of bills?
On September 20, you stated:
There was no doubt in Canada what the Senate's role was to be. It was to protect vulnerable minorities. It had
other tasks, such as to scrutinize legislation coming from the Commons, but protection was its primary role. It
was this role that particularly required an assured measure or sphere of independence.
In trying to understand the dynamics created by this bill, dynamics that would run contrary to what the Supreme
Court has stated are essential characteristics of the Senate, we have to measure the impact they may have on the
Senate's relationship with the House of Commons in the review and scrutinizing of legislation. You have stated that
this is one of the key roles of the Senate.
Could you expand on that statement? Am I overseeing the short-term and unintended consequences of this bill in
relation to task of the review of legislation that the Senate performs?
Mr. Smith: Senator Joyal, as I view the relationship between the two Houses of Parliament, I believe that the Senate,
as it has existed since Confederation, brings to its tasks — which are investigative and to some degree representative,
protective of minorities — a perspective that I believe comes with experience and age.
This is not to say, of course, that there are not exceptions, that younger public officials cannot bring similar
qualities, but as an institution the Senate's strength lies in its perspective.
If you introduce terms, you would create the potential that a political career would begin rather than end in the
Senate. If that were the case, the qualities that one looks to, the strengths of the Senate that even its critics
acknowledge, which are perspective and experience, would be less dependable in the relationship between the two
Houses. What it would mean beyond that I can only speculate, but that would be a clear factor. In addition, the way it
works means that most senators share some common characteristics at the time of appointment. I think that would be
less the case where you have terms, whether they are elected or appointed.
Senator Joyal: In the conclusion of your most recent publication entitled The People's House of Commons: Theories
of Democracy in Contention, on page 141, you refer to the Constitution Act, 1867, and you put it in perspective with the
British Constitution. You wrote, "The British Constitution could be amended by
usage, a practice that blinded British politicians to constitutional matters —
politics and the constitution were one."
Then you wrote, "The same cannot be said of Canada."
My comment is that when the British amend their constitution, it is a simple process because they have a
constitution that can be changed merely by an act of Parliament. When we amend the Canadian Constitution, we are
bound by the spirit and letter of the Constitution, as well as the fact that a written constitution has its own arbitrator,
which is normally the court, when there is responsibility devolved to one level of government rather than to the other.
We know that the court has been involved in hundreds and thousands of cases to try to arbitrate it.
My question goes back to the very nature of our Constitution. On the basis of your experience, when we amend the
Constitution in its fundamental structure, should we not seek the opinion of the Supreme Court rather than just move
on the grounds that we will change it and see from practice what will come from that and readjust it in the future?
There is a tendency to blur the lines when we want to change an essential structure in the Canadian Constitution
that they do not have in the British system. In the British system, the constitution is an evolution on a daily basis
through a simple act of Parliament. We cannot do that because we have a written constitution and Parliament is not
the sole arbitrator of changes in the Constitution. The courts are there to maintain the equilibrium and the essential
character of the institution.
Could you comment?
Mr. Smith: I agree. The preamble to the Constitution Act, 1867, talks about the desire for Canada to have a
constitution similar in principle to that of the United Kingdom. Someone could write a book about that phrase.
The more I think about that phrase at one level and some degree that is the constitution we have. Parliamentary and
responsible government, cabinet government, operates largely on unwritten rules, conventions, customs and
understandings. However, we also have a written constitution, which relates very largely to what we find in the
Constitution Act, 1867, because that act says very little about responsible government.
One of the difficulties that Britain faces and experiences to some degree, but it is more so in Canada because it is a
federal system, is that there is a very weak understanding of the conventions and customs of responsible and
parliamentary government. Recently, the Supreme Court has spoken about this. I think it is extremely important.
With regard to the matter at hand, part of that is the relationship between the two chambers, but the act really says
very little about that relationship. I suppose the inference to be drawn is that it is the same relationship as exists in
Great Britain. Well, it is and it is not.
It is not particularly because the Senate is a very different body than the House of Lords. I think it is a big mistake,
as some people have written, to see the Senate as not a carbon, but in some way a copy of the House of Lords. It is just
not and it is not because it is a federation. The Senate was the central institution to accommodate the diverse desires of
the founding colonies and politicians related to federalism.
I think you are right; there is a role for the Supreme Court to help clarify and enunciate the conventions with regard
Senator Joyal: Let me move then to the convention aspect of the Senate. In your book, The Canadian Senate in
Bicameral Perspective, at page 172, you refer to criticism about the Senate.
Largely, and in spite of the criticism reformers direct against the Senate, this has happened because of the use
of the appointment power. It is because of the transformation and appointment that the Senate has a more
diversified membership in terms of gender, language and race than any comparable second chamber in the Anglo-American world or than the House of Commons.
Then you move on to two proposed changes to the convention ruling appointments of senators on the
recommendation of the Prime Minister. You say:
On the selection process in the hands of the Prime Minister and the imbalance in party standings, a major
improvement would result if agreement were reached on the Senate desired composition and if that agreement
were accepted as a guide by the Prime Minister in the use of the prerogative of appointment.
Should we not concern ourselves with the appointment process and the definition of the prerogative of
recommendation rather than on the term of the Senate? In fact, are we not addressing a problem that is not the most
important problem for the Senate to fix presently, which is the terms of senators?
I can concur with the critics of the Senate; it is more on the results of the appointment than on the terms of senators.
It is more the selection of the people who are appointed by the Prime Minister, and the way the Prime Minister
exercises the prerogative, than on the terms of senators, as much as the Senate exercises its sober second thought and
independent judgment or evaluation of bills coming from the House of Commons.
Mr. Smith: Well, I agree, senator. I do not think that there is evidence to support the position that the Senate of
Canada, in its activities and responsibilities, would be strengthened or improved by making it elected, whatever criteria
would inform that election.
I do not think there is anything. Indeed, anyone pressed on the matter can see the wisdom of appointment in a
parliamentary system. The difficulty is the one that you have pointed out and, indeed, it has been discussed in Britain,
is how appointments are carried out and what conventions inform the decision of the Prime Minister in making
recommendations to the Governor General.
Indeed, the appointments commission in Britain, as I understand it, in the emerging reformed House of Lords does
deal with this to some degree. It is different in Britain because there has been a long custom of appointments that try to
maintain some proportionality of political sentiment in the upper chamber. That has not been a strong guiding
principle in Canada, and perhaps it should. In my book, I do suggest there is a minimum where you have to have the
opposition parties represented.
As I understand your question, I would like to see a much closer examination of what principles to guide
appointment would improve the house. I do not think there is any evidence that election would do it. If you ask the
public, depending on how you phrase the questions, you can certainly prejudice the answer — for instance, if you say
do you want another chamber of Parliament that will have politicians and will be based on election, as opposed to do
you want an elected upper chamber.
Senator Hays: Professor Smith, it is always a pleasure to have the opportunity to listen to you, and all the more to
have a chance to have an exchange with you.
Let me begin by referring to your article in Protecting Canadian Democracy. My compliments to Senator Joyal for
the role he played in this series of articles coming before us in the way they have.
You have a specific comment on appointing senators for non-renewable, fixed terms of 12 years. You comment
almost favourably on it saying that it is possible that such an amendment could be made by Parliament alone under
section 44 of the Constitution Act. The possibility is at least worth further study as it raises important issues and has
We are currently in a discussion of Bill S-4, which deals with a fixed term for senators. Its preamble invites
speculation on other matters, such as what is before the House of Commons in the form of this advisory selection
process referred to in Bill C-43.
If we look at Bill S-4, not in the larger context but rather as a bill to have a fixed term for senators, does the
optimism that I sense in your article exist, or are you pessimistic in terms of the constitutionality of such a bill?
Mr. Smith: I believe eight years is too short a term. I know there are many people who would disagree. In the book, I
mentioned 12 years. That is a possibility. As you were reading those passages, most of that is in the subjunctive tense,
which is to say it is hypothetical.
That article or chapter in the book makes it clear; there is no problem with appointment itself. The reason the critics
dislike appointment is they say it somehow impairs the legitimacy of the chamber. I do not accept that argument. There
are difficulties about the selection, but election does not obviate or remove them.
Whether 12 years is better than eight years, I am not at all convinced that terms with election will improve the
performance of the Senate. Its performance, on balance, is generally held in high regard.
Senator Hays: The discussion we have tends to revolve around non-renewable terms of 10, 12, or going to the longer
term of 15 years. Would that Senate be less effective than one appointed as at present until 75 years of age.
Mr. Smith: As I recall, when I was writing that article, most senators are not there for decades. Most are there for
about 12 or 14 years, as I recall. That was one reason for suggesting that figure.
The age at which they are appointed, which comes back to the earlier point that Senator Joyal raised, would not
actually alter senators' length of time in their position a great deal. On average it is 12 or 14 years now. It would not
affect the performance of the work of the Senate in the way that a much shorter term would.
Senator Hays: I agree.
The last point I will cover is the way in which the Senate uses its power, or the degree to which it feels empowered to
use its power. As we all know, the Senate has the same power as the House of Commons, except in matters of
appropriation, supply and money bills, but the Senate seldom uses that power. We amend less than 10 per cent of the
bills that come before us, if you do a long-term average. We have a tradition of deference to the lower house.
My view is that the reason for that is, as an appointed body, the Senate sees a certain difficulty if it took all its power
and used it. Your concerns about an elected Senate are that an elected Senate would use that power. This is an
interesting subject. Gordon Gibson wrote a discussion paper saying one should give pause to electing a Senate with its
Do you agree with me that the Senate defers to the lower house, the house of representation by population, that is
what the Fathers of Confederation wanted, and that is why it is an appointed body? That is what makes it focus on
other things, which you think it does very well. Do you agree?
Mr. Smith: I agree that the Fathers of Confederation wanted an appointed house. To the degree that we have a
record of what they discussed, and we do not have a transcript, it is quite clear that they did consider and they had
knowledge of elected upper houses, and in particular, the upper chamber of the Province of United Canada. That
upper chamber was in the process of becoming elected from the mid-1850s to 1867. They decided against that.
Basically, as one can tell from the record, they thought that it did not fit the understanding of the British style of
It is true that the Senate has great power, except for appropriation. It is also true that it does not use that power in a
manner to thwart the will of the lower house and the government. That does not mean that the Senate's influence is at
all negligible; it is not. In making decisions it is not whether someone vetoes a decision or if they have the power to
veto; it is the potential. It is the need to accommodate criticisms or comments that it would make about improving
legislation. Ultimately the decision rests, where I believe in parliamentary government it should rest, with the
government who is responsible to the House of Commons; that is policies. However, the role of the upper chamber is
much more influential than a simple question of how often it exercises its veto. A study of relations between the two
Houses of Parliament in Canada would sustain that interpretation.
Senator Jaffer: Thank you for giving us your time today. One of the strengths of the Senate is that it flows from its
independence, its ability to represent the interests of minorities that lack the electoral clout to be represented in the
other place. I would like to further explore what Senator Joyal said about protection of minorities.
If we were to opt for a non-renewable term for senators, would that change the impact of Bill S-4 and its ability to
protect minorities as opposed to a renewable term?
Mr. Smith: A non-renewable term would compromise what I see as the fundamental, principal, essential roles of the
You mention minorities, but I also mention the fundamental investigative and deliberative roles of the Senate. For
support, I would say look to the Fathers of Confederation; they thought it was important, and they said so. They see
that as its role. The question then becomes how far can one go in changing the structure of the Senate in its manner of
selection, how far can one go if it will undermine or compromise the kind of role that you suggest, or expanding to the
I think terms would do that because of the higher turnover for the reason I mention in my remarks. You would have
a much more diverse or broader spectrum — I suppose, to some degree, that is what advocates want — of age or
experience or inexperience than is the case now. The Senate seems to me to have a great deal of professional experience
in many areas.
Senator Bryden: I would like to continue on Senator Hays' reference to dealing with Bill S-4 as a stand-alone piece of
legislation and your indication earlier that section 44 is a legitimate method of proceeding to change the term. The fact
is that Bill S-4 and the changing of the term for senatorial appointments does not stand alone.
There has already been introduced in the House of Commons Bill C-43, which is designed to provide some type of
electoral process to choose the candidates that are eligible to be appointed by the Prime Minister or by the Governor
General on the recommendation of the Prime Minister. The Prime Minister himself has indicated that Bill S-4 is only a
first step in a process, of which Bill C-43 is the next step, and he has given some hints as to the next step.
In that context, is it your opinion that the Supreme Court of Canada would find that this is a section 44 amendment
that does not need to involve the provinces?
Mr. Smith: As I have said before, I am not a constitutional lawyer. The difficulty that you express and that some
witnesses articulated, such as Allen Cairns, is that you are being asked to make decisions on Bill S-4 but there are other
potential decisions that will have to be made that have immediate, intimate relationship to the initial decision. You are
in a very difficult position.
I think that the court itself would have to deal with what was before it. If it were a question of terms, the question
would be, could the Senate carry out its functions as it has historically done and as it is the understanding of scholars
that the Fathers of Confederation intended. Can it carry out these functions with an eight-year term, or whatever term
is before them? Then the question is: Can it do this if the senators are elected as opposed to appointed? I do not see
how a court could deal with the hypothetical unless it is before it. On the other hand, I do not see how it can
disassociate that consideration with regard to terms.
I am afraid that is not a particularly enlightening comment, but I can see the difficulty where you have sequential
decisions, or potential decisions, and yet you can only deal with one at a time in sequence.
Senator Bryden: I appreciate what you are saying. What informs the Prime Minister in making appointments to the
Senate? We are starting to get a glimpse, I believe, on what would inform the present Prime Minister. Initially, he made
a commitment that no person would be appointed to the Senate unless that person was first elected. That rapidly
changed because he needed someone from Montreal, and he appointed a senator who had not been elected and put him
immediately in his cabinet.
In addition to the introduction of Bill C-43, which attempts to set up some scheme for the public electing senators
prior to an appointment, the Prime Minister has already elected or appointed in futuro Mr. Brown of Alberta. Mr.
Brown was elected three times by a program that was set up by the Province of Alberta and has been a senator-in-waiting for three years. The Prime Minister has indicated that Mr. Brown, elected by a provincial scheme, will be the
person he will choose to fill a vacancy that is not quite cold yet. Senator Hays has indicated that he will retire in June.
Before the body is cold, they will fill the hole. I would like you to keep that thought for a moment.
Besides that, this Prime Minister, other than the first appointment of someone to get himself a cabinet minister for
Montreal or Quebec, has filled none of the 12 vacancies. There appears to be developing a program where, if we follow
what is about to happen in Alberta, the signal is being given to the provinces,
"If you set up a scheme to elect senators, I will use one of those to fill a
hole. If you do not, the hole or vacancy stays."
That was a very long preamble, but my question is this: Is this something that is possible to be done reasonably
without involving the provinces who were the principal parties to the negotiations that brought about the constitution
that we have now? Would this not be a very fundamental change to the manner in which the Senate is appointed and
Mr. Smith: I would think one could build an argument to that effect, much as when the provinces responded
negatively to Mr. Trudeau's amendment to the Constitutional Amendment Act in 1976, which led ultimately to the
Supreme Court reference on the Senate. Part of what galvanized the provinces was the lack of consultation when the
federal government believed it could make a change to the composition and structure of the Senate using the then
section 91(1) of the old BNA Act.
A similar argument could be made here. If a Prime Minister refused to appoint senators because the provinces
refused to follow a mechanism that the federal government had unilaterally set down as the necessary criterion for
appointment, some provinces could make a comparable argument, that the Senate of Canada is not an institution that
is the sole property of the Government of Canada, in the same way they made that argument before the Supreme Court
of Canada in 1979 and 1980. I am not sure how successful that would be, but here is a parallel logic to it. I am not sure
to what degree the Prime Minister could successfully maintain this position in the long term.
Senator Bryden: I have one other question that does not relate to that line of questioning.
You indicated in your paper and you mentioned it today, that a major role for the Senate at the time that it was
negotiated and put in place was to protect vulnerable minorities. I think you used the term
"a principal role." How has
that role been changed now that we have a Charter of Rights and Freedoms? Much of that role has been taken over by
the Supreme Court of Canada under the Charter.
Mr. Smith: Yes, the Charter does alter the status quo ante by offering a new avenue to protect rights or to challenge
what are perceived to be abuses of rights.
You can argue that that is still a role for the Senate and, to some degree, the House of Commons. I do not think that
the Charter legalizes minority and sexual rights to the degree that it excludes political resolution or political negotiation
of conflict. I would hope not. In the study I did for the Senate, it seems that it is cheaper and faster for the Senate and
for the politicians and political instruments to reach agreement on problems and difficulties than it is for the public to
have to go to courts. There are advantages to courts and the judicial route but there are certainly big disadvantages.
I do not think that the Charter replaces the Senate's role in being sensitive to minorities.
"Minorities" can be defined
many ways; and Canadian society demographically has changed immensely in 140 years. There are strong minority
claims on the political instruments and institutions of Canada as there are on the judicial ones.
Senator Andreychuk: I must disclose my bias here; hopefully, it does not preclude me from asking questions. Being a
previous chair of SIPP, I am pleased that you are centred there.
In my opinion, this bill is a stand-alone bill; the Prime Minister said so at the first meeting of the special committee.
The fact that there may be some incremental expectation in the Prime Minister's landscape is not unusual. There are
many programs put out by prime ministers who say, "I want to do A, and C," but they will be satisfied if they
accomplish one. The Prime Minister said this was a stand-alone bill. I want to look at it as a stand-alone bill.
You are not going into constitutionality; you are going into certain other factors. I do not see how changing the
term, whether it is eight, 10 or 12 years, inhibits the functioning of the Senate in any way and being master of its own
chamber and house.
How the Prime Minister appoints has always been a rather imperfect science. We do not know why prime ministers
make certain appointments. I think this Prime Minister has put more of his agenda out; there is more transparency. I
have no idea how others have been appointed. There have been appointments made of individuals at age 73 and age 74;
there have been appointments that have been left outstanding for some time. They have all had an impact on the
chamber, but I do not think it has been so substantial as to change the nature of the overall work and the conduct
within the Senate.
You say that the average tenure has been about 12 years; that is the average now. Certainly when the chamber
started, and you look at the composition of the Senate 100 years ago, it is not the same Senate at all. We have now
made efforts to include women and minorities of all stripes. That has changed the Senate, but I do not think it has
changed the work we do. It has brought depth, meaning and different points of view, but it has not changed the
operations of the Senate. Would you agree with me?
Mr. Smith: I would agree. The primary functions of the Senate at the time of Confederation remain largely the same
and that is determined by its own view that it is the upper chamber but it is not a confidence chamber and it is not its
job to thwart the will of a government that commands the support of the House of Commons. It focuses on
investigating, deliberating, and representing to some degree particularly minorities. That has always been the case.
You are quite right that the change in geography and demography of Canada from 1867 to now has meant that
different issues come before the Senate, but I do think that when they come before the Senate the Senate treats them
and looks at them from much the same perspective. Whether this would be altered by shorter terms is only a
hypothesis. I can see that shorter terms could change the relationship between the Houses so that the newly active in
politics are in the Senate and in fact move on to the House. That may or may not happen, but it certainly could. It has
not happened in the last century or so.
One can assume that that was the intent of the Fathers of Confederation because they set a minimum age that was
higher for the Senate than the House. They set a property qualification, which the critics say was just to protect
moneyed interests but I think was also a way to ensure more independence for senators who, with that property
qualification, were not as dependent upon political parties, et cetera.
Senator Andreychuk: Following up on your point, you think it is undesirable that a senator may choose to resign
from the Senate and go to the House of Commons. We certainly have one senator who from time to time threatens to
leave the Senate and resume a role in the House and get re-elected. That is within the realm of possibility. I was an
ambassador when I made the choice to come into the Senate because I had the good fortune to be offered a Senate
position. That was very unusual and there was much discussion about that movement in that way.
We have had senators who have moved to become judges. All of those things would be possible as we evolve. We
respond to opportunity and to issues as they come along. I do not see why there would be such a great movement from
the Senate to the House and that such a movement would substantially change us.
I know that we have the same problem when people come from the House. They come with their understanding of
the House and we have to take time with them and explain how we do things in this house.
I can see where there would be some transfer, but I do not see how it legitimizes or frustrates anyone in making a
legitimate choice to move to another House. I do not think that just going to 12 years, eight years, 15 years or four
years would mean that there would be some sort of movement to start out in the House. Are we not looking at another
system in another jurisdiction where it happens, but for a lot of other reasons?
Mr. Smith: I cannot predict what would happen if this change were to be institutionalized. My own view would be
that for that to happen — and, again, it may not be a strong incidence, but on the other hand, it could be — what it
does is alter the relationship that traditionally obtains between the two chambers. It opens the door wider to
politicization of the Senate than currently exists. I know there are critics who say there are enough politics in both
chambers, but I think it would open the door to that potentially.
Always in these matters, you make judgments and you have to balance the pros and cons. Maybe, on balance, the
change is nonetheless seen to be desirable. However, I would predict that this would happen. It would alter the political
system — the same as changing the electoral system. People always talk about changing the electoral system. They say
if we had the results from the last election and we had a new system, these would be the results; but we are talking
about an electoral system for a long time to come.
We are talking here about a change to the Senate for a long time to come. What would happen in five or 10 years is
somewhat immaterial to what will happen in 50 years. In my own view, it is not a point in favour of this change — that
you would change the relationship between the two Houses or create an opportunity to change it — but that is all.
Obviously, people must make their own decisions.
Senator Andreychuk: You are saying that someone within the Senate may be more prone to support the government
of the day with a view to perhaps being in the House; but it is still the prime Ministerial prerogative to appoint through
the Governor General.
Mr. Smith: Yes, it is, exactly. It is the prime ministerial prerogative.
However, let us say hypothetically that there are members in the Senate who are relatively young, who see the
Senate as a kind of proving ground of their political strengths and then would seek the House. People always want to
talk about Australia; this is a good time to talk about it. If you look at Australia, the House of Representatives is the
key institution even though the senators are there longer. The institution holds the government accountable. The
institution can, and in 1975 did, dismiss a Government of Australia. Senators also look to the House of
I do not think there is anything surprising about that but I think one needs to be aware that can happen. Therefore,
rather than keeping the chambers more separate and the Senate more independent, I think it pulls them closer together.
There may be strong arguments for that to happen. My own view is I do not think they are very strong, but some
people may see them as such.
Senator Joyal: In your testimony on September 21, you concluded that this is one reason why the Supreme Court of
Canada needs to be asked for an opinion on the government's course of action.
In your previous answers, you alluded to the testimony of Professor Cairns. Perhaps you have had access to other
testimony that we have heard in the past three or four weeks. Do you still maintain the conclusion that it would be wise
for us to seek the opinion of the Supreme Court of Canada to be convinced that the course of action we are taking is
sound and meets the criteria that the court established in 1980 in its reference?
Mr. Smith: In my view, yes. I am not convinced that a term of eight years would not compromise, undermine or
prejudice the criterion of independence that I understand the Supreme Court of Canada enunciated. Therefore, I think
it would be worthwhile — more than worthwhile, I think it is essential — to get clarity on that particular point.
Senator Hays: In your September 21 presentation, you read from your SIPP briefing note:
Election in whatever form challenges that assumption because it links the senator to a constituency to which he
or she is accountable. Such a change fundamentally alters the federal system and the arrangement of Parliament's
parts as drawn by the Fathers of Confederation. Here is one reason why the Supreme Court of Canada needs to
be asked for an opinion on the government's course of action.
That is something that is specifically provided for in section 42 of the Constitution Act, 1982 and I agree with you.
In fact, I would not even bother referring it to the court. I would say that is close enough to
"election" that the Senate,
using its power of veto, should, as a legislative body, anticipate that is not a good idea, and probably would hear from
the provinces to reinforce such a decision.
Mr. Smith: You said that you are quoting from what I said in September, and that I thought to introduce terms
would upset the structure of Parliament, is that right?
Senator Hays: No, the point I was trying to make is that you premised your suggestion that it should go to the court
as a reference on the fact that you see that it really is more than terms, but rather,
I will not pursue the question. I would rather ask another question because I know time is short and it is indirectly
related, in any event.
The powers of the Senate, under the Constitution Act, 1982, are that an amendment under section 44 is one over
which they have an absolute veto. Under section 42, they have a six-month suspensive veto.
One of the things that, for a short time into the future, concerns me is that as legislators, how should we deal with
what is before us? My own view is, and has always been, that the Senate is in need of renewal. I think you would agree
with that if I remind you of some of the comments you made in your article in the book that I referred to earlier,
Protecting Canadian Democracy. You talk about an appointments commission and a number of things that I think
would be very interesting for us to pursue in terms of strengthening the democratic foundation of the Senate.
We have Bill S-4 before us. It has what it has in the preamble; the Prime Minister has said what he has said,
including "If you think it should be changed, change it." I ask you this as a political scientist, not as a lawyer. Should
we in the Senate not embrace that power? Should we not be looking for ways to reinforce what we have absolute power
over rather than looking for ways to reduce our power by always running to the court to say,
"Is this okay?" Quite
frankly, if we went to the court and they said an eight-year renewable term was okay, I would still have a great deal of
difficulty with that in terms of Senator Andreychuk's point, and I think it would affect the independence of the Senate.
In fact, at the beginning of your presentation, you made the argument that the independence of the Senate is one of its
essential characteristics, which takes us into the language of the Senate reference.
As a political scientist, should we be so concerned about the legal issues given the fact that we have the power to veto
this if we do not think it is a good idea or to amend it into something we think would be acceptable if we do think it is a
good idea — that is, fixed terms for senators?
Mr. Smith: If the Senate or committee agrees that the proposal in Bill S-4 is detrimental to the character and
function of the Senate or that the Senate could not continue to carry out the functions it has performed for some
decades as well under this new proposal, I think it would be advisable for the Senate to just say no. I think it would be
permissible to propose what seems to be a better alternative, taking into account what the Prime Minister said, and
certainly he does not speak alone, as you said, for renewal of the Senate for change. That would seem to me to be
perfectly proper and probably desirable. As you said, you do not want to look at the Supreme Court as a crutch. To a
large degree, these are political questions. Whether it can be done or not may be constitutional, but ultimately they are
political, and that is the role of the Senate, and a role at which it excels, I believe.
The Deputy Chairman: Thank you, Dr. Smith, for spending this time with us. We have appreciated it very much.
Honourable senators, we continue in the latter half of our meeting our examination of Bill C-9, to amend the
Criminal Code (conditional sentence of imprisonment.) This bill seeks to amend section 742 of the Criminal Code to
provide that a person convicted of a serious personal injury as defined in section 752 of the code, either a terrorism
offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of
imprisonment is 10 years or more is not eligible for a conditional sentence. A serious personal injury offence is defined
as an indictable offence, other than treason or murder, involving the use or attempted use of violence against another
person. It is also defined as an offence involving conduct endangering or likely to endanger the life or safety of another
person or inflicting or likely to inflict severe psychological damage upon another person. The offence must be one for
which the offender may be sentenced to imprisonment for ten years or more.
Conditional sentencing was first introduced in Canada in September 1996, and allows for sentences of imprisonment
to be served in the community rather than in a correctional facility. Conditional sentencing is, therefore, a midway
point between imprisonment and sanctions such as probation or fines.
The primary goal of conditional sentencing is to reduce the reliance upon incarceration by providing the courts with
an alternative sentencing mechanism. At the time of their introduction, conditional sentences were generally seen as an
appropriate mechanism to divert minor offences and offenders away from the prison system. However, conditional
sentences are viewed by some in a negative light when used in cases of very serious crime.
To discuss this further with the committee members, we have with us today Dr. Anthony Doob. Dr. Doob is a
professor at the Centre of Criminology at the University of Toronto. He has been teaching at the University of
Toronto since 1968 and has been associated with the Centre of Criminology since 1971. He served as Director from
1979-89, and was one of the members of the Canadian Sentencing Commission from 1984-87. He is a prolific author of
books and reports covering a wide range of topics, including public knowledge and attitudes about sentencing and
other aspects of the youth and criminal justice system, the operation of the youth justice system, the deterrent effect of
sentencing, and the processing of cases in the criminal courts.
Professor Doob, with that lengthy resume, I welcome you to the committee. The floor is yours, sir.
Anthony Doob, Professor, Centre of Criminology, University of Toronto: Thank you very much for inviting me to
discuss Bill C-9 with you. When the Minister of Justice introduced Bill C-9 in May of 2006, he described it quite
explicitly as making safe streets and communities a priority, noting that front-line officers, especially the police, have
stated loudly and clearly that rethinking conditional sentences is necessary to make our communities safer. The
framing of this change in our sentencing law was clear. It was supposed to reduce or contain crime. In this context, I
would like to make three rather straightforward points.
First, this Bill C-9 will have no measurable effect on public safety. Indeed, it should be remembered that judges are
explicitly required to consider public safety in thinking about imposing a conditional sentence. The current law states
that the court must be ". . . satisfied that serving the sentence in the community would not endanger the safety of the
community. . . ." In addition, the conditional sentence is clearly not available for anyone who would in its absence
receive a sentence of two years or more; hence, the most serious of our offenders were never eligible for a conditional
sentence. More to the point, a broad range of research carried out over the past 40 years demonstrates that increasing
the number of prison sentences will not reduce a person's likelihood of reoffending, nor will the kind of variation and
sentence severity that we are referring to here affect the general deterrent impact of sentences.
This bill is not, therefore, about public safety. Whatever the criminal justice system can do about public safety,
putting people in prison for short periods of time, in other words, a maximum of about 16 months in this case, rather
than punishing them appropriately in the community, will not make a difference to public safety.
My second point is that there are social costs of perpetuating the myth that investing in additional prison cells, or
increasing the number of people in Canada's provincially administered prisons, is the most effective way of stopping
crime. If cities, provinces and the federal government were interested in reducing crime, they would think more about
crime when allocating or cutting budgets across a wide range of different other areas of life, primary and secondary
education and health promotion activities, for example.
Instead of looking to quick fixes such as changes to one section of the Criminal Code, the government is
contributing to the incorrect view, apparently held by many Canadians, that modifying the Criminal Code is the surest
way to affect levels of crime in the community. It is not.
In addition, bills such as this help to convince Canadians that judges, through their sentencing decisions, are
responsible for crime. More to the point, as long as Parliament and the people of Canada focus on sentencing laws as
solutions to crime, we will have neither an effective crime control policy nor a coherent sentencing policy. This bill is
about sentencing; it is not about crime.
In order for you to understand my view of Bill C-9, you should know that from the time the conditional sentence of
imprisonment was first introduced in the mid 1990s, it appeared to me that there were problems with the design of this
sanction. Over time, many of these problems have been settled quite sensibly in the decisions of various courts,
although I believe that the sanction itself could use a legislative overhaul that might make explicit in the law the
changes that have been made by court decisions over the past 10 years.
In that context, when Bill C-9 was first considered by the House of Commons, various people suggested that if
Parliament felt the need to restrict the use of conditional sentences, that the restrictions be not dramatically different
from the form of the restrictions that are in the bill before you.
I certainly find that the restrictions on the use of conditional sentences in the current version of Bill C-9 to be much
less objectionable than those found in the bill as it was first introduced into the House of Commons. However, the fact
that controversy about conditional sentences still exists suggests to me that perhaps a useful thing for you as to do
would be to consider my third point, and that is, I would urge you to consider taking on a thorough and thoughtful
analysis of the problems of sentencing in Canada. This is not being done. My own view is that the controversy about
conditional sentences is really a controversy about sentencing more broadly. More importantly, the problems with
sentencing are much broader than just the problems of whether sentences are too harsh or too lenient, or whether
conditional sentences should be given in this or that case. Indeed, if the only problem with sentencing were one of
those, we would be in fairly good shape.
Some of the crucial problems with sentencing are easily illustrated by a careful reading of section 718 of the Criminal
Code. The section states that
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the
law and maintenance of a just, peaceful and safe society by imposing just sanctions that have, and I will emphasize, one
or more of the following objectives.
Six objectives are listed. The judge is required to choose at least one and up to six of these objectives, in any
combination that he or she feels are justifiable under the circumstances for the case that is being sentenced. Little
guidance is given either in the choice of objectives or how those objectives might be achieved.
The objectives are quite varied. Three have to do with crime control goals. Two might be thought of as being
broadly expressive or educative, and one might be considered to be reparative.
At least in theory, even before a judge hands down a sentence, the judge has some complex assessments to make.
Since the judge can choose one or more objectives, it turns out that a judge is choosing from at least 63 different
combinations of purposes. Obviously, judges do not routinely go through all the different combinations of sentencing
purposes before handing down each sentence, but in theory judges have to choose from among a large number of
different combinations. That is the direction Parliament has given our judges. It is no wonder, when faced with an
array of sentencing objectives, the judges differ on whether a given sentence is fit. It is no wonder that people who hear
a small amount about a case and consider for themselves what they think sentencing is all about are likely to arrive at a
different conclusion from that arrived at by the sentencing judge; they may well have focused on different objectives.
Would it be possible for Parliament to give judges a clearer and, I would suggest, a more realistic statement of the
purpose of sentencing? I think it can, and the evidence for my conclusion is easy to find. The Parliament of Canada has
already endorsed a much clearer statement of purpose and principles of sentencing in a somewhat different context.
However, the judge's sentencing task is even more difficult than what I have described. Section 718.1 requires judges
to hand down sentences that must be proportioned to the gravity of the offence and the degree of responsibility of the
You can see what the challenge is that judges are facing. They must choose the specific set of objectives from a large
array of objectives. Then they must hand down a sentence proportionate to the harm that was done while still fulfilling
that original objective. Maybe now is the time for the Senate to step in, look carefully and thoughtfully at the
sentencing provisions of the Criminal Code, and consider what would best serve Canadians.
I would like to give you one very specific illustration of what could be done. My own view of sentencing is simple.
Whatever else you say, sentences punish. Most of us, I suspect, endorse the view that sentences should reflect the
seriousness of the offence. My ideal sentencing scheme would have proportionality as the starting point. Should the
sentencing provisions of the Criminal Code be modified to make this clear, and should the Criminal Code indicate that
the various purposes of sentencing might be accomplished by drafting sanctions within the range defined by offence
I do not know whether there would be consensus for such an approach in the sentencing of adults in Canada, but I
will remind you that Canada legislated a similar approach to the sentencing of youths in the Youth Criminal Justice
Act, which says that the sentence must be proportionate to the seriousness of the offence. Other goals, such as
rehabilitation and reintegration of the offender into society, are to be accomplished within the range defined by the
general principle of proportionality. Proportionality, in effect, sets the upper and lower limits.
We have models of how we might improve sentencing. We have not moved far in Canada in making sentences
understandable, predictable and defensible. Perhaps you as senators could start that process so we could have a real
debate about Canada's sentencing structures. Such an inquiry could provide the basis for serious debate about how we
want to punish those who have committed criminal offences and how we might help focus on important ways in which
our criminal law could be improved.
The Deputy Chairman: Professor Doob, some years ago, this committee decided it would undertake exactly such a
study on sentencing in Canada. It fell by the wayside of the pressure of legislation instead, because this is the busiest
committee in the Senate when it comes to legislation.
Senator Baker: I congratulate the witness and thank him for coming upon the invitation of the committee. I also
congratulate him for the contribution that he has made over the years to the law as it is interpreted in our courts.
When I went to WestlaweCARSWELL, I noticed that, in the past three years, our witness today has been quoted in
every province and in each territory in cases involving conditional sentencing — at least one case in the past three years
in each province. That is quite commendable and you have made quite a contribution to our law and the way it is
interpreted in our courts. I sincerely congratulate you. Cheryl Webster also wrote a paper with you.
Where you are quoted on the subject of conditional sentencing, there is practically an identical reference; the words
vary, but the meaning of the paragraphs remains the same. All of the quotations mention that in more recent or most
recent research in Canada studied by Doob and Webster, sentence severity and crime, accepting the null hypothesis,
challenges the notion that harsher punishments have an increased deterrent effect. It references Parliament's attitude
and the attitude of the courts of appeal in relation to that. I just read from was the Yukon Territory Territorial Court
2003 in R v. Reid.
If I go to the province of British Columbia, 2004, we get approximately the same type of analysis of your position.
You continue to challenge the notion that harsher punishments have an increased deterrent effect. If I go to Manitoba,
to the Court of Appeal, the same reference is made to you, but it goes this way,
"There is an increasing body of
research that casts doubt on the idea that harsher punishments reduce crime rates in western populations. This research
is summarized in a recent article by" — and then it quotes you from that particular study I quoted a minute ago.
Paragraph 35: "However, neither the Parliament of Canada nor in this case the
Manitoba Court of Appeal has to date abandoned general deterrence as a valid
It appears as if that is the judgment in most of these cases that some of us here in the Senate have looked at in recent
case law. Do you have any comment on that?
Is it that perhaps in the statements that the courts have not abandoned general deterrence as a valid sentencing
principle, that in this particular bill before the Senate, in fact the Government of Canada is further reinforcing that
Mr. Doob: Yes, my concern is that it is reinforcing the view, the hope, based on no evidence that we can solve the
problem of crime, at least in part, by giving harsher sentences.
The difficulty is that although the overwhelming weight of evidence is clear that sentence variation within the kind
of range that you would expect, or that one could test for in a Western democracy, will not make any difference, the
hope is that somehow it will. There are many good reasons to suspect that it will not, and certainly the empirical studies
suggest it will not, but the difficulty is that as long as governments continue to endorse this view, people will turn to
sentencing to solve the problem. That has a distorting influence on the sentencing process, but it also distracts us from
perhaps better ways to approach the issue of dealing with crime. In that sense, I am encouraged by the Youth Criminal
Justice Act, which says that sentences are supposed to be proportional and avoids the issue of suggesting that that will
necessarily make us safer.
Senator Baker: How well known are these sentencing judgments? Not everybody reads case law. Is that one of your
Mr. Doob: I think what happens is there is really a disconnect between what social scientists know and the way in
which judges interpret law. The idea that judges can stop crime by giving harsher sentences is a long-standing part of
our criminal law. Turning that around will take some time. I guess some are more patient than others.
The Deputy Chairman: Senator Baker reads case law, as you can tell.
Senator Baker: This will be my final question, if I am time restricted.
There is a famous case here in Ontario, the case is called R.v. Hamilton and Mason. It went to the Court of Appeal.
Professor Doob, you were under cross-examination in that case. This is a sentencing judgment, and for 12 pages you
are quoted extensively on two days of cross-examination. I mention this case because the minister came before us and
he mentioned the cases that justified the changes that were under consideration.
This was an interesting case of two women who were both single mothers, Black, with children. They never had a
criminal record. They had been used, according to the judge, by a drug distribution hierarchy targeting their
vulnerability to bring cocaine across the border, and they were caught. They immediately pled guilty, expressed
remorse. They were first-time offenders. Normally, they would go to jail. That is the law as interpreted by the Ontario
Court of Appeal, as you know.
You gave extensive evidence. Steve Coughlin of the Dalhousie University Law School pointed out that this was a
dramatic change in sentencing because of the conditional sentences. However, it was based on Justice L'Heureux-Dubé's opinion and the minority opinion, in a case called R. v. S. (R.D.) that, as the Chief Justice said that the
importance of perspective and social context in judicial decision-making must be emphasized.
Briefly, the conditional sentence was that they were to remain at home for a year and they were only allowed to go
outside for a four-hour period per week to arrange for food, clothing and other items and to take their children back
and forth to school and to church, to religious ceremonies and so on. There were very strict provisions in this particular
The Court of Appeal did not overturn the judgment but they said the judgment was wrong, that the judge had gone
too far in that he went even further than I think you had suggested. I am not too certain of that, so I want to ask you
what will be on everyone's mind. The conditional sentence handed out by the judge was sensible in anyone's
estimation, but if you followed the standard in the Court of Appeal, as the Court of Appeal said, the women should
have gone to jail and stayed there for a considerable period, about three years. A conditional sentence was given,
however, because of their particular circumstances.
What do you have to say, after the fact? About 18 months ago, the Court of Appeal brought down their decision.
The Court of Appeal mentions you for 10 pages. The actual judgment mentions you for 12 pages. What do you think
about it all when you look back on conditional sentencing and what the judge did?
Mr. Doob: There are two main points that I would like to make. First, the Court of Appeal was — I am trying to
think of the proper word — wrong in its assessment of the likelihood that there would be a different deterrent effect of
a conditional sentence of imprisonment and a two-to three-year penitentiary sentence. I think it is naive of them to
think that drug couriers such as Hamilton and Mason would somehow be deterred by the longer sentence rather than
the conditional sentence. Certainly, the evidence would suggest that it will not make any difference.
I would also have said that the appropriate way of thinking about sentencing in that case would be to start with the
seriousness of the offence. In some sense, I am old-fashioned. I believe that sentences should be proportional to the
harm that is done and the person's responsibility for that harm. When I look at Hamilton and Mason and ask, how
important was their role in increasing the supply of cocaine into Canada, they were pretty unimportant. They
happened to be the people in whose bodies the cocaine was carried, but that is about it. They are not cocaine importers
in some classical sense. They and Air Canada brought the cocaine into Canada and that was that. They committed an
offence; no one was denying that they committed an offence.
My way of sentencing that case would be to say that cocaine importation is a serious offence and the people who
were responsible for cocaine importing should be dealt with seriously; these people had a minor role. Therefore, I
would have, on a proportionality basis, have given them something more akin to what Mr. Justice Hill gave them,
which was a conditional sentence. The conditional sentence in that case was a perfect example of why it should be
given. Hamilton and Mason, as you mention, had young children. One of them was in court one day that we were there
because her babysitting arrangements had fallen through and she had no other place to have her child other than lying
on the bench in the court. The sentence Mr. Justice Hill gave to both of them was, as you pointed out, relatively severe,
especially as one can imagine what the dwellings of both of these single mothers on welfare were likely to be like, when
you consider that they were being forced to stay there for almost all of 24 hours a day, seven days a week for a long,
long period of time. It is a pretty severe sentence. I would have done it just on severity of sentence. As I said, I would
not have pretended that somehow using Hamilton and Mason as resources to keep Canada free of cocaine would
work. In effect, that is what a deterrence model says: We will take this particular offender before us and use him or her
as a resource to deter other people. I would rather say, "Look, they have done
something that is bad but not terrible, and let us punish them for it and get on
Senator Baker: I have read the cases carefully. What you are saying is that in this particular case they had no
criminal records; they were very poor; they were taken advantage of. In fact, the substances were ingested, some of it
broke, and one of the women was hospitalized.
This brings us to the question, namely, that when one imposes minimum sentences and when one imposes
restrictions on conditional sentences, one takes away the ability of the judge to make a determination that should be
made in a particular case.
Let me ask you why, then, you suggest in your address to us that we should be looking at the court decisions that
have been made and adjusting the law to assist judges to make determinations that are perhaps established in case law
in other jurisdictions and to have a uniformity of sentencing?
Mr. Doob: The courts have over the years, as I implied, cleared up some of the issues having to do with conditional
sentences. One of them that is more clear than it used to be is the notion that somehow a strict reading of the code
would suggest that a sentence length should be determined and then a determination should be made as to whether that
sentence should be served in the community or in prison.
The court has made it clear that that strict equivalence of a length of time in the community and a length of time in
prison need not be held to. You can give a longer conditional sentence than the sort of equivalent sentence of
imprisonment. I would look at things like that and say, "Look, we have perhaps a section of the Criminal Code that
could use some attention." My concern is that this bill puts restrictions on the use of conditional sentences. We do not
have any evidence that restrictions are needed.
It is true that you can always find a case that based on at least a report on it, would appear to be unusual. I read the
cases that the Minister of Justice referred to in the House of Commons when he introduced the original bill, and it is
true that those cases looked unusual; they looked to me as if they were unusual cases to be receiving a conditional
sentence of imprisonment.
I also have a certain amount of respect for courts in the sense that all were appeal cases. All of those were handed
down by a trial court and were endorsed by an appeals court, as I remember. Unfortunately, I found the decisions of
the appeals courts to be lacking in some of the important details. I did not go back to the transcript. However, I
thought four judges, typically a single trial judge and three appeal judges, have said that this is all right. To second
guess them with inadequate facts is a bit unfair.
At the same time, our problem is that we do not have a clear statement about sentencing, notwithstanding the fact
that we have a proportionality principle written into section 718.1. We have a grab bag of objectives. As long as the
Parliament of Canada is saying to judges, "Maybe you should deter serious kinds of offenders," whether it is a
Minister of Justice or an ordinary citizen who looks at a case and says, "Look, these are serious kinds of things. Why
did you not do a bit more and give a hasher sentence because maybe we would have less of that?" The difficulty I see is
that the Criminal Code is making a promise that we know we cannot fulfil.
Senator Banks: Thank you, professor. I think that the chair and I are the only people in this room who are not
Mr. Doob: I am not a lawyer.
Senator Banks: Good, that makes me more comfortable. I have the temerity and I hope, the chair's indulgence, to
move away from the bill before this committee and talk about the landscape. You introduced that idea when you said
that maybe we would take a step back and look at this whole question.
For a couple of years, another committee, chaired by Senator Nolin, looked at questions that had a lot to do with
sentencing on particular matters and the degree of severity of those sentences. That committee arrived at the same
conclusions to which you have referred here and elsewhere, namely, that there is no evidence of an increased deterrent
effect of longer, stiffer or harsher sentences, depending on how long they are and where they are served; many people
think that longer sentencing obtains the exact opposite effect. I believe that is largely because when crime increases,
which it is at the moment, society does not know what else to do. It does not occur to us to say that maybe there is
something else to do, other than to say, "We will hit you harder, keep you in there longer or put you in a worse place."
Statistically, I think it can be demonstrated that it is counterproductive and counterintuitive. Our prison population
has been about the same for a long time, the increase in crime has not been affected in a deterrent sense at all by those
sentences, unless you could argue that it would have increased even faster if we had less harsh sentences.
During the course of that study, we talked to many criminologists and penologists, some of whom have argued that
we must take a huge step back with objectivity, which is extremely difficult for us. As humans, when a crime has been
committed and we look at the victims of the crime — and sometimes, sadly, their survivors — we naturally want
retribution, revenge and to hit back. Many folks argue that the question of how to deal with people who have been
convicted of these things needs to be looked at through an entirely new lens. That is extremely difficult for humans to
do. It is difficult to ask, "Is there some other way that we can deal with this problem?" It runs counter to our whole
cultural concept of imprisonment and punishment, corporal and otherwise.
I hope that it is appropriate that I goad the professor to go further in that direction and maybe even leave the
question of the code as it exists and talk about the idea that he had about sentencing.
I know it would be incremental, but should we move away from our current view about putting a guy who does
something bad in prison? We have already said that we will not beat him anymore. We will not use the lash and we will
not use torture. Do we need to go further in that direction? Would that be a useful thing to look at in the landscape of
this and other parts of the Criminal Code?
The Deputy Chairman: I will allow a brief answer to a long question unrelated to the bill.
Mr. Doob: In terms of some of the things that you said earlier in your question, the first thing we must realize is that
levels of crime and levels of punishment in societies are independent of one another. The clearest example I can give is
some work that Ms. Webster and I have done looking at Canada, the United States and Britain. Canada and the
United States, interestingly, have similar patterns of crime. In terms of violent crime and homicides, in particular,
American rates are obviously much higher, but we have parallel rates here in Canada. We do not talk about the crime
drop that occurred since the late 1980s the same way the Americans do because our rates during that time were not as
high. You see a similar pattern, yet our imprisonment patterns are completely different, as you have already
mentioned. In the last 25 years, the Americans have increased their imprisonment rate about six fold, and we have the
same imprisonment rate that we had in the 1960s. Generally speaking, most criminologists would say that the level of
imprisonment is not a way to go.
How we deal with sentences is the critical issue before this committee. Maybe I am not as adventurous as some other
people have been, but we would do well to say, "Let us start with and be clear about what we want to do with
sentencing." As I said, I would be quite content if we started with the assumption that we will try to give out
proportional sentences. We did that with youth, and one of the strengths of such an approach is that it is
understandable and it fit most people's intuitions. One of the reasons that youth custody rates in Canada have gone
down is that a substantial amount of crime is relatively minor. In addition, with the pressure on judges to find
equivalent non-prison sanctions — sanctions that punish but which do not necessarily involve the destructive aspects
of prisons — judges are being more creative in keeping people out of prison, thereby reducing the likelihood of the
negative impacts of prison, but also reducing generally the social costs of imprisonment.
That is one of the advantages, to take it back to Bill C-9, of the conditional sentence. If a judge is unambiguously
required to hand down a sentence that is proportionate to the seriousness or the harm that is done, if the judge can do
it with a conditional sentence, we should all applaud that sentence. We are saying that this would be not equivalent to a
particular kind of prison sentence, but proportionate to the harm that is done.
Going back to Senator Baker's questions, I looked at Hamilton and Mason's penalties and tried to imagine what
their lives would be like for the next 12-15 months. That was a serious penalty, especially with children around. It does
not involve prison, so it does not mean apprehending their children and handing them over to Children's Aid Society et
cetera. We all benefit from that, but they were punished; there is no ambiguity about that in my mind.
Maybe a starting point would be to say, let us see what we can do. Even what we call restorative approaches to
sentencing, and what we have endorsed in various ways in the Youth Criminal Justice Act, are quite often punitive
from the offender's perspective. They are punitive in the sense that they respond to the harm that is done in paying
back the victim. We cannot glamorize the notion of restorative justice without remembering that someone is doing that
Senator Jaffer: You said that the pattern of crimes in the U.S. and Canada are similar but the sentencing patterns
are different. Are we moving to similar sentencing patterns?
Mr. Doob: The answer is we have not moved there yet. Whether or not we will is difficult to tell.
When Ms. Webster and I first plotted imprisonment rates for Canada from 1960-2004, we were surprised by the
pattern. We were surprised to see a straight line in a sense, with some variation up and down. What we do not know
what it is made of; it may be overall, we still have the same rate of imprisonment we had in the early 1960s, but the kind
of offenders in prison may have changed over time.
The simple answer, and this may be more hope than an answer, is that we do not seem to have the optimism that the
Americans have, or now the British seem to have, about the ability of prisons to solve the crime problem. We have
never looked to that form of solution to crime.
The Americans moved from an extreme form of sentencing in the 1970s to a very different form by the early 1980s.
Our sentencing system is relatively stable in comparison. The Americans moved from a rehabilitation-oriented system,
which they then became disillusioned with in the 1970s, to a very punitive system. Although there are cracks in that
system, they seem to continue to endorse it.
I do not know whether we are moving in that direction, and I am obviously concerned. I am obviously concerned
when the government brings in — it has not gone anywhere yet and you folks have not seen it — the mandatory
minimum bill. As it was introduced, it was not as terrible as it could have been. It was incrementally more restrictive
than the 1996 mandatory minimum. In that sense, it was constraining the ability of judges to hand down appropriate
sentences more than the current law does; but it was not quite as bad as it could have been. On the question about what
will happen in the future, you have a lot more to say about that than I do.
Senator Jaffer: Professor, I want to thank you for your paper. You gave us a great summary, namely that this bill is
not about crime, it is about sentencing. I have not been on this committee as long as some of my colleagues, so I take
your remarks about studying the issues of sentencing to heart.
When you talked about the severity in the Hamilton and Mason case, I sometimes feel that people think conditional
sentencing means you go home and you do not go to jail. However, people that I have represented have often said that
going to jail would have been better because the terms of conditional sentencing are much tougher.
The idea of conditional sentencing is that we do not throw away the key when we send people to jail. They have to
come back into society and become contributing members of society. Conditional sentences are one way in which you
can keep them within society so they can mend their ways. Is that the correct way of thinking?
Mr. Doob: Yes, and in connection to that statement the Americans are now very worried that they have tens of
thousands of people being released into the community every year who have served very long sentences. Those people
are ill equipped to cope in society.
The problem of imprisonment is that it is easy to say if we take 100 prisoners and put them in prison, they will not be
committing offences. There are two problems with that approach. One is that after some period of time they will get
out, and then we will have to deal with them. Second, there are the costs associated with keeping someone in prison. A
year in prison costs between $60,000 and $100,000. That is $60,000 to $100,000 of public money that will not be used
for something else. Almost all of the assessments say there are better ways of using public funds for public safety
purposes alone than putting people in prison.
The reintegration issue is a huge one. The issue of how you punish someone must be looked at in terms of the long-term interests — not so much in terms of their interests, but also the societal interests.
It is easy to say that Hamilton and Mason were lucky to serve a conditional sentence; but I would also argue that we
were lucky because their children had at least one parent to live with during that time. They had support through both
the welfare system and the probation system. There were a number of different opportunities. At the same time, I have
no doubt in my mind that they were punished. A little experiment that we could all go through, if we were interested in
so doing, would be to spend a week in the summer in a small apartment with no air-conditioning without going out,
without being able to go out without having to obtain permission from someone perhaps to get out for an hour once a
Senator Jaffer: I want to put on the record that you believe this bill will not affect public safety — you already said
that. In addition, I wish to be clear that the bill that was in front of the House of Commons was not this bill.
Mr. Doob: The original bill certainly would not have either.
The other thing to remember is that conditional sentences deal with offenders who at most, will receive a sentence of
two years less a day. We are talking about people who will be serving, at maximum, 16 months in a provincial
institution. These are not the serious, violent offenders.
People are concerned about a Paul Bernardo receiving a conditional sentence. Those folks are going to penitentiary,
and they will be there for a long time. There will be no discussion about conditional sentence. Conditional sentences
are an alternative to imprisonment for people on the bottom end of the sentencing dimension.
Senator Jaffer: Professor, from what you have said, I discern the fact that you believe more discretion should be
given to judges.
Mr. Doob: I would like Parliament to constrain judges about what sentencing is all about. I do not like the idea that
every judge can go to section 718, choose purposes and create sentences that are justifiable given the purposes they
have chosen. I do not like the idea that the sentence can be different from a sentence from another judge. In that sense,
I would like to constrain judges in terms of what the sentence is supposed to accomplish. After that, I think judges may
need some guidance. I want judges to have the power to hand down fair sentences. I think sentencing is more about
fairness than anything else. It is important that judges not be constrained on their ability to do that.
In the introduction it was mentioned that I was on the Canadian Sentencing Commission. This commission
recommended 20 years ago that we have guidelines, but they were presumptive guidelines. The word presumptive is
very important in law, as you well know. It means the guidelines were much broader than any guideline system has ever
been talked about in the United States. Even though they were broad, the recommendation was that judges should be
able to depart and the only constraint on judges in departing was they would have to provide reasons as to why this
was something that did not fit into the guidance from another body. I would have been concerned if we had rigid
guidelines that were a minimum and maximum sentence.
Senator Jaffer: Is it because the judges hear the whole case? They have all the circumstances and this is not a cookie
cutter project; every case is different.
Mr. Doob: The problem is that every case is different. Senator Baker brought up the case of Hamilton and Mason. It
is a good case to think about in this context. Ms. Hamilton and Ms. Mason, as Senator Baker pointed out, swallowed a
substantial amount of cocaine with the intent of importing it into Canada.
When you take that same behaviour and apply it to somebody who is wealthy, doing it for their own financial
benefit, and will get full profits rather than a pittance, which is apparently, what these people received in risking their
lives, you may say the behaviour is different, but their responsibility in those two scenarios is quite different. I want
judges to look at that difference, and I want them to have to think carefully about how serious each of those two sets of
cases and all cases are. I think that is a very difficult decision.
By saying, sentences should be proportional; I have only answered a small amount of the problems. What do we
mean by proportionality? To what extent is a person's circumstance and intent important in determining the outcome?
There are a whole set of questions that I think are important and are left unanswered by simple statements about
It seems to me that we leave that to judges for good reason because it is important for somebody to sit down and be
responsible for determining whether a case has a certain level of seriousness and, therefore, must be provided a certain
kind of sentence. That is a judicial function.
The Deputy Chairman: This is a very short bill, and it applies only to sentences of less than two years but for which
there is a maximum term of imprisonment of 10 years or more. The judge, in his or her wisdom, may impose a sentence
of less than two years and be satisfied that the service of the sentence in the community would not endanger the safety
of the community. It is very narrow. You have said it will only apply to people who are sentenced to two years or less.
You have plotted prison rates. In your opinion, what percentage of cases in Canada this law would affect?
Mr. Doob: I think a very small proportion. I think it is a very small proportion because judges are not likely to be
giving out conditional sentences to serious personal injury offences partly because if they are serious, they will be two
years or more.
If there were some extraordinarily important reason that this person should not go to prison, my guess is that there
would be other ways in which the criminal justice system would avoid imprisonment for such a person.
I will not suggest this will fill up provincial institutions and make things unworkable in the system. The major
offence categories, which were originally excluded from conditional sentences by the bill as it was first introduced into
the House of Commons, have left. You can now give a conditional sentence for frauds over $5,000, for break and
enters and so on.
The bill is considerably less restrictive on fair sentencing than it was previously. For that reason, in my opening
remarks I focused a little bit less on the bill itself than on the implications of what Parliament is doing in passing a bill
for this purpose.
The Deputy Chairman: Is this bill meant to inform the public that this government is hard on crime?
Mr. Doob: I am afraid that is what its purpose is now. To be honest, I was very surprised by the original bill. I was
surprised in how crude in was in its approach.
If you remember, the original bill said that any offence punishable by 10 years or more was excluded from
conditional sentences. It did not take any of us very long to ask, do you really want to exclude break and entering a
dwelling, fraud over, this, that and the other thing that do not fall into this category? It could be done a more clearly.
As I said, the problem is the conditional sentence has similar characteristics to the Young Offenders Act of 1997,
which is a lightning rod for people's concerns. The Young Offenders Act was blamed for virtually everything young
people were doing.
I think the sections of the Criminal Code dealing with conditional sentences have a bit of that. Somehow, the
implication is that serious offenders are receiving house arrest and walking away without punishment. I think that is
simply not true. We have before us a bill that is a symbolic attempt to stop a perceived problem.
The Deputy Chairman: It is reinforcing public perceptions where there is no problem?
Mr. Doob: I think the bill does that. If the bill becomes law and is forgotten, life will go on. I still think we have a
serious problem with sentencing.
If we had a more coherent structure for thinking about sentencing, I think we would have a better debate about Bill
C-9. If there are problems with conditional sentences, let us see what exactly those problems are and if we can fix them.
Senator Andreychuk: I thank the witness for putting forth the broad debate. You are talking about something more
fundamental than Bill C-9, which is your opportunity to state the dilemma in sentencing. That is a fair comment to
make, that we should be mindful as parliamentarians about the role of sentencing and how it is going. The further
debate, which is one of my preoccupations, is that when there is some conceivable difficulty in the community, we
always have a legal answer; we go to the courts, to the point where we see parliamentarians saying, this is getting dicey
or difficult; let us get a judicial opinion before we go any further.
The reliance on the courts is something we should reflect on equally in sentencing. I feel I am back 30, maybe even
40 years, when we talked about the very same problems.
In coming into the Senate I have heard virtually all of the governments say, here is the problem. This legislation will
solve it. In that context, we should reflect again where we are going and why we are going there.
With respect to sentencing, you have pointed out the dilemmas. There is a real concern in our communities about
safety. Safety has many aspects. It takes into account the offender and what is done with him. There is also a statement
about what we find intolerable. Denunciation has always been a part of sentencing. I thank Senator Baker for bringing
up the case. You talk about two young people who were caught. You think it was minimalist, a conditional sentence fit
them. The courts have to take into account denunciation. Many people of that ilk are now being used and abused too
easily, and they become part of the criminal chain. It is something that the courts have to look at, in a way of
denunciation. There is also a debate about legalizing or not legalizing drugs. One cannot simply say these two poor
fellows and this was correct. I think you have to take these two people but you have to look at other factors in
sentencing, and denunciation is one of the factors you have not discussed. You have talked about some of the others.
Equally, we look at the offender, and it is true to the extent we can. We have to think of children and being
separated from a parent. Equally, some children should be separated from their parents. I have seen teenage children
and wondered why they were not taken by social services much sooner. Some parents lead their children in the wrong
direction. You may weigh the parental needs. All of that goes into it. I do not think we should make this one case as the
hallmark of all conditional sentencing.
My whole point is that this is a compromise bill, not just tough on crime from the government. The government
introduced a different bill. This is the House of Commons decision of all parties having an influence on this bill. They
are talking about getting tougher on crime because there is safety, security, and denunciation.
You and I could talk a long time because I am not sure that I even agree with you on the Youth Criminal Justice
Act. It will work if we load up the front end on preventative services, which we always do in the first couple of years.
I would like to reassess the Youth Criminal Justice Bill to see if it will be as successful as the Young Offenders Act. I
think the juvenile justice system has struggled to try and get the preventative and ends up with the curative. We have a
long way to go in all of this. In the confines of Bill C-9, the minister came here and said it was not broad. It will touch
certain kinds of cases, and within those cases, is there a need for this bill? I recall Senator Zimmer passionately talking
about one case where it might have made a difference.
Will it serve a useful purpose and address the whole issue of denunciation on the broader philosophical debate?
Mr. Doob: Let me give some quick answers to the question. We could discuss any individual case. The Hamilton and
Mason case is a good example.
It is also quite possible that even if we had a very coherent system of sentencing such that offence seriousness was the
determinant of the severity of the sentencing, we would have a serious but focused discussion about what the sentence
should be for those two women. Having a clear set of principles would focus the discussion. Maybe we would end up
differing and would not agree as to the seriousness of their roles, but at least we would know what we were arguing
about. I would not be arguing reintegration and somebody else arguing deterrence and somebody else arguing
The problem with the bill is that the government is reinforcing a view of the ability of the law to protect us. We have
a law that says that all of these things are offences. That is important. It is important that we criminalize certain
behaviour and at the margins, we will discuss whether certain things should be criminalized. When we turn to the law
to create safety and security, we are on thin ice. We are on thin ice because we cannot deliver and not doing other
Continuing the view that there is a limited role for the criminal law, the issue, of how one deals with the children, for
example, and some of these things, are very complex issues. My answer to that would be that the judge has to take
them into account, and find as best she or he can, a sanction which would be proportionate and which would not have
collateral harm to the children. This is going to be enormously difficult task, but that is the task we give to judges.
We have said that the role of the criminal law is limited; it is inherently a punishment system. It sends a message
about what is and is not tolerable and points to the consequences involved with crossing the line of the intolerable.
Those messages should be clear and that is why I am concerned about sentencing.
Senator Andreychuk: My old law professor would disagree with you. He would say sentencing is not punishment.
Criminal law is really the rules that we as a society have deemed to be inappropriate for all of us, and anyone who
transgresses will suffer certain consequences and then the sentencing principles.
I remember the Sentencing Commission and one of the dilemmas was the disparity of sentencing that was
continually identified by the law professors, the media and the public and that has been accelerated. We hear one case,
but it is repeated every hour on the news, and in the minds of people it becomes important. Dispelling some of that
becomes part of the criminal justice system.
Do you think the disparity of sentencing is as much of a problem today as it was 20 years ago? Do you think judges
have received training that is more adequate and as a result, we pay more attention to sentencing? Is disparity a
problem? Even though we are in the same country a similar case tried in Saskatchewan and Ontario can have very
Mr. Doob: I think there is every reason to believe that there has been no change in the level of disparity of sentences.
One of the distorting impacts of the system, as we have it now, is that so many sentences are joint submissions. A joint
submission by a prosecutor and defence counsel is usually seen as a way of dealing with a case, which may or may not
be fair to anybody in the end. However, without a standard against which to evaluate those joint submissions, we do
not have a clear idea.
When there is a joint submission, most judges I have spoken to say that they are very uneasy about questioning it.
We have that problem. I think that every study that has ever been done that I know of in this country and elsewhere,
where the same case is handed out to judges and they all try to sentence them, they come out with very different
One of the difficulties that I have had when I participated in or presided over these kinds of exercises is that two
judges will give two very different sentences, and give equally strong arguments — based on different principles — as to
why their sentence is appropriate. The response from some judges to those things is, well, maybe both of them are
I can understand what that means because they are saying both of them are justifiable sentences. However, if they
are very different, if I were the offender, the victim or just simply a member of society, I would be uneasy with that
Senator Baker: Your last comment was that you could find the sentences very different. However, in a sentencing
hearing, which is a trial after a trial and you have submissions from both sides, there is a checklist that judges feel they
have to follow because of the possibility of appeal. The consideration would be the mitigating factors: whether the
person pled guilty; whether the person had expressed remorse; whether the person has a criminal record.
That structure was dealt with in the case that we referenced a few moments ago. The reason this case was referenced
was that it was an extraordinary case; it made new law until the court of appeal struck down the substance of it. We are
right back to square one. If it was tried today and there was not such an extensive examination made, the judgment
would not be the same.
Given that there are structures that judges have to follow in making a judgment on sentencing, because of the
possibility of appeal, when you say the sentence should be proportionate to the crime are you taking into consideration
what you do with all of the structure that is presently a responsibility of a judge at trial?
Mr. Doob: Senator Baker, this is why I think the Senate should investigate sentencing. Those are policy decisions.
If you are asking my answer to that, I am very nervous about giving a discount to people who plead guilty or appear
to be remorseful. First, it seems to me that we have an important principle that there is a responsibility on the state to
prove guilt. If you give a discount to somebody who pleads guilty, you are saying if you take your chance, you are
going to pay for it. I am not sure I am happy with that, but that is exactly the kind of decision it seems to me that we
should be making as policy.
On the role of criminal record and how large a role criminal record should play, the use of criminal record as a
sentence enhancement principle is certainly an important part of our criminal law. I would like to have a debate about
how important it should be and how much it moves somebody along the line of severity — or whether it should move
them at all. I think there are arguments about both. I have my opinions, but I think the important point is that we
should have consensus or at least agreement that this is the law. That is where I think the Senate might play a role.
Senator Jaffer: I know you have done research on public perceptions of sentencing. Can you elaborate and tell us
whether it supports the conclusion that judges have exercised their discretion responsibly when handling conditional
Mr. Doob: There is an interesting set of findings on public perceptions, of which I will just mention a few. The first
one is that for the last 40 years or so in Canada, if you ask a simple question — Do you think the sentences are harsh
enough? — the answer is people say no. Then you ask people much more specific questions about specific kinds of
cases, and their answers are very different.
For example, people endorse the idea that a substantial number of people should not go to prison. When people are
given detailed information about actual cases, they are much more content with the kinds of sentences that are handed
I think the problem with our perceptions is that we have this belief — or we, as Canadians, have a kind of
generalized belief. Seventy per cent of Canadians or so on any given poll will say sentences are not harsh enough.
However, when I was doing research on that, at one point we asked a follow-up question. We would say, can you tell
me about one? First, a substantial number of people could not remember. When they did remember, they would say a
homicide offence, a murder offence. You would say, there is a mandatory minimum on that of life in prison. Then they
would say, I heard of somebody that got off. It would be very confusing, but there is a strong belief. What we have to
understand is it is a belief based on what people genuinely truly believe, but it is not grounded in fact. It is not
grounded on information about sentencing.
Let us be real about this. We do not have good sentencing data in this country. I think the chair of the committee
asked me a question about what would happen to these cases. I wish I could have gone to a set of findings that would
say: These are the sorts of cases that have received conditional sentences; these are the kinds of cases that will no
longer, and these are the sentences. The problem is we do not have those details.
We might be able to talk about conditional sentences generally. We might be able to talk about the proportion that
are given in specific kinds of cases, but even then we do not have all the courts covered in Canada. When we think
about that in terms of public perceptions, the public has very strong views; but if I, as a criminologist, know that I
cannot get certain kinds of data, I doubt very much that most members of the public have better access to sentencing
data than I do.
Senator Andreychuk: I understood that Statistics Canada set up a separate statistic-gathering centre 20 years ago.
Mr. Doob: The Canadian Centre for Justice Statistics.
The Deputy Chairman: We will hear from them tomorrow morning so save some of these questions for them.
Senator Andreychuk: I will spare you then.
The Deputy Chairman: Professor, I want to thank you for being so patient with our questions, and for allowing Dr.
Smith to go first because of his time constraints. It was very gracious of you.
Senators, we will be meeting tomorrow at 10:45, in room 257 in the East Block, when we will have witnesses from
the Canadian Centre for Justice Statistics and also from the Canadian Police Association before us.
The committee adjourned.