Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs

Issue 26 - Evidence - May 2, 2007


OTTAWA, Wednesday, May 2, 2007

The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-9, to amend the Criminal Code (conditional sentence of imprisonment), met this day at 4:07 p.m. to give consideration to the bill.

Senator Lorna Milne (Deputy Chairman) in the chair.

[English]

The Deputy Chairman: I welcome you today to continue the committee's examination of Bill C-9, to amend the Criminal Code, conditional sentence of imprisonment. This bill seeks to amend section 742.1 of the Criminal Code and to provide that a person convicted of a serious personal injury offence, as defined in section 752 of the code; a terrorism offence; or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more, is not eligible for a conditional sentence.

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. In practice, however, conditional sentences are viewed by some in a negative light when used in cases of very serious crimes.

On our first panel, I am pleased to welcome from the Canadian Council of Criminal Defence Lawyers, André Rady; from the Association québécoise des avocats et avocates de la défense, Lucie Joncas and Gilles Trudeau; and from the Criminal Lawyers Association, Russell Silverstein.

André Rady, Board Member, Canadian Council of Criminal Defence Lawyers: I represent the Canadian Council of Criminal Defence Lawyers. We are a council of criminal lawyers from every province and territory and are representatives of the broader criminal lawyers associations in each province and territory. We are grateful to have been asked to speak here on this significant criminal law bill.

I have been practicing criminal law for 25 years in London, Ontario. I have appeared in all levels of court throughout the province of Ontario, in large centres and small, and my current practice places me in a courtroom almost every day.

My first remark on Bill C-9 is that it is unnecessary. The implementation of conditional sentences as sentence alternatives, which began in 1996 and which has been considered and refined by the Supreme Court of Canada in provincial courts, has been working viably in our system of justice.

My second remark is that Bill C-9, as it was originally introduced, was a blunt instrument and that, if passed in that form, would have effectively demolished the purpose of conditional sentences, which was to provide sentencing judges with a fair alternative to imposing conventional jail sentences in cases in which the facts and circumstances called for a less serious sanction.

The bill in its current language is what I see as a compromise between the status quo and the effective gutting of conditional sentences as I envisage would have occurred if the original Bill C-9 were implemented.

Bill C-9 goes right to the root of our justice system in terms of the independence of our judiciary. One of the criticisms that we have had of Bill C-9, is that it takes away judicial independence and tries to have the judge who is imposing sentence do so in a way that has been conducted on a broad scheme. Remember, and this seems to be forgotten in the rhetoric against conditional sentences, the fact that they are available does not mean that the judge is precluded or in fact will still not impose a sentence of conventional jail.

Offence-based preclusion for conditional sentences, and that is effectively what we are talking about here, ignores the fact that not all offences are of one kind or equally serious. It also ignores the circumstances of the facts of the case in the individual background of the offender, for example, whether he or she is Aboriginal or has a mental illness. Other circumstances include geographic concerns and individual background.

I have said this before; a robbery is not a robbery is not a robbery. ``Robbery'' can mean someone taking a gun and robbing a bank. It can also mean some young person pushing someone off a bicycle to steal that bicycle. That is the concern we have about basing this legislation on something that has to do with the maximum sentence of 10 years or more on indictable offences. Not every offence is the same. The Criminal Code is broadly worded. The answer is to keep things the way they are, which is to leave the discretion to judges.

There is a concern that judges are not tough enough, but we have appellate courts, both at the provincial level and at the Supreme Court of Canada, which have redefined conditional sentences and have enlisted guidelines for them which, if followed, will go with the purpose, I believe, that was intended.

My concern is that anecdotal evidence about conditional sentences, which people read about in newspapers and think are inappropriate, do not do justice to the situation. The judge makes a decision based on facts that the public does not have. Similarly, as parliamentarians and senators, one would hope that the decisions that are made here are not just judged by the public based on what is read in the newspapers but on the facts that are before Parliament or before the Senate in any individual case.

Lucie Joncas, President, Association québécoise des avocats et avocates de la défense: I have been a defence attorney for 15 years. I am the current President of the Defence Attorneys Association of Quebec. I am accompanied today by a member and also Mr. Gilles Trudeau, the President of the Montreal Defence Attorneys Association, which represents more than one-half of our membership. I will make some brief remarks and then ask Mr. Trudeau to address the committee.

First, thank you very much for having us today. We appreciate this chance to address the committee.

We share the concerns of the Canadian Council of Criminal Defence Lawyers that there seems to be many concerns about judicial independence when there are bills introduced either for mandatory minimum sentences or for limiting judicial discretion. I also share the thought that Bill C-9 was not warranted by the current crime rate or by any specific event. As we can see, there seems to be a compromise. Regarding the compromise regarding the criminal organization or gang-related crimes, I believe there are already many dispositions in the Criminal Code, namely, the increase of the sentence time, under section 743.6(1.1); the fact that the sentences are always consecutive, under section 467.14; and that it is already considered an aggravating factor to do a gang-related crime under section 718.2.

The gangster exception or the terrorism expertise is not our main point, because in 15 years I have never seen anyone receive a conditional sentence for an offence under terrorism. We are concerned about the third exception, which we believe is too broad. Section 752, under offences against the person is extremely broad. As Mr. Rady said, there are many different types of ways that we can commit an offence.

I would now like to leave a word for Mr. Trudeau.

[Translation]

Gilles Trudeau, Member, Association québécoise des avocats et avocates de la défense: Madam Deputy Chairman, the Association des avocats de la défense, which is based in Montreal, is a corporation with 333 members with expertise in criminal law. This association came into being at the end of the 1960s, when the Minister of Public Security tried to get involved in the work done by judges and interfere with their independence. Since that time, our association has defended individual freedoms and fundamental rights by getting involved in public debates on criminal justice, presenting its position at parliamentary committees on proposed legislative changes, by acting as interveners in the courts of appeal and by working on a daily basis with the judiciary, crown attorneys and community groups to advance criminal justice issues in Canada. I would remind you that one of our founders is former Chief Justice Lamer of the Supreme Court of Canada.

Bill C-9 is a new incursion into judicial discretion. This attack is unwarranted and is not based on any serious assessment or study showing a systemic problem with the conditional sentencing system in Canada or systematic inappropriate use of these conditional sentences by judges. Our association supports the supremacy of the Constitution, the rule of law and the separation of the powers of the executive, the legislative and the judicial branches of government. It supports a judicial system based on the presumption of innocence and requires the state to prove that the accused is guilty beyond a reasonable doubt at the end of a fair and just trial before an independent and impartial judge who is well-informed about the law and community reality.

The reform proposed by Bill C-9 is based on prejudice and myths — namely, the loss of public confidence in conditional sentences, the fact that tougher sentences will have a deterrent effect on the commission of crimes and recidivism, thereby ensuring that Canadians will have safer communities. There is also a myth that there has been a generalized increase in serious or violent crime in Canada.

All the material prepared by researchers before Bill C-9 was drafted showed that many authorities were of the view that there has been no increase in serious or violent crime in Canada, but that in some communities, there are more violent crimes being committed.

The new bill is trying to convince Canadians that by adopting the definition in section 752 of the Criminal Code on serious personal injury offences, all individuals receiving conditional sentences will be of absolutely no danger, because the court had to use that definition.

I would invite you to look at this definition carefully. This definition in section 752 of the Criminal Code is reserved for a tiny number of offenders — namely, dangerous offenders.

The average person who one day may commit a crime does not deserve to have his crime looked at as though he or she were a dangerous offender.

We all know that the government intends to change the presumptions with respect to dangerous offenders. This is a very serious toughening of the law, including the bill you have before you today. This is another very serious attack on judicial independence.

The Canadian judicial system is a balanced one that is envied by a number of countries. Many members of our association have acted as counsel before the International Court and have been involved in projects in Chile and in Haiti. A few years ago, we hosted a delegation of Japanese jurists. People study our system because it is based on individuals and on compassion. It takes into account the rehabilitation of people with a view to the long-term protection of society.

The only criterion set out in section 742.1 of the bill has to do with the objective nature of the crime. That does not make for a good assessment of the factual situation surrounding the crime, nor of the offender.

Even though property crimes have been removed, there are still many crimes that can be exempt from review by the judge under this provision. These are difficult situations for judges, but you should not think that judges make their rulings in the abstract.

When a judge wants to give a conditional sentence of imprisonment, most of the time he or she will ask for the opinion of criminologists and will ask to hear from witnesses. A great deal of evidence is provided to the court in order to convince the judge that the individual does not represent a danger. Only on this condition — if the individual does not represent a danger to society — will the judge consider a conditional sentence. We already have adequate protection in the current provisions of the Criminal Code.

By referring to the definition contained in section 752, I submit that we are increasing the social stigma placed on all individuals accused of crimes, and that we should be making some decisions, because society is not on trial, but rather an individual, who is one of us. This person cannot be removed from society indefinitely. He or she must be rehabilitated because one day he or she will be released.

In the interest of crime prevention and much safer communities, we think we should give the courts complete independence and if there are a few rare cases that do not satisfy the prosecution, all the appeal mechanisms can be used to change a sentence that may not be appropriate.

Those are my comments on this new bill. We are imploring the Senate to assume its obligation to protect democracy and defend Canadian identity. We think that our justice values are rooted in tradition and are important to Canadians. We also think that reforms of this type undermine Canadian identity.

[English]

Russell Silverstein, Director, Criminal Lawyers Association: I represent the Ontario Criminal Lawyers Association. We are a group of 1,000 criminal defence lawyers in Ontario.

I am here to make submissions with respect to Bill C-9. I will try not to repeat what my colleagues have said, although I want it clear that I support everything that they have said and I am in agreement with the points that they have made.

I have been a criminal lawyer for 23 years and, like my colleagues, I am in the courts every day and see the way our criminal law operates and how judges deal with criminal law.

Incarceration rates in Canada are high compared to other countries. Some people in our community might think that is a good way to prevent crime and to rehabilitate offenders; however, studies have shown that over the past 10 to 15 years, as incarceration rates have come down in Canada, so has the incidence of crime. The crime rate goes down as incarceration rates go down. In countries where incarceration rates are increasing, indeed so is the incidence of crime. It is no surprise to see that rates of recidivism are in fact higher amongst those who are incarcerated than it is amongst those who are given conditional sentences or who are otherwise allowed to serve their sentences in the community under community supervision.

The Supreme Court of Canada has recognized these trends. These trends are also the basis upon which Parliament, in 1996, brought about the conditional sentencing regime, with a view to decreasing the overall rate of incarceration, understanding fully well that over-incarceration is in fact a problem in our community.

With respect to judges' discretion, let me cite some instances which would be caught by the proposed Bill C-9 and where offenders guilty of the crimes that I am about to talk about would not be eligible for conditional sentences.

Sexual assault is a catch-all offence in our Criminal Code which captures the most heinous of crimes but also captures crimes which, in the grand scheme of things — again, comparatively speaking — are relatively minor. I speak in terms of cases where complaints are made a year or perhaps five or 10 years after the events are said to have occurred, where the Crown has no choice but to proceed by indictment.

Sexual assault charges which proceed by indictment are indeed punishable by up to 10 years, and thus no person convicted of the most minor sexual assault of a historic nature would be eligible for a conditional sentence. I am talking about an individual who has no criminal record and who has been out of trouble for the years since the alleged offence, where the alleged offence may be something in the order of the touching of someone's rear end or something that is indeed a sexual assault but is so old that it must be proceeded with by indictment. Those sorts of offenders are the sorts of offenders who benefit tremendously from conditional sentences and for whom incarceration would be perhaps the worst result for everyone concerned.

There are driving offences which would attract Bill C-9 as it is now drafted and would not be eligible for conditional sentences. I am referring to dangerous driving causing bodily harm. Even the slightest bodily harm on the most minor form of dangerous driving by an individual with a stellar driving record and no criminal record would be ineligible because it could be said that that sort of behaviour meets the criterion set out in section 752(a)(ii), conduct endangering or likely to endanger the life or safety of others.

Again, these are individuals for whom conditional sentences have proven to work. The conditional sentence regime has been in place now for a sufficiently long time that there are empirical ways to determine the success of the regime. The regime, in my respectful submission, is working very well.

Conditional sentences form only 5 per cent of the sentences that are meted out in Canada on an annual basis. It is not as if conditional sentences are taking over the world of punishment. They are confined to particular cases where those particular cases warrant that sort of treatment.

One need only look to the United States to see the experience that the judiciary is having with restricting the discretion of judges in the realm of sentencing. Strict sentencing guidelines, strict sentencing schedules, and minimum sentences are proving disastrous in the United States, in my submission. We can learn a lesson from the way sentencing has been transformed in the United States and steer clear of that direction.

The cost of incarcerating individuals exceeds the cost of monitoring them in the community by probably 20-fold. One ought not to lose sight of that as well.

Sentencing in this country is working well, and it is working even better since Parliament enacted the sweeping changes to the sentencing provisions of the Criminal Code. In my submission, it would be wrong to heed the occasional headline which makes people react in a knee-jerk fashion with a view to trying to stamp out crime. Crime is being well controlled in this country, perhaps in large part because of the new regime that Parliament enacted in 1996.

Senator Jaffer: I want to first thank all of you. You have made some important submissions which we certainly will consider.

One of the things that you have talked about is taking away the discretion of judges. It was interesting that you said conditional sentences are only 5 per cent of the cases.

I would like your input regarding what would happen to the sentencing circles if this discretion were taken away. How will this new act work with Aboriginal sentencing?

Mr. Rady: This is what I believe would happen: Because this is offence based, if the offence is a serious violent offence, as defined in section 752, and if it is proceeded with by indictment, so it has 10 years, a conditional sentence would not be available. It would still be available for the offences that do not fall within it. Again, that is the concern expressed by picking the 10-year offences contained in the definition within section 752. It does not look to an offence- based system where the judge has a residual discretion.

In those cases, it would be barred. In cases that did not fall within that section, obviously it is still available.

Senator Jaffer: You are all very knowledgeable about the issues that you face everyday.

One of my preoccupations with this bill is the impact it will have on the legal aid system. We have recently had funding for legal aid extended for five years, but the extension merely continues the inadequate level of funding.

My concern is that when conditional sentences are not available and there is stricter sentencing, perhaps people may not plead guilty. There may be more use of legal aid that has an impact on civil legal aid. What do you think the impact on legal aid would be?

[Translation]

Mr. Trudeau: I am one of the directors of the Criminal Affairs Office of the Legal Aid Service in Montreal. I have spent my entire career as a criminal defence lawyer.

There is no doubt that tougher sentences lead to tougher court challenges. My remarks do not mean that conditional sentences are meaningless. For many offenders, a conditional sentence is much more difficult than a sentence served within a detention facility, where people do not have to make any decisions, where the state makes all the decisions on a daily basis. But individuals who receive a conditional sentence in the community, like you and I, daily have to respect a code of values and individual choices with no one to watch what they are doing. Of course, there are checks done in person and by telephone. In Quebec, the system works well.

I think that if the current government continues to introduce tougher legislation, there will be pressure exerted on the system generally, but also on legal aid services, because we will necessarily have to spend more time on challenges.

The accused have every right to use the criminal procedure when it is to their benefit, because it is their hearing.

[English]

Mr. Silverstein: In my experience, it is common for accused persons to go to trial as opposed to pleading guilty when conditional sentences are not available to them. There will clearly be cases where probation is off the table and the prosecution will not countenance probation and a suspended sentence. We know the judge will not countenance that outcome, but a conditional sentence is oftentimes available. That will lead to a guilty plea for the person who is in fact guilty and wants to plead as such. When that outcome is not available, that person will have a trial.

When people have too many trials, the system gets backed up, some guilty people are indeed acquitted and the legal aid costs increase because legal aid is paying for all the time involved in the processing of these accused persons. A system that encourages the guilty to plead guilty and does not waste the court's time and the public's money is beneficial.

Losing conditional sentences for a large set of alleged offenders would be problematic in a fashion that is like the stone falling in the middle of the pond.

Mr. Rady: Let us face it, our system runs because most people charged with offences plead guilty. Currently, trials across the country are less than 10 per cent of all criminal charges. Unfortunately, I know people do not like the aspect of plea bargaining, but if we create a system where the punishment becomes so harsh that the accused has nothing to lose by going to trial, you will see more trials and more pressure on the legal aid system as a result of those people going to jail.

For example, in Ontario, one of the criteria for obtaining legal aid is that there must be a substantial likelihood of incarceration. If a conditional sentence in Ontario is on the table, much of the time they can be dealt with by the duty counsel or in some other fashion without putting that extra strain on the legal aid system.

If you fund something like this and understand what the bill is, we have to understand the economic repercussions to legal aid. Frankly, we do not know the extent of the pressure it will put on legal aid. I think we can all perhaps say from our experience that it will indeed put pressure on the legal aid system.

Senator Jaffer: There is this perception that all four of you are experienced with and Mr. Trudeau referred to a little bit, that conditional sentencing is often seen as getting away with being sent to jail. What is your experience of how your clients perceive conditional sentencing?

Mr. Rady: With respect to conditional sentencing, as you know, the criterion now is that the judge must determine if the sentence is less than two years. Experience would say that if someone was facing a conventional jail sentence of three months, the conditional sentence will probably be longer, six to nine months, because there is a perception out there that it is not as tough.

We must also consider that under a conditional sentence, there is no remission for the amount of time served. If someone goes to actual jail and receives a six-month sentence, they get out in four months. If someone receives a six- month conditional sentence, they serve the entire time and if they breach, then they go to jail.

To a lot of people, as Mr. Trudeau has said, conditional sentencing can be very onerous. The benefit is to those people who have jobs, who can continue to work and who do not go on the social assistance rolls. They can continue to go to school or what have you, yet they are still restricted. They do not get to go to the movies, hockey games, et cetera, and are effectively confined to their house for the term of the conditional sentence.

Despite that we may think it is probably nicer in most homes than in a jail cell, it can still be onerous. The Supreme Court has said conditional sentencing still acts as a deterrent. To many people, a conditional sentence can be quite tough.

Mr. Silverstein: Mr. Rady mentioned the collateral damage done by incarcerating individuals, by that I mean damage to their families, employers or fellow employees. If an individual can be kept in the work force and kept with his family while still learning his lesson and becoming rehabilitated, which the evidence demonstrates is working; to put a person behind bars for a minor offence is quite counterproductive.

[Translation]

Mr. Trudeau: One of the causes of crime is poverty. When people are brought before the courts and sentenced to a prison term, they are taken out of their community; they lose their property, their job and their future employability. They have a criminal record and will have tremendous difficulty remaining employable. We help create poverty when we incarcerate people.

You were speaking earlier about the situation of first nations people. A landmark decision by the Supreme Court of Canada was handed down at the same time as the Proulx decision. The Supreme Court pointed out that imprisoning people solves nothing, that it is not a useful thing to do. We should take into account the fact that isolating individuals from society is a dangerous thing to do.

What I mean is that when the courts have full discretion, they look at all the factors. And if they look at all the factors in reaching an opinion, there is more focus on future crime. If dangerousness is the only criterion that is considered, we do not have a clear, accurate assessment of criminal behaviour, and that is what the courts are supposed to be focusing on.

This bill will actually promote poverty. You were talking about Aboriginals earlier. We should not forget that most of our First Nations people living in the North, who still engage in subsistence hunting, do own weapons. Every time a violent crime involving a firearm is committed, these people are denied an assessment of a conditional sentence. Conditional sentences in Aboriginal communities are very important.

It was my privilege to represent some Aboriginal people who came from Nunavut to Montreal because they had been charged with drug trafficking. We had five days of representations on sentencing. The court did an outstanding job. I did not win a conditional sentence, but I was able to open people's eyes to the poverty facing these people in the North. I can tell — and I am not the only person who has said this — that all the American studies show that the first people to suffer from minimum sentences and from bills that provide for tougher sentences are women and children. Aboriginal women here in Canada are over-represented in our penitentiaries. I think we need you to shed light on this fact to bring the government back on track.

[English]

The Deputy Chairman: As are Aboriginals.

[Translation]

Senator Fraser: My first question is to Ms. Joncas and my second question is to all our witnesses. I will try to be as brief as possible.

If I understood you correctly, Ms. Joncas, when you were speaking about the three categories of crime, namely terrorism offences, criminal organization offences and serious personal injury offences, I think you said that it was the third category that concerned you. Is that correct? If so, why is that?

Ms. Joncas: Yes, it is the serious personal injury offences. I think that the impact of the other two exclusions — terrorism offences and criminal organization offences — is much more limited, because these are offences for which there are not usually conditional sentences. I agree with my colleagues who said that section 752 — serious personal injury offences — is much too broad and inclusive. That is the main focus of our concern.

A number of offences that fall within the definition provided by the courts argue in favour of conditional sentences. I am really referring to this exception. In addition, as I mentioned at the outset, the Association des avocats de la défense du Québec think that Bill C-9 is not warranted or contains very little that will affect the crime rate in Canada. If we had to choose a single focus for our presentation, that would be section 752.

[English]

Senator Fraser: We had an interesting session last week with statisticians from the Canadian Centre for Justice Statistics. We discussed this established fact that people who have had conditional sentences are statistically less likely to end up back in the system. It was very clear that nobody is quite sure which is cause and which is effect. There is no scientific evidence available to demonstrate whether it is because they have had conditional sentences that they are less likely to reoffend or whether it is the reverse, that the people who get conditional sentences are the people who have demonstrated that they are less likely to reoffend.

I am not asking you for scientific proof, but you are all experts. You all have considerable experience in this field. Could you give me very briefly your anecdotal sense of which it would be?

Mr. Silverstein: Does it matter? If the conditional sentence is in fact having a causal effect on recidivism and is causing a decrease of recidivism, that is a good thing. If it is the other way around, that those receiving conditional sentences are not ab initio a threat to recommit crimes, either way —

Senator Fraser: It is important because if one tries to judge the effect of abolishing conditional sentences, this may have some impact.

Mr. Silverstein: If you abolish conditional sentences, that will have a negative impact regardless of which way the cause is flowing. If there are those who will not reoffend and are given conditional sentences and do not reoffend because it is in their character, putting them in prison will increase the likelihood that they will in fact reoffend. We know that amongst those who are incarcerated, there is a high level of recidivism. You only need to go to the jails and see the life there to determine why the drug culture and fraternity of criminality in jails breeds criminality amongst those who have only put their toe in the water of criminality.

If it could be proved that conditional sentences are causing a decrease in recidivism, it goes without saying that abolishing them will have a deleterious effect on that.

[Translation]

Ms. Joncas: I also think that one of the cases has already been raised. In considering the likelihood of recidivism, the following should be taken into consideration: isolating people, incarcerating them, putting them into a more criminalized community, taking away their means of subsistence, such as access to housing or ties with their family are certainly aggravating factors. There is no doubt that the higher the rate of incarceration, the higher the crime rate will be.

[English]

Mr. Rady: I have done this for a long time. I have many clients who have been to jail a number of times and keep coming back. Not to be overly crass, a defence lawyer might refer to them as annuities. Those are people who go to conventional jail. That is not my experience with my clients who have had conditional sentences.

I do not believe that the person on the street, before committing a crime, actually goes through the exercise of thinking, I will go ahead and do this because all I will get is a conditional sentence. That is not the thought process that goes on out there.

In terms of trying to answer your question, it is probably a bit of both. Some people may not be the ones who will ever commit a crime again no matter what and for some, just because they got the break, it will not happen. I think you get the best of both worlds out of it.

[Translation]

Mr. Trudeau: When we talk about recidivism, are we talking about committing a new crime or about a situation where individuals have failed to comply with the conditions of their release? Our experience in Quebec shows that people who receive conditional sentences do not reoffend. Some of them may have failed to respect the conditions, precisely because it is very difficult. There is a criminologist from the Université de Montréal who is studying the phenomenon at the moment. From our day-to-day experience with these cases, the vast majority of people who receive conditional sentences do not reoffend, except that they may be caught in a situation in which they will have to account for their actions to the judge who gave them the conditional sentence. In that case, the breach of release condition is investigated and the individuals have to provide an explanation for their actions.

[English]

Senator Andreychuk: I cannot resist your comments about ``annuities.'' We never used that term.

In one part of the testimony we heard that conditional sentences are not easy. You have so many restrictions on you and it is so difficult to fulfill. At the end of your testimony, however, you say how much harm there is if we incarcerate them vis-à-vis the family, the linkages. When the accused is before the judge asking for a conditional discharge, is the accused thinking of his family, et cetera. When he is in conditional discharge, is he thinking that he could have been in jail? I am not sure. As you said, I do not think they think that far in advance, but we are hoping they will.

What about from the victim's point of view? When we put people out on conditional sentence, we are looking at different factors than when dealing with incarceration. Do you not agree?

Mr. Rady: I agree. On conditional sentences, the offender can actually get treatment that he or she cannot get under a probation order, which probably is the case as well in jail.

Part of the problem is the public perception about the justice system. People read the newspaper and they see something and they think, ``This person got off on that? I cannot believe it,'' and they write a letter to the editor. However, they were never in the courtroom, nor did they understand the circumstances surrounding the case. One of the feelings we have is that Canadians do not understand what goes on in the courtrooms. I think that goes with victims as well.

Any individual can be a victim of crime. If someone did harm to my family, I would want the worst punishment as possible. What I would want to do with them is probably not in the Criminal Code. However, that is not the system we live in. We live in a system of a rule of law. If the victims and their families can see that a conditional sentence is still a punishment and that it might prevent this person from being a recidivist and harming someone else in the future, they might consider it a valuable exercise. They have to get around that initial gut feeling for their own personal retribution. To a large extent, unfortunately, victims in terms of the way they have been treated through the justice system — and we now have a new ombudsman for that — need an understanding of what is actually going on and what may or may not go on in terms of the punishment.

We are talking about conditional sentences. For many of these offences, the judge still has the option and usually sends the person to jail when the circumstances permit. It is not as though we are taking something away from the judges. We would be taking something away if we took away conditional sentences for certain crimes.

Senator Andreychuk: When the bill was first proposed it was a government bill. By the time it reached us, it was a compromised bill, so it is not just the government's point of view. There are shades of difference and this is a dramatically different bill than the first bill.

It was pointed out to us that we are talking about some extreme cases that have been the subject of some public discussion. The bill as present will not affect that many cases but it will capture some specific cases that have not been captured. Therefore, it is a sentencing guideline as opposed to a judicial restriction, is it not? We put on judges all kinds of principles and sentencing guidelines in the past, so this would be one more.

Mr. Rady: It is beyond a guideline, it is a restriction because it is no longer available to them. In a number of cases, the Supreme Court — and I believe it is in the material provided to you from the library — talks about those cases. It talks about not just the Proulx case but also other cases including Wells and Knoblauch. Coffin is a property case in which it was ruled that a conditional sentence is not appropriate.

The guidelines are coming through the courts. If you look at many of those decisions, they are more in favour of not granting the conditional sentence from the appellate level and having the incarceration. To take it away is a restriction. It is not just a guideline; it goes beyond that.

Senator Andreychuk: I guess I did not make myself clear. We have put restrictions on judges previously in the Criminal Code. It is not the first time we have done it is what I am saying.

Mr. Rady: No, and it is obvious. If one is convicted of first-degree murder, there is only one thing that can happen: Life in prison without parole for 25 years, on eligibility. That is the most serious crime that we have. The problem is, when we do the trickle down effect, as Mr. Silverstein has said, sexual assaults have different degrees; it can be an old fashioned rape or a touching. A robbery can be something horrible or it can be a pushing and stealing something very quickly. Murder is better defined and more serious. It is obviously a line-drawing exercise.

Mr. Silverstein: You talked about some specific cases that have rubbed people the wrong way. In a country as large as ours, there will always be sentences that people find outrageous. That is what the Court of Appeal is for. I submit that it is a mistake to try to address specific cases with broad legislation that brings harm to the justice system as a whole. That is far too high a price to pay to deal with specific instances that rankle. There are more efficient ways to deal with those instances than legislation such as this, which, as Mr. Rady and all of us have said, is not just a guideline but is a significant restriction on the imposition of conditional sentences where they have proven to be appropriate and beneficial.

Senator Andreychuk: With respect, I agree with everything you say, except that a case could rankle. I think some could be characterized as an injustice in the Canadian context.

Mr. Silverstein: They definitely happen. I do not know how many people are sentenced every day in Canada, but I am sure it is in the thousands.

Senator Andreychuk: You say 5 per cent are subject to conditional sentences. One of the points the Canadian Police Association made is that much of our discretion is within this plea bargaining and that has had some skewing of our ability to analyze the broad spectrum of crimes committed and how the Criminal Code would act. Much of it is done in the plea bargaining confines that are not picked up by Statistics Canada, and so on.

Do you find that is a factor we should be concerned about — perhaps not particularly with this act but elsewhere? When I started, there was not any plea bargaining except formally in the courtroom. Now it is done routinely.

Mr. Rady: If we had no plea bargaining our system of justice would come to a halt quickly. That is another thing about conditional sentences: Many times, it is an agreement between the defence and the prosecutor. Prosecutors do not take their jobs lightly; they know what they can prove. The police may present the case to them, but the prosecutors know what they can prove with the laws of evidence in a courtroom, where the weaknesses of their case are and how the case may resolve. Sometimes, they make an agreement that way for that particular purpose. Sometimes the accused gives a little and sometimes the prosecutor gives a little and it results in a plea. The harsher things get, as discussed earlier, we will not have that. If we get rid of plea bargaining or something that is middle ground, we have a problem.

[Translation]

Mr. Trudeau: Without plea bargaining, there are no police forces in Canada that could live within their annual budget. In the case of trials, the rules of evidence laws mean that in order for a statement to be considered admissible, each police officer who came in contact with the accused must be heard. If it were not possible to have some discussions, which, in any case, remain confidential, and if the prosecution continues to have the privilege to refuse to allow us to speak to the court, I do not think any police force would be able to have police officers where they are needed — on the street.

Studies have shown that what seems to have an impact on crime is the possibility people will be caught, rather than the sentence they may receive, because often they do not think about that before they commit the crime.

In closing, with respect to domestic crimes, assaults that may be serious, I would say that Parliament has set some guidelines for judges to use in determining whether there are aggravating circumstances. Unfortunately, if we are talking about assault punishable with imprisonment of 10 years or more, the issue of conditional sentences cannot be considered. Rest assured that judges hand out very few in such cases. Most of the time the complaint is dropped by the victim, or else people ends up serving their sentence in prison.

Ms. Joncas: I would just like to make a very brief comment.

[English]

To answer your question, the judge is not bound by a joint submission. If the judge believes the joint submission is reasonable, he will not accept it.

Senator Andreychuk: After 12 years on the bench, I do not want to go there.

Senator Baker: We have some very experienced, confident and successful defence lawyers with us today. I want to mention some of our previous testimony and ask our panel to comment.

Mr. Silverstein mentioned the difference between proceeding indictably or summarily. He said, in this particular instance, it could have been proceeded with indictably because it was so old. Do you mean beyond the six months?

Mr. Silverstein: Yes, where the information is laid beyond six months, proceedings go indictably because that is the only way they can go.

Senator Baker: The intent in the beginning was that relatively minor offences would be prosecuted summarily, and the six months was put in there because people's memories fade. To do justice, you would have to bring the charge within a relatively short period of time.

Is this common, in your experience, that Crown prosecutors will proceed indictably even though the offence, on its face, should be proceeded with summarily?

Mr. Silverstein: The prosecution has no choice but to proceed indictably, if they wish to proceed, absent the consent of the accused. Sometimes, the Crown will want to proceed summarily in an offence that is out of time, and the accused certainly has the right to allow that to happen. However, there are advantages to being tried indictably; one has the option of a preliminary inquiry.

If I am defending someone and I have the ability to force the proceedings to proceed by indictment, I generally will prefer doing that because of the added protection for my client. However, the price I may pay for that is if he is convicted and has to be sentenced for a minor sexual assault that took place 10 to 15 years ago, he will not be eligible for a conditional sentence. I will think twice about it.

There is also the risk that some prosecutors may, in the improper exercise of their discretion, decide to proceed indictably on cases where they could proceed summarily simply to deprive the accused of the opportunity for a conditional sentence should he be convicted. That has to be guarded against as well.

Senator Baker: Mr. Silverstein, we heard testimony that there should be more restrictions placed on judges as far as consistency is concerned.

I ask you this question because I note that you have had some recent cases concerning conditional sentencing. In a recent ruling in Scott one of your clients received four years in jail, while the co-accused received a conditional sentence.

Do you agree with the witness we had before this committee who said that to make the sentencing decisions more consistent, we should perhaps be restricting judges more in the area of sentencing as it pertains to conditional sentences?

My second question is for Ms. Joncas and deals with the general deterrence of jail time. Recently a judge in this committee said of you: Ms. Joncas, if I have understood her properly, suggests that the clanging of the prison gates operates to reinforce the reality of conviction and somehow or other renders an exemplary sentence unnecessary. To her, I suppose, the prison gates have psychologically the same effect as did the lash or the stocks in an era long past. It is, of course, general deterrence, which is the overarching consideration in the case. You will know which case I am referring to in that matter. In other words, the judge said there is a general deterrence and that you are wrong in your arguments before him.

My last question is to Mr. Rady, who is an incredibly successful attorney on sentencing. I could not find a case that he lost in any of the reported cases; he seems to win them all. I am wondering if it is because, when you go to the conditional sentencing conditions, you see a very long list. I have a case here with three single-spaced pages of conditions, R. v. Haughton 2005.

Surely the judge did not come up with all of these conditions. Did you suggest this huge list of conditions attached to this case?

Mr. Rady: Haughton was a young man who set fire to the Salvation Army church in London, Ontario, causing $900,000 worth of damage. He was found in North Bay because his parents were concerned about him, thinking he was suicidal. North Bay police find him and want to take him to the mental hospital. He tells them, ``no you want to take me to jail because here is the lighter I used to start the fire at the church.'' He pleaded guilty and was granted a conditional sentence.

That conditional sentence has now been completed. During that course of time, this young man completed his degree in music at McMaster University. He is now gainfully employed as a teacher and making every effort to pay back the $900,000. Through some family savings, I believe he has paid back over $100,000 in that case.

If this fragile young man had gone to jail, he probably would never have recovered from that experience. It is a very unusual case for someone not to go to the penitentiary for arson, but under those circumstances with the strict house arrest and the guidelines for treatment, it is a perfect case where there was a successful conditional sentence for a very serious crime.

I can say it was successful because it is over and he has done what society wants of him, which is to rehabilitate himself and put the victims back into the position they once were before the fire started.

Senator Nolin: Would the sentence change under Bill C-9?

Mr. Rady: It depends on the arson charge that is laid. If there is arson that may endanger life and it carries 10 years or more, then it would.

He was charged with arson endangering life. The way they charged it at the time, I believe, had to do with the firefighters. He pleaded guilty to strictly arson.

Mr. Silverstein: If each arson case were off the table, then Mr. Rady's client would have been destroyed along with all the people surrounding him and for no good purpose.

To answer your question with respect to putting more restriction on judges, if I understand what you are asking, it is this: Would it not be right to constrain judges from being so lenient? If you do that, you create a wealth of cases of individuals just like Mr. Rady's client, who quite clearly deserved to be treated in a way that is particular to them. Anyone knowing all the facts would agree with that.

However, because of changes in the law, the judge has no discretion to treat that individual properly. If you look at certain states in the United States, where individuals have to be sentenced to minimum sentences regardless of who they are and what they did, you see the disasters that come from that type of sentencing.

I represented a young man in Florida; I am a member of the bar of New York State as well, so I was allowed to do a manslaughter case in Florida.

The Deputy Chairman: I will interrupt you there, because Florida is a little out of our jurisdiction, although it may be extremely interesting.

Mr. Silverstein: I have made my point.

The Deputy Chairman: Ms. Joncas has not answered and we still have Senator Joyal on the list of questioners.

Ms. Joncas: I will not take up too much time for that case since it is currently before the Court of Appeal of Quebec, so I believe I should abstain.

Senator Baker: I cannot believe that. You have 80 reported cases and you are telling me that.

Senator Joyal: I will direct my question to Mr. Trudeau, but of course the other witnesses can comment.

In your presentation, you mentioned that the bill is offence based. Section 752 of the Criminal Code refers to serious personal injury offences.

We do not have any proof from the witnesses that the conditional sentence system does not work. Rather, we have the proof that it seems to work. What approach would you suggest we take? Maybe it is not the question you were expecting.

[Translation]

Mr. Trudeau: I do not have the privilege of being a politician. I have tremendous respect for the institution you represent. I understand the problem you are facing.

I am not a specialist in parliamentary procedure. However, my heart and mind tell me that you should send this whole bill back to the House to try to get some proof that action is required. We do not think there is any need to amend a provision that took 30 years to come into being within the criminal justice system in Canada.

Thirty years ago, the Law Reform Commission of Canada began to talk about conditional sentences. We have just celebrated the 10-year mark. The Supreme Court of Canada has set out very significant guidelines.

Ms. Joncas has given you some elements of the answer also. I am not a fortune teller. In spite of all the talent we have here, it would be extremely difficult to convince the court that an individual guilty of terrorism does not represent a threat. Other than clause 742, there is clause 718, which refers to sentencing objectives and criteria. There are a whole series of important objectives, in particular, regarding specific and general disincentives. It would be erroneous to believe that the judge is failing to consider such principles. He must keep them in mind.

Second, with regard to organized crime, meaning very specific crimes, the target is again very specific. The majority of delinquents do not go before the courts. There are very specific provisions in the Criminal Code for such individuals. Often, they must deal with a crown prosecutor, who will ask for a longer period of ineligibility. In light of specific persuasive evidence, crown prosecutors may ensure that these individuals spend half or longer of their sentence in prison.

Your problem would no doubt be resolved if you asked for the bill to be revised in order to take out this referral to the definition, included in the chapter on dangerous and long-term offenders.

[English]

Mr. Silverstein: I agree with my colleague. The approach that should be taken by the Senate is to suggest doing away with the third branch of Bill C-9. I see no harm to the wonderful system of sentencing that we have in this country as set out in the Criminal Code and the Supreme Court of Canada's guidance based on the Criminal Code as redrafted in 1996. It is working like a charm, in my respectful submission. If something has to be done, then let those first two headings sit in the bill, but do away with the third, because that is the one that will really cause problems.

Mr. Rady: I agree with what my colleagues have said. Obviously, there will always be cases in which people think the sentence was not stiff enough. It might be because this person got six months instead of a year. Should we try to make guidelines then for minimum sentences of imprisonment for those kinds of cases? The question is: Is it sufficient across the board to show that the conditional sentence regime that we have had as an alternative for judges since 1996 has failed so miserably — other than a few cases, like all cases out there that we may criticize — to warrant a complete revamping of it?

There is the phrase that you have to be tough on crime. Is this really getting tough on crime? It is taking away judicial discretion. It is not that we are taking away from the judges the right they still have to sentence someone to conventional incarceration, a right that they have had all along. It is just something between a suspended sentence and incarceration. In serious cases, it will not happen. It will not happen often in any of the serious cases, so what are we really talking about? Why do we really need this bill? To a large extent, I would say it is to try to make a statement that we are somehow getting tough and it might give false security to those who think that now crime will diminish because we have cut down on the availability of conditional sentences in certain cases.

Ms. Joncas: I can sum it up in one phrase: If it ain't broke, don't fix it.

The Deputy Chairman: Thank you all very much. This has been a most interesting session. You have given us a refreshing insight into what actually goes on in a courtroom.

The committee will now suspend for five minutes until our next witnesses can arrange themselves at the end of the table.

To continue our discussion on Bill C-9, I would like to welcome our second group of witnesses. We have from the Canadian Association of Chiefs of Police, Francis Brabant, Legal Adviser, Office of the Deputy Director-General, Criminal Investigations. Accompanying Mr. Brabant is Pierre-Paul Pichette, Assistant Director and Chief of Service for the Montreal Police Service. I also want to welcome, from Association des services de réhabilitation du Québec, the managing director, Mr. Patrick Altimas.

[Translation]

Jean-François Cusson, Coordinator, Programs and Communications, Association des services de réhabilitation du Québec: I am the program and communications coordinator.

Pierre-Paul Pichette, Assistant Director, Chief, Corporate Operations, Canadian Association of Chiefs of Police: Mr. Chairman, my name is Pierre-Paul Pichette, Assistant Director, Chief, Corporate Operations Service, Montreal Police Department. With me today is Mr. Francis Brabant, Legal Advisor, Office of the Deputy Director General, Criminal Investigations, Sûreté du Québec. We are appearing before you today as representatives of the Canadian Association of Chiefs of Police; I myself am co-chair of the CACP's legislative amendments committee. I also want to take this opportunity to convey greetings from our president, Mr. Jack Ewatsky, the Chief of Police for the city of Winnipeg.

The Canadian Association of Chiefs of Police represents the leadership of Canada's law enforcement agencies. Ninety per cent of its members are directors, assistant directors or other senior officers with a variety of municipal, provincial or federal police forces in Canada. Our association's mission is to promote effective enforcement of Canadian and provincial laws and regulations for the purpose of protecting the safety of all Canadians. We are regularly called upon to take a position on legislative reforms. We are always enthusiastic participants along with government officials, in consultations concerning criminal law reform, just as we are doing today before this committee. I will now turn the floor over to Mr. Brabant, to present our views on Bill C-9. Following his comments, I will have some closing remarks.

Francis Brabant, Legal Advisor, Office of the Deputy Director General, Criminal Investigations, Canadian Association of Chiefs of Police: We would like to thank the committee for inviting the Canadian Association of Chiefs of Police to speak to you today on Bill C-9.

Many of you will know that the CACP appears before your committee on a wide range of criminal bills. Generally speaking, we tend to appear regarding bills that deal with substantive offences and those affecting police powers.

However, while Bill C-9 deals solely with the matter of sentencing, we do have some comments that we hope will be of assistance to you in your study.

First, we would like to express the CACP's support for Bill C-9 and the changes it proposes to conditional sentence orders. We believe that conditional sentences are an inappropriate response to violent or other serious crimes.

We understand from the work of the Standing Committee on Justice and Human Rights, which amended the initial draft of the bill, that conditional sentences should not include property-related offences, specifically.

We were also interested to note that the committee did agree that it was appropriate for Parliament to provide guidance to the judiciary under certain circumstances and to send messages.

The scope of the bill was therefore restricted to serious personal injury offences, terrorism offences and criminal organization offences, and the condition of the 10-year maximum term of imprisonment was maintained.

The 10-year limit in the bill effectively removes from the exclusion the offence of participating in the activities of a criminal organization, meaning section 467.11, which provides a maximum five-year penalty, while the committee proceedings suggested that members did not want conditional sentencing to be an option for those with ties to a criminal organization.

We respectfully submit that there is no reason to differentiate between the offence of participating in the activities of the criminal organization from the other criminal organization offences — commission of an offence for a criminal organization and instructing commission of an offence for a criminal organization.

Despite the fact that the penalty provided for this offence is shorter than for the others, it should be noted that, to date, Parliament has not considered the distinction appropriate in setting out the exceptions to the general scheme for consecutive sentences, for example, and conditional sentencing.

The same holds true for the exclusions for wiretapping, obtaining income tax information, methods of providing testimony and reverse onus in bail hearings.

The CACP is of the view that the bill creates an anomaly in this respect. We hardly need remind your committee of the serious threat that organized crime poses to the safety and security of Canadians.

In our opinion, imposing conditional sentences on those found guilty of taking part in the activities of a criminal organization would be seen by the Canadian public to be contrary to the sound administration of justice and inconsistent with the treatment of this offence and those who commit it elsewhere in the Criminal Code.

This is not to say, however, that we object to the manner in which the bill is drafted. We would like to caution against an amendment that adds another list of offences to those already found in the Criminal Code. As the CACP has observed before, the criminal law has reached unprecedented levels of complexity and is virtually unfathomable in places. We would therefore like to suggest an amendment that specifically ensures that all criminal organization offences as defined in section 2 of the Criminal Code are ineligible for conditional sentences.

Thank you for the opportunity to comment on the bill. Mr. Pichette will now make some concluding remarks.

Mr. Pichette: I would like to remind committee members that all police forces in Canada are anxious to properly enforce the laws and regulations currently in effect. Clear, unambiguous legislation is a major facilitator for our officers on the ground, and such legislation fosters better public understanding and support.

I would also like to thank you for giving us this opportunity to provide our comments, and we will be pleased to answer any questions arising from our presentation.

Patrick Altimas, Managing Director, Association des services de réhabilitation du Québec: Thank you for inviting the Association des services de réhabilitation sociale du Québec, a community service that has been in existence for over 40 years and has 55 members across Quebec. By members, I mean community organizations that work with adult offenders. So there are over 25 of our members that share responsibility with the Quebec probation service for working with people serving conditional sentences; this has been the case for a number of years and even more so this year, with the implementation of the Correctional Systems Act.

We represent people active in the criminal justice field and who are concerned about preventing crime. We are pleased to give you the fruit of our reflection. I will not read the whole brief that was submitted to the Standing Committee on Justice and Human Rights and distributed to you. We did not rewrite it because we always agree with ourselves.

I am aware that the bill has been significantly amended since then, and we are pleased with the results in part. Our view then and still now has been that a conditional sentence of imprisonment is a severe, safe, coherent, rigorous and preventive measure. From our experience and what we can see, it appears to work well. There is absolutely no evidence at this point that conditional sentences do not work. Before appearing before the House of Commons committee, we met with people working in the field to find out about their experience with conditional sentences. We saw that they were finding that the clients referred to them met the criteria under the Criminal Code or they would not have had a conditional sentence. Supervision of these offenders was carried out safely and seems to work. There was not an alarming rate of recidivism. So there is no indication that there is a need for any change.

The Criminal Code is quite clear in its various provisions. Judges need to take into consideration the seriousness of the offence. Public opinion, when we get a bit beyond perceptions, agrees with the use of conditional sentences, although people are legitimately concerned about the danger posed by certain extremely violent crimes. Reducing the use of conditional sentences will not make our communities safer at this time. We think that before changing something that seems to be working, there should be more research and more information prior to changing the Criminal Code. We do not have the same perspective as a lawyer would. I am not a lawyer. I had forgotten to mention that, and I am not a police officer either. We work on the front lines alongside those who work with clients who have been given a suspended sentence. I will limit my comments to those few opinions and will be pleased to answer any questions you have.

[English]

The Deputy Chairman: I thank you very much, gentlemen. I have no one on the list, so I will start with questions.

The last group of witnesses, and I am sure you heard them, said that to their knowledge, there had been no conditional sentences handed out to anyone found guilty of either terrorism or for being a member of a criminal organization. Is that your experience also? I am mainly asking the chiefs of police this question.

[Translation]

Mr. Pichette: Going from memory, since I do not have my reference information here, my colleague and I feel that the statement made earlier was true.

Senator Joyal: My question is for Mr. Pichette. You are asking us to amend the bill, if I understand correctly what I see on page 5. It seems to me that there is an important aspect that we need to focus on and bring into the debate. I am looking at the second paragraph; I have the English version.

[English]

We would like to caution against an amendment that adds another list of offences to those already found in the Criminal Code. As the CACP has observed before, the criminal law has reached unprecedented levels of complexity and is virtually unfathomable in places. We would therefore like to suggest an amendment that specifically ensures that all ``criminal organization offences,'' as defined in section 2 of the Criminal Code, be ineligible for conditional sentences.

[Translation]

Do you feel that there could be interpretation errors by crown prosecutors who would be interpreting Bill C-9 or the amended Bill C-9 and its effect on the nature of offences committed by criminal organizations under the Criminal Code?

Mr. Pichette: As you can appreciate, I am not in a position to presume how crown prosecutors might interpret the legislation. However, when we have police officers who may do street patrols and investigators called on to deal with crimes and determine the appropriate charges to be laid, it seems to us that the Criminal Code is already very complex.

Given my interpretation and the complexity of the Criminal Code, we would urge you, if our proposal is accepted, that it be written as simply possible so that those using it can understand its application and consequences.

Senator Joyal: So you are basing this on your experience; I imagine that you are not coming here today to make this representation to us, since I understand that the recommendation that you are making today was not submitted to the House of Commons.

Mr. Pichette: No, not that one.

Senator Joyal: It was the House of Commons that amended the government's original bill to add the type of offence in clause 742.1.

Mr. Pichette: Just give me two seconds.

Mr. Brabant: If I may, the association did appear before the House committee and pointed out at that time that the only criterion was 10 years. That excluded the offence under 467.11, which is participation in the activities of a criminal organization, which is punishable by five years in prison. We made those representations, and the bill was subsequently amended. The question of procedural rules may have come into play. That seems to be the situation.

I did not find any discussion about that, and it may be because I did not do enough research, but regarding the organized crime aspect, it is quite possible that a deliberate decision was made to maintain section 467.11 in the current system of conditional sentences. No one has raised that. It could be that it passed under the radar. The idea was to cover all criminal organization offences, but those punishable by a maximum of five years were overlooked. In any case, the bill that would have been passed by Parliament, either its original version or the amended one, is flawed in the same way, with all due respect, because that offence is not excluded.

Senator Joyal: Fine. So we can assume that when the amendment was made in the House of Commons, no one brought up the fact that the proposed wording excluded one type of offence related to organized crime, which you are suggesting should be included in the bill for practical reasons.

Mr. Brabant: Yes. From the point of view of legislative drafting, we feel strongly that the code needs to be coherent. And as I mentioned in my presentation, the three provisions, 467.11, 467.12 and 467.13 are treated the same way everywhere else, including with respect to sentencing. The sentencing provisions are the same, but there are all the police wiretap powers. Reverse onus for bail is closely related to sentencing, because other circumstances are taken into account. It would send a rather strange message if a distinction was made for that particular offence at that point.

Senator Joyal: At the outset, did you want to exclude criminal organization offenders from access to conditional sentences?

Mr. Pichette: I do not think so.

Mr. Brabant: Basically, we supported the bill because of the ten-year standard. However, concessions were made during the House of Commons committee hearings. We agreed that the standard could be too lenient in certain cases. We were mainly concerned with the most serious crimes.

Senator Joyal: Let me continue with Mr. Cusson and Mr. Altimas. I understand that your work with the Association des services de réhabilitation gives you first-hand experience with convicted offenders who are serving conditional sentences.

Mr. Altimas: That is correct.

Senator Joyal: Last week, we received representatives from the Canadian Centre for Justice Statistics who gave us an approximate number of offenders serving conditional sentences who might not meet all the conditions. We received some tables, and this had to do with table 17 of their presentation. Let me read out the relevant paragraph:

[English]

Here we are looking at re-involvement after a sentence has been served. As we can see, for these jurisdictions, the proportion of probationers who returned to corrections within 24 months was a little lower than for those serving a conditional sentence, but the proportions are quite similar.

[Translation]

In other words, in your opinion, what factors would cause someone on a conditional sentence to commit another crime? Would it be because of inadequate services? Could the individual's potential for rehabilitation have been wrongly assessed? What are the barriers to rehabilitation? We heard the previous witnesses. Perhaps you have heard that poverty is a factor that can lead to criminal behaviour. You said that you had daily first-hand experience of the living conditions of these persons. In your opinion, what are the factors that contribute to recidivism?

Mr. Altimas: My current experience is mainly with the association, and I have had more experience on the ground with parolees than with people on suspended sentences. However, I am in touch with the members. As you said, we have experience, but we do not have a magic solution. I was told that a suspended sentence is probably a more severe measure than, for instance, a year in prison. Let me explain. An individual committed to imprisonment for a year who does not get paroled after having served two-thirds of his sentence is released without any conditions or supervision. If he has received a one year or 18-month conditional sentence of imprisonment, he is supervised during the entire period and he could be incarcerated again during this period for breaching the conditions, even if he has not committed an offence.

There is not much recidivism during periods of supervision. However, nothing guarantees that supervision solves all the problems and that the individual will not re-offend after the end of that period. We can only hope that repeat offences would be less serious than they would have been if we had not intervened, or that by keeping in touch with the offender, we can continue with our intervention in a different context.

There is no miracle solution. If I had an exact answer to your question, I would be a rich man. Human nature is sometimes unpredictable. However, it is possible to find means of prevention and intervention that do not unduly jeopardize public security.

I wish I could give you a more precise answer, but I do not think that I can.

Senator Joyal: Let us take your example of someone sentenced to a year in prison as compared to a conditional sentence with conditions that are more onerous than just a few months of community service without rehabilitation. When the media report that someone has been convicted and has received a conditional sentence, the public feels that the person gets released and can go home and carry on with his their usual activities. Very frequently, victims, their family and their friends think that justice has not been done.

Mr. Altimas: That is correct.

Senator Joyal: Since the system has existed for 10 years, why was this impression allowed to continue? Why can we not lessen it, or create a fair perception of the nature of conditional sentences?

Mr. Altimas: You are right in saying that the public does not fully understand what a conditional sentence involves. Studies have shown that well-informed people more often than not agree with conditional sentencing, because they understand what is involved.

Now why does the general public still not understand these measures, even after 10 years? That is a good question.

When we are called upon by the media, we always try to explain the situation. Nonetheless, we always have to start over from square one. As you know, serious crimes have an emotional impact. These emotions have an enormous influence on the criminal justice system.

We must endeavour to better inform the public and to make sure that people understand the situation.

A conditional sentence can sometimes be more onerous for the offender. Families of offenders have attested to this. Let us take, for instance, the spouse of someone serving a conditional sentence. She might get fed up with receiving phone calls at midnight to check whether her husband is at home. If he were in prison, she would not have to deal with such conditions.

Your question is excellent. In my opinion, we must give the public better information regarding these measures.

Senator Joyal: You said that you have mainly worked with parolees. Is it more difficult to rehabilitate someone who has been incarcerated than someone who has received a conditional sentence?

Mr. Altimas: Once again, I am afraid that there is no perfectly clear answer to your question. It all depends on the individual, on how many times they have been jailed, and on whether the individual is a chronic offender. Many factors must be considered.

Persons released from prison need to readapt and become accustomed once again to life on the outside. This factor does not come into play if the person has been released on a conditional discharge. Beyond doubt, incarceration causes a certain amount of damage. However, there is no general rule. I have seen offenders who behaved very well in prison, but who deserved to stay in prison nonetheless. On the other hand, I have seen individuals who did not behave so well, who were traumatized by their prison experience and who had problems that needed solving.

It is not easy to answer your question. An individual may not need to be incarcerated to protect the public because the offence is not sufficiently serious. If someone has enough resolve not to re-offend, we can avoid incarceration and take measures that are both restrictive and educational. This is also a less costly option.

Senator Joyal: That is the nature of our current dilemma. There are no perfectly clear solutions. Therefore, we must determine whether the system, as we know it, protects society better by systematically incarcerating people, or if we should rather assess these people's potential for rehabilitation by using professional services like yours. If individuals can be rehabilitated, if they can resume a normal life and become model citizens, it is a net gain for society.

According to the statistics, incarcerating people systematically does not guarantee more security for society. These people do not simply disappear. Sooner or later, they come back into the social fabric and they can be more dangerous than they were before.

Where must we draw the line? This is what we want to understand. Although we are not experts in this field, we are trying to determine what is the fair share of police responsibility in protecting citizens.

Where should we draw the line, given that the system seems to be working? We have not yet heard any witnesses say that the conditional sentencing system was not working.

You also mentioned the fact that a certain segment of public opinion believes that justice is not being done because there does not seem to be anything exemplary about conditional sentences. They do not seem to have the deterrent effect that sentences should have.

Thus, we are trying to find a way in which the system can function so as to ensure the security that it should ensure. In this context, we must nonetheless believe that detainees can eventually be rehabilitated because they will not spend the rest of their lives behind bars, unless they have committed the most serious of crimes.

I read the last recommendation in your brief. Here is what you recommend on page 8 of the English version:

In order to determine the impact and effectiveness of conditional sentences, more accurately thorough research needs to be done. The issues to be investigated include not only the recidivism rate but also the social and economic impacts.

Therefore, you conclude that we do not have sufficient data at this time to change the system in a substantial way as proposed by Bill C-9.

Mr. Altimas: We have drawn that conclusion.

Mr. Cusson: Obviously, we drew that conclusion. We are very worried about depriving a judge of an instrument because in our view, in such cases, the judge is often the one who is best qualified for evaluating the situation.

The Canadian justice system is very much based on individualization, which is a very important principle, and this bill has set it aside. Moreover, we know that a system of minimum sentencing has been proposed for some of the most serious offences. This does not mean that we are comfortable with minimum sentences; however, a consistent justice system cannot do without them.

Regarding community-based sentences served under community-based supervision, let us not forget that community organizations are not only involved in supervision. They can offer other very useful services such as housing and other specific programs to meet specific needs. In some cases, a person serving a conditional sentence can have a much broader choice of available services.

Earlier, someone expressed concern over breaching conditions. I should point out that over the years requirements have become much more stringent with respect to offenders. I am not saying that that is a good or a bad thing, but there are more and more conditions attached to rulings. One should not conclude that a breach of conditions is a failure. On the contrary, when a breach of conditions has been observed, then appropriate measures are taken.

Conditions are tools that are being used precisely to avoid repeat behaviour. One should be cautious in interpreting this data.

[English]

Senator Joyal: In your experience, do you know of a case where a person received a conditional sentence and should have received a prison sentence?

[Translation]

Mr. Cusson: When we met with these people, they were not in a position to give us that kind of example. I am not saying that there are not any but we were not given these types of examples.

Mr. Altimas: The people we spoke to have not observed these kinds of blatant cases. I put the question directly to our people just as you expressed it and they were not able to come up with any cases.

[English]

Senator Baker: I have one question concerning the three sections of the Criminal Code that come under the definition ``criminal organization offences.'' Each is ineligible for conditional sentences in a way. Senator Joyal pointed out the reason for that, which, as Mr. Brabant said, was:

We would like to caution against an amendment that adds another list of offences to those already found in the Criminal Code. As the CACP has observed before, the criminal law has reached unprecedented levels of complexity and is virtually unfathomable in places.

Mr. Brabant, did you once represent the Quebec criminal defence lawyers association?

Mr. Brabant: I did.

Senator Baker: Before the Supreme Court of Canada?

Mr. Brabant: I did.

Senator Baker: You have appeared before the Supreme Court of Canada many times, have you not?

Mr. Brabant: I have.

Senator Baker: You are responsible for determinations against facially defective search warrants and beating down doors in the middle of the night.

Mr. Brabant: That was my first case.

Senator Baker: Yes and later, on the Zito case, you created new law on opening sealed packets.

Mr. Brabant: Yes.

Senator Baker: Then these laws came into the Criminal Code. Now, by law, the sealed packet has to be opened. There is no such thing anymore as not opening a sealed packet, and you are perhaps responsible for that change in the law. You are also responsible for the changes in the Criminal Code as it relates to search warrants.

Now you are saying, after I have created all those complexities in the Criminal Code, now we should stop. Is that what you are saying?

Mr. Brabant: I would say I have been hired precisely because of that reason.

Senator Baker: I was not sure if you were the Francis Brabant.

Mr. Brabant: I am.

Senator Baker: Well, well.

Mr. Brabant: You will notice that in my other life, the last case I pleaded with the defence bar was more than 10 years ago.

Senator Baker: It was the Morales case, was it not? Were you at Morales on behalf of the defence lawyers association?

Mr. Brabant: Yes, and the case of the United States of America v. Cotroni, which is a well-known extradition case.

Senator Baker: That was an incredible case.

Mr. Brabant: It was; I lost it.

Senator Baker: I know; we all know about that case. Getting back to the question, you are saying let us not complicate the Criminal Code any more; it is too complicated as it is. You, of all people, say ``it is virtually unfathomable in places.''

However, surely your suggestion of taking three sections of the code and in one blanket, say these should not be eligible for conditional sentences, 467.11 to 467.13.

Let me read for you something by Edward Greenspan, the annotation. In reference to 467.12, he says, that this section creates the least serious of the criminal organization offences.

Is it not your argument that you are blanketing the entire scene again and you are not allowing the judge to have discretion? You are taking the least serious of these offences and lumping it in with the more serious offences in this presentation you have made to us today.

Mr. Brabant: If I may, this is what the Criminal Code does everywhere in the code. It does so with consecutive sentences; it does that also with parole. They are all treated together. In my opinion, it has just been forgotten. Our powers for wiretapping, for instance, 467.11 go with all the others.

All of those powers, even the reversal of burden for bail; all three are the same. Here you come with this conditional sentence order and you say that it is different now.

A conditional sentence order is not a constitutional right. I think we agree on that. I would say it is a measure of legislative policy. Section 742.1 was not enacted because of a decision from a court saying that the sentence system is unfair because it does not allow people to spend their jail time in their homes. It does not say that. It is legislative policy.

I am hearing that you are faced with a stark choice of all or nothing. May I suggest that the judge can still impose probation in two ways? I will turn to section 731. It is not necessarily jail.

Senator Baker: A conditional or unconditional discharge.

Mr. Brabant: Section 731 is in regard to making a probation order. You can ``. . . suspend the passing of sentence and direct that the offender be released under conditions; . . .'' or there is another way. ``In addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in the probation order.''

You still have the probation orders there when you decide, as the Supreme Court said, that social reintegration is the main concern. Our concern is that when the judge decides that a CSO is the right measure, he decides that imprisonment less than two years would be the right sentence. What we are saying, especially with criminal organization offences, is that if imprisonment is the right sentence when it comes to criminal organization offences, this person should spend his or her time in jail.

I was not prepared to speak to you in English this afternoon, but I am venturing.

[Translation]

Senator Nolin: Mr. Brabant, you can speak in French.

[English]

The Deputy Chairman: If you prefer, you may speak in French.

Mr. Brabant: I did plead one of my cases in English and it was not prudent.

[Translation]

Senator Nolin: That is why we are giving you the opportunity to speak in French.

[English]

Mr. Brabant: One of the French-speaking justices took me to my word and started to put questions to me in English. I will not tell you who he is. So I said: Nevermore, my young friend.

[Translation]

Then I will continue in French. Organized crime is the very antithesis of individualism. When you choose to participate in organized crime, you are giving up some of your individuality for the purposes of the organization. You are doing things for the organization. Now, as concerns sentencing, the plea would be: treat me as an individual when, in reality, I made the choice to adopt the values of and participate in criminal organization activities.

I think that applying individual characteristics to organized crime is contradictory. We think that when a judge decides that a prison term is indicated, then that prison term should be served within prison walls.

[English]

I heard this afternoon that conditional sentencing orders are harsher than prison. The Supreme Court has said that in principle they are harsher than probation and less severe than incarceration. Let us stick with what the Supreme Court says.

We are saying that when the judge decides that the offence is so serious, it is not very palatable to the Canadian public, if the judge decides that prison is the right measure, that the term should be spent at home. It is perhaps an instinct.

Senator Baker: What is your point on wiretaps? I could not understand what you were saying.

Mr. Brabant: There are a few exceptions for the general regime of wiretap. For instance, for organized crime offences, you do not have to show that a wiretap is necessary.

Senator Baker: Suspicion.

Mr. Brabant: It is more than that. The ordinary criterion is necessity. Also, the authorizations do not have to be limited to 60 days. They can go up to a year. Also, disclosure of the fact that there was some wiretap can be postponed to a later time.

For all those infractions, the Criminal Code places 467.11 on the same footing as the others. We thought it was an anomaly.

I do not know if you want to hear me on organized crime, but I think it is undemocratic, unsocial and perverse. At some time we got lost in the discussion. I would also say that the message is important. Maybe you are asking yourself whether the system is really working.

Deterrence is another aspect. If a criminal is under the impression that he could have a conditional sentence order for such serious crimes, how are you to measure the real impact of the situation? Deterrence is everywhere in the Criminal Code, by the way.

The Deputy Chairman: Mr. Brabant, you yourself have said that conditional sentences, to your knowledge, have never been applied to any —

Mr. Brabant: You are right. I know that, except that the possibility is there.

Senator Baker: It could be there.

Mr. Brabant: It is there.

Senator Baker: Mr. Brabant has contributed a great deal to making the law in Canada.

The Deputy Chairman: Yes, in making it more complex.

Mr. Brabant: I do not want to sound like a grandfather.

Senator Baker: Many of these cases were back in the 1980s.

Mr. Brabant: When I started, the Criminal Code was half the thickness of the current Criminal Code. Some of you may remember the older Martin's Criminal Code, which was one inch thick. What we find nowadays are long lists of offences for DNA, wiretapping, and what have you. It has become very complicated. That is what we mean to say, that if you envisage another long list of offences that would be different from all others we have already in the Criminal Code, we would prefer that a general definition be given.

The Deputy Chairman: I thank you for that, but this bill does not contemplate another long list of offences. It is very short and concise bill.

We heard from the last group that less plea bargaining and fewer guilty pleas, which would be the result of this bill, would result in much higher costs for police forces, as well as a clogged court system. Do you agree with their comments?

Mr. Brabant: We do not have statistics to tell us that the conditional sentencing orders are the result of guilty pleas. In fact, as I said, a period of probation might be a proper order. For instance if you give a year of incarceration along with probation, that could also be the subject of negotiations, I would say. It is just a possibility. They are saying that maybe conditional sentencing orders would reduce the number of plea bargains; I would say that is a theoretical possibility.

The Deputy Chairman: Mr. Altimas, one man in the last group said that this bill is unnecessary; one of the witnesses said it is not warranted; and another said that this is a serious intrusion into the balanced Canadian judicial system. You have said yourself that it is an attempt to deal with a problem that does not exist.

Mr. Altimas: That is still our contention, namely that there was no major urgent problem that needed to be addressed, that there is no research to show such a problem, and that the measures in the Criminal Code seem to be working.

[Translation]

Senator Joyal: Mr. Brabant, in order to extend the scope of Bill C-9, you are suggesting that it refer to section 2 and the definition of criminal organization offences. If I read the definition of a criminal organization offence — and I am looking at Senator Nolin because when we adopted this definition in 2001, I believe he was present when that definition was discussed.

I will read section 2 of the Criminal Code:

[English]

``criminal organization offence'' means

(a) an offence under section 467.11, 467.12 or 467.13 . . .

[Translation]

Thus, there are three types of offences referred to in relation to a criminal organization offence: the first deals with participation in an offence; the second deals with committing an offence and the third deals with instructing the commission of an offence for a criminal organization.

The first — section 467.11 — is the least serious because subsection 3 states: ``In determining whether an accused participates in or contributes to any activity of a criminal organization — I am translating the English text — the Court may consider, among other factors, whether the accused. . . .'' And I will read the text:

[English]

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the criminal organization.

[Translation]

Therefore, if I wear a jacket with symbols representing a criminal organization — and once again I am looking at Senator Nolin because we discussed this — then it strikes me as being obvious that this offence is less serious than committing an offence or giving orders to commit an offence. That is probably why the sentence is lighter.

Under section 467.11, as you stated, the maximum sentence is five years. It strikes me that if an individual has been influenced by an association of criminal gangsters and this individual wears their symbols, and rents a room to a criminal association, then he is certainly committing a wrongful act. This is not necessarily the individual who will commit all the other acts that that criminal organization may want to commit in order to obtain proceeds, for example, selling drugs or becoming involved in prostitution rings.

As you stated, this is not a guideline, suspended sentences are automatically excluded. However, I do not think that it serves the purpose of reintegrating that citizen or that individual, if, in the opinion of the judge, this is a person who was simply drawn in and could possibly be rehabilitated; instead, that individual is being sent to prison, or to crime school for all intents and purposes.

Mr. Pichette: Most probably, as I mentioned.

Senator Nolin: Are you going to refer to section 467.1, where criminal organization is defined? That is the answer to Senator Joyal's question.

Senator Joyal, go to section 467.11.1, to the definition of ``criminal organization'': group, however organized, that — now go directly to B — has as one of its main purposes or main activities the facilitation or commission of one or more serious offences.

That is where your concern lies, not for a petty theft but rather for a serious offence.

Mr. Brabant: Exactly. And I would like to draw the senator's attention to the fact that when you commit an offence, under section 467.11, this does not simply mean wearing a jacket or accompanying someone. The section says clearly — and this is in fact a challenge for the Crown to prove — and I will read it to you in French:

For the purpose of enhancing the ability of a criminal organization to facilitate or commit an indictable offence under this or any other act of Parliament.

Therefore, this is not simply an individual frequenting a criminal organization. This person is with criminals and can provide them with services.

When an individual is found to be guilty, this means that the judge has evidence — whether that was obtained through wiretapping or statements made to an agent source or through any other means — that this individual truly wanted to assist the organization in committing criminal acts.

I am impressed by this part of the article that can, of course, be difficult to prove. However, through certain means, under certain circumstances, a criminal act was being planned. That is why we think that it is more serious.

With respect to your concern about reintegration, we are not starting with a minimum sentence; the sentence for this offence is incarceration. As I mentioned, we are simply saying that given that probation is still possible, because section 731 applies to section 467.11, there is no minimum sentence at this time. The judge could easily suspend the passing of a sentence and grant probation, or even impose a fine with probation for cases at the other end of the spectrum. What concerns us is when the judge decides that this is a case that merits incarceration and the individual ends up serving his sentence at home.

I think that in the case of a criminal organization, if the judge went as far as saying that this case deserves imprisonment, then the sentence should be served in prison.

The Supreme Court of Canada stated clearly that this was a measure that was less serious that incarceration. There has to be some element of deterrence. That is what I am saying. It cannot be incarceration or nothing. For certain cases there could perhaps be other measures taken.

[English]

Senator Fraser: This is just a little piece of information for you, Mr. Brabant.

Mr. Brabant: Thank you.

Senator Fraser: I do not know my way around the Criminal Code, but last week the Centre for Justice Statistics told us that in 2003-04, chart 11, in almost 90 per cent of the cases of indictable offences with a conditional sentence the plea was guilty. That suggests to me that there might be a correlation between someone who pleads guilty and the decision of whether that person should get a conditional sentence. You do not have to answer that but you said earlier that we did not have statistics. We have at least fragmentary statistics for 2003-04.

Mr. Brabant: Was that the result of plea bargaining? I do not know.

Senator Fraser: We do not know that but at least they did do it.

Mr. Brabant: It is a circumstance.

Senator Fraser: For what it is worth. You may want to ask the clerk to give you a copy of that brief. It was most interesting and was submitted to us on April 26 as part of the document.

Mr. Brabant: Thank you so much.

The Deputy Chairman: We can email the information to you, Mr. Brabant, because we do not have an extra copy tonight.

Mr. Brabant: The secretary has our coordinates.

The Deputy Chairman: Thank for your presentations on both sides of the story. It has been extremely interesting.

Senators, we will meet tomorrow at 10:45 a.m. to begin clause-by-clause consideration of Bill C-9. The clerk has received many requests from the press about the release Premier Graham's letter and brief. Although it is already a public document, she cannot do it without the provision of the committee. Are members agreed?

Senator Joyal: Is it in both languages?

Hon. Senators: Agreed.

The committee adjourned.